64Production of exempt documents

64 Production of exempt documents

(1) Sections 23, 25 and 26 of the Administrative Review Tribunal Act 2024 do not apply in relation to a document that is claimed to be an exempt document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is an exempt document, require the document to be produced for inspection by members of the Tribunal only. (1AA) If, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is: (a) a member of the Tribunal as constituted for the purposes of the proceeding; or (b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or (c) in the circumstances permitted under paragraph 60A(6)(a)—the Inspector‑General of Intelligence and Security. (1A) If, for the purposes of proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, the document is voluntarily produced to the Tribunal, then only: (a) the members of the Tribunal as constituted for the purposes of the review; or (b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; may inspect, or have access to, the document. (2) The Tribunal may require the production, for inspection by members of the Tribunal only, of an exempt document for the purpose of determining whether it is practicable for an agency or a Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document and, where an exempt document is produced by reason of such a requirement, the Tribunal shall, after inspection of the document by the members of the Tribunal as constituted for the purposes of the proceeding, return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is: (a) a member of the Tribunal as constituted for the purposes of the proceeding; or (b) a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or (c) in the circumstances permitted under paragraph 60A(6)(a)—the Inspector‑General of Intelligence and Security.

Note: The Tribunal is not entitled, under this section, to require production of documents that are exempt under section 33, 34 or 45A, but is entitled to do so under section 58E if the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document.

(4A) In making an order for the purposes of subsection (1) or (2), the Tribunal may require the relevant document to be produced at any time later than 28 days after the decision‑maker was given notice of the application, even if that time is before the Tribunal has begun to hear argument or otherwise deal with the matter. (5) Subsections (1), (1A) and (2) apply in relation to a document in the possession of a Minister that is claimed by the Minister not to be an official document of the Minister as if references in those subsections to an exempt document were references to a document in the possession of a Minister that is not an official document of the Minister. (6) Subsection (1), (1A) or (2) does not operate so as to prevent the Tribunal from causing a document produced in accordance with that subsection to be sent to the Federal Court of Australia in accordance with section 187 of the Administrative Review Tribunal Act 2024, but, where such a document is so sent to the Court, the Court shall do all things necessary to ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than a member of the Court as constituted for the purpose of the proceeding before the Court or a member of the staff of the Court in the course of the performance of his or her duties as a member of that staff. (7) Subsection (6) does not prevent the Federal Court of Australia from causing the document concerned to be sent to the Federal Circuit and Family Court of Australia (Division 2) as mentioned in paragraph 187(2)(a) of the Administrative Review Tribunal Act 2024. (8) If a document produced in accordance with subsection (1), (1A) or (2) is sent to the Federal Circuit and Family Court of Australia (Division 2) as mentioned in paragraph 187(2)(a) of the Administrative Review Tribunal Act 2024, the Federal Circuit and Family Court of Australia (Division 2) must do all things necessary to ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than: (a) the Judge who constitutes the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the proceeding before the Federal Circuit and Family Court of Australia (Division 2); or (b) a member of the staff of the Federal Circuit and Family Court of Australia (Division 2) in the course of the performance of his or her duties as a member of that staff.