Administrative Review Tribunal Act 2024 (40 of 2024)

Part 6   Proceedings in Intelligence and Security jurisdictional area

Division 4   Disclosure of information

161   Public interest certificates - responsible Minister

When this section applies

 

(1) This section applies:

(a) in relation to a proceeding for review of an intelligence and security decision, other than an exempt security record decision; and

(b) instead of the following provisions:

(i) section 91 (disclosure of information - public interest certificate);

(ii) section 92 (Attorney-General may intervene for public interest reasons);

(iii) section 112 (notice of decision and statement of reasons - other proceedings) to the extent that it would apply in relation anything done under this section.

Public interest certificate

      

(2) The responsible Minister may certify, in writing, that the disclosure of specified information, or the content of a specified document, in the proceeding would be contrary to the public interest for one or more of the following reasons:

(a) the disclosure would prejudice the security, defence or international relations of the Commonwealth;

(b) the disclosure would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet;

(c) if the proceeding is for review of a criminal intelligence assessment - the disclosure would prejudice law enforcement interests;

(d) any other reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed.

      

(3) A certificate under subsection (2) is not a legislative instrument.

Effect of certificate

      

(4) If a certificate is given under subsection (2) in relation to information or a document, a person is not excused from disclosing the information, or giving the document, to the Tribunal for the purposes of the proceeding if the person is required by or under this Act to do so.

      

(5) However, the Tribunal must do all things necessary to ensure that:

(a) subject to subsection (6), the information or document is not disclosed or given to any person other than:

(i) a member in the course of the performance of the member's duties; or

(ii) the Principal Registrar in the course of the performance of the Principal Registrar's duties; or

(iii) a staff member in the course of the performance of the staff member's duties; and

(b) in the case of a document given to the Tribunal by an agency head - the document is returned, to the agency from which it came, as soon as practicable after the Tribunal has finished considering the document.

Tribunal may allow disclosure in limited cases

      

(6) The Tribunal may decide to make the information or document available to any or all of the parties to the proceeding if the certificate does not specify the reason set out in paragraph (2)(a), (b) or (c).

      

(7) In deciding whether to make the information or document available, the Tribunal must:

(a) take into account as a primary consideration the principle that it is desirable, in the interest of ensuring the effective performance of the Tribunal's functions, for the parties to the proceeding to be made aware of all relevant matters; and

(b) have regard to any reason specified in the certificate.

Responsible Minister is party to proceeding

      

(8) The responsible Minister is a party to the proceeding if:

(a) the certificate does not specify a reason set out in paragraph (2)(a), (b) or (c); and

(b) the responsible Minister would not otherwise be a party to the proceeding.

Notice of public interest decisions

      

(9) If the Tribunal decides to make the information or document available under subsection (6), the Tribunal must, as soon as practicable, give each party to the proceeding reasons for the decision.

Exclusion of other laws

      

(10) This section excludes the operation of any other law that relates to the public interest and would otherwise apply in relation to the disclosure of information, or of the content of documents, in a proceeding in the Tribunal.

Delegation - security clearance decisions and security clearance suitability assessments

      

(11) The ASIO Minister may, in writing, delegate the ASIO Minister's power under subsection (2) in relation to a security clearance decision or a security clearance suitability assessment to:

(a) the Director-General of Security; or

(b) an ASIO employee (within the meaning of the ASIO Act), or an ASIO affiliate (within the meaning of that Act), who holds, or is acting in, a position in ASIO that is equivalent to or higher than a position occupied by an SES employee.

      

(12) In exercising a power under the delegation, the delegate must comply with any written directions of the ASIO Minister.