39BCertain documents and information not to be disclosed in certain Security Division reviews

#### 39B Certain documents and information not to be disclosed in certain Security Division reviews Scope (1) This section applies to a proceeding in the Security Division to which section 39A or 39BA applies. ASIO Minister may issue public interest certificate (2) If the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest: (a) because it would prejudice security or the defence or international relations of Australia; or (b) because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or (c) for any other reason stated in the certificate 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 contents of the document should not be disclosed; the following provisions of this section have effect. Protection of information etc. (3) A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure: (a) that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and (b) in respect of a document produced to the Tribunal—that the document is returned to the person by whom it was produced. (4) Subsection (3) does not apply in relation to disclosure to the Director‑General of Security or his or her representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a). Disclosure of information etc. (5) If: (a) the ASIO Minister has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph (2)(a) or (b); and (b) the presiding member presiding is satisfied that the interests of justice outweigh the reason stated by the ASIO Minister; the presiding member may authorise the disclosure of the information, or of the contents of the document to, the applicant. What presiding member must consider in deciding whether to authorise disclosure of information etc. (6) In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5): (a) the presiding member must take as the basis of his or her consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but (b) the presiding member must pay due regard to any reason stated by the ASIO Minister in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest. Disclosure of information etc. to staff of Tribunal (7) This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal’s staff in the course of the performance of his or her duties as a member of the Tribunal’s staff. Public interest (8) This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding. Copy of document (9) If the ASIO Minister has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first‑mentioned document as if the copy were the original document. Certificate lodged under section 38A (10) For the purposes of this section, if the Director‑General of Security, in accordance with subsection 38A(1), (1A) or (1B), has lodged with the Tribunal a certificate of the ASIO Minister given under subsection 38(2), 83A(4) or 83C(6) of the Australian Security Intelligence Organisation Act 1979, the certificate is taken to be a certificate under subsection (2) of this section certifying to the Tribunal that the disclosure of the information to which the certificate relates would be contrary to the public interest because it would prejudice security. Duty of Tribunal (11) It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security. (12) The ASIO Minister may, by signed writing, delegate the ASIO Minister’s power under subsection (2), to the extent it applies in relation to review of a security clearance decision or security clearance suitability assessment, to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee. (13) In exercising a power under a delegation under subsection (12), the delegate must comply with any written directions of the ASIO Minister.