Administrative Review Tribunal Act 2024 (40 of 2024)

Part 4   Proceedings

Division 7   Public interest certificates and interventions

91   Disclosure of information - public interest certificate

Public interest certificate - Attorney-General of the Commonwealth

 

(1) The Attorney-General of the Commonwealth may certify, in writing, that the disclosure of specified information, or the content of a specified document, in a proceeding in the Tribunal 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) 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.

Public interest certificate - Attorney-General of State, Australian Capital Territory or Northern Territory

      

(2) The Attorney-General of a State, the Australian Capital Territory or the Northern Territory may certify, in writing, that the disclosure of specified information, or of the content of a specified document, in a proceeding in the Tribunal would be contrary to the public interest for one or more of the following reasons:

(a) the disclosure would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State or Territory;

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

Effect of certificate

      

(3) If a certificate is given under this section in relation to information or a document in relation to a proceeding, 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.

      

(4) 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 - the document is returned, to the person who gave it to the Tribunal, as soon as practicable after the Tribunal has finished considering the document.

      

(5) A certificate under subsection (1) or (2) is not a legislative instrument.

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 either of the following applies:

(a) the certificate was given by the Attorney-General of the Commonwealth other than for the reason set out in paragraph (1)(a) or (b);

(b) the certificate was given by the Attorney-General of a State or Territory other than for the reason set out in paragraph (2)(a).

      

(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.

      

(8) For the purposes of making a decision under subsection (6), the Tribunal must be constituted:

(a) as if the making of the decision were a separate proceeding; and

(b) by a member who is, or by members at least one of whom is, a Judge or a Deputy President.

Exclusion of other laws

      

(9) This section excludes the operation of any 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.