46Sending of documents to, and disclosure of documents by, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)

#### 46 Sending of documents to, and disclosure of documents by, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) Sending of documents to courts (1) When an appeal is instituted in the Federal Court of Australia in accordance with section 44 or a question of law is referred to that Court in accordance with section 45: (a) the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3) of this Act, and subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, and subsection 36L(4) of the Australian Crime Commission Act 2002, cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates and are relevant to the appeal or reference; and (b) except in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2)—at the conclusion of the proceeding before the Federal Court of Australia in relation to the appeal or reference, the Court shall cause the documents to be returned to the Tribunal; and (c) in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2): (i) the Federal Court of Australia must cause the documents to be sent to the Federal Circuit and Family Court of Australia (Division 2); and (ii) at the conclusion of the proceedings before the Federal Circuit and Family Court of Australia (Division 2) in relation to the appeal, the Federal Circuit and Family Court of Australia (Division 2) must cause the documents to be returned to the Tribunal. Disclosure of documents by courts (2) If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) of this Act, or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, or subsection 36L(2) of the Australian Crime Commission Act 2002, certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Circuit and Family Court of Australia (Division 2) as mentioned in subparagraph (1)(c)(i). > Note: Subsection 39B(10) of this Act deems certain certificates referred to in that subsection to be certificates under subsection 39B(2). (3) If: (a) the certificate referred to in subsection (2) relating to matter contained in the document does not specify a reason referred to in paragraph 28(2)(a) or (b), 36(1)(a) or (b), 36B(1)(a), or 39B(2)(a) of this Act or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, or paragraph 36L(2)(a) or (b) of the Australian Crime Commission Act 2002, as the case may be; (b) a question for decision by the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) is whether the matter should be disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted or the reference was made; and (c) the court decides that the matter should be so disclosed; the court shall permit the part of the document in which the matter is contained to be inspected accordingly. (3A) If the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) is sent: (a) a copy of any standard (or part thereof) referred to in subsection 39C(2) of this Act; or (b) a document containing any sensitive information referred to in subsection 39C(4); the relevant court must, subject to this section, do all things necessary to ensure that the copy of any standard (or part thereof) or any information contained in it, or the sensitive information, is not disclosed to any person other than: (a) a member of the court as constituted for the purposes of the proceeding; or (b) the Director‑General of Security or the Director‑General’s representative. (3B) However, subsection (3A) does not apply in relation to disclosure to the person who was the applicant, or a person representing the person who was the applicant, in the proceedings before the Tribunal to the extent that the information: (a) has already been lawfully disclosed to the person; or (b) is disclosed to the person with the consent of the Director‑General of Security. (4) Nothing in this section prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court.