90Determination of privilege claim

90 Determination of privilege claim (1) On an application under section 89, the Supreme Court is to determine whether or not the item or other evidence is the subject of privilege in whole or part. (2) For making a determination, the Judge constituting the Supreme Court and any other person authorised by the Court may: (a) open the sealed envelope or otherwise access the item or other evidence; and (b) inspect the item or other evidence. (3) If the Supreme Court determines that the whole of the item or other evidence is the subject of privilege, the Court must order that the item or other evidence be returned to the claimant or claimant's representative. (4) If the Supreme Court determines that the whole of the item or other evidence is not the subject of privilege the Court must order that the item or other evidence be given to the ICAC. (5) If the Supreme Court determines that part of the item or other evidence is the subject of privilege (the privileged part) and part is not (the non-privileged part): (a) if the item or other evidence is able to be divided into the privileged part and the non-privileged part – the Court must divide the item or other evidence and order that the privileged part be returned to the claimant or claimant's representative and the non-privileged part be given to the ICAC; or

Independent Commissioner Against Corruption Act 2017 68 (b) if paragraph (a) does not apply but the Court considers it possible to produce a copy of the item or other evidence from which the privileged part has been removed: (i) the Court must make orders the Court considers appropriate for production of the copy; and (ii) the Court must order that the copy be given to the ICAC and the item or other evidence be returned to the claimant or claimant's representative; or (c) otherwise – the Court must order that the item or other evidence be returned to the claimant or claimant's representative. (6) Except as provided in subsection (2), a person must not open a sealed envelope containing the item or other evidence, or otherwise have access to the item or other evidence, before: (a) the Supreme Court determines the claim of privilege; or (b) the item or other evidence is returned to the claimant. (7) A person commits an offence if: (b) the conduct results in a contravention of subsection (6) and the person is reckless in relation to the result. 12 months.