(a) in accordance with paragraph (1)(a) or (b); or
(b) in accordance with a declaration under subsection (3);
the divulging or communication, as the case may be, is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.
(8) If any Act (whether passed before or after the commencement of this section) provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise.
Note: This section is specified in Schedule 3 to the Freedom of Information Act 1982 with the effect that documents containing information protected from disclosure by this section are exempt documents under that Act.
(9) In this section:
Australian law enforcement or intelligence body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in, or in a part of, Australia.
authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.
Commonwealth officer has the same meaning as in section 121.1 of the Criminal Code.
Note: A Minister is not a Commonwealth officer.
foreign law enforcement body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in a foreign country or a part of a foreign country.
gazetted agency means:
(a) in the case of an Australian law enforcement or intelligence body—a body specified in a notice published by the Minister in the Gazette; or
(b) in the case of a foreign law enforcement body—a body in a foreign country, or a part of a foreign country, that is a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette; or
(c) a war crimes tribunal established by or under international arrangements or international law.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
503B Protection of confidential information disclosed to Federal Court or Federal Circuit and Family Court of Australia (Division 2)—permanent non‑disclosure orders
Court may make non‑disclosure orders
(1) If:
(a) either:
(i) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA; or
(ii) information is communicated to the Minister or an authorised migration officer in accordance with paragraph 503A(1)(a) or (b); and
(b) the information is relevant to proceedings (the substantive proceedings) before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that relate to section 501, 501A, 501B, 501BA, 501C or 501CA; and
(c) no declaration is in force under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings;
the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force and the information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), the information is not divulged or communicated to:
(d) the applicant in relation to the substantive proceedings; or
(e) the legal representative of the applicant in relation to the substantive proceedings; or
(f) any other member of the public.
(2) The orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (1) include:
(a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the substantive proceedings; or
(b) an order that no report of the whole of, or a specified part of, or relating to, the substantive proceedings is to be published; or
(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), has access to a file or a record of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that contains the information.
(3) Subsection (2) does not limit subsection (1).
(4) The powers of the Federal Court under this section are to be exercised by a single Judge of that Court, and the powers of the Federal Circuit and Family Court of Australia (Division 2) under this section are to be exercised by a single Judge of that Court.
Criteria for making non‑disclosure order
(5) In exercising its powers under subsection (1), the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) must have regard to all of the following matters:
(a) the fact that the information was communicated, or originally communicated, to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information;
(b) Australia’s relations with other countries;
(c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;
(d) in a case where the information was derived from an informant—the protection and safety of informants and of persons associated with informants;
(e) the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with, criminal intelligence or security intelligence;
(f) Australia’s national security;
(g) the fact that the disclosure of information may discourage gazetted agencies and informants from giving information in the future;
(h) the effectiveness of the investigations of official inquiries and Royal Commissions;
(i) the interests of the administration of justice;
(j) such other matters (if any) as are specified in the regulations;
and must not have regard to any other matters.
Disclosure of information for the purposes of deciding whether or not to make a non‑disclosure order
(6) If an application is made under subsection (1) in relation to particular information, subsections 503A(1) and (2) do not prevent the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of enabling the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to make a decision on the application.
(7) If information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (6):
(a) the information is not to be treated as having been disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings; and
(b) the information may only be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings if a fresh disclosure of the information is made in accordance with a declaration under subsection 503A(3).
Variation or revocation of non‑disclosure order
(8) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, by order, vary or revoke an order made by it under subsection (1) if both:
(a) the Minister; and
(b) the applicant in relation to the substantive proceedings;
consent to the variation or revocation.
Withdrawal of application for non‑disclosure order
(9) The Minister may withdraw an application under subsection (1) at any time.
Declarations under subsection 503A(3)
(10) This section does not prevent the Minister from making a declaration at any time under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for the purposes of the substantive proceedings, even if that time occurs while the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) is considering whether to make an order under subsection (1).
(11) To avoid doubt, the Minister may refuse to make a declaration under subsection 503A(3) even if the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) has made an order under subsection (1) of this section in relation to the information concerned.
Offence
(12) A person commits an offence if:
(a) an order is in force under subsection (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
(13) This section has effect despite anything in:
(a) any other provision of this Act; or
(b) any other law of the Commonwealth.
Applicant
(14) For the purposes of this section, the table has effect:
Applicant
Item In the case of these proceedings... the applicant is...
1 Proceedings within the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under section 476 of this Act, including proceedings arising from:(a) a remittal under section 44 of the Judiciary Act 1903; or(b) a transfer under section 32AB of the Federal Court of Australia Act 1976. the person seeking the remedy to be granted in exercise of that jurisdiction.
2 Proceedings within the Federal Court’s jurisdiction under section 476A of this Act, including proceedings arising from a remittal under section 44 of the Judiciary Act 1903. the person seeking the remedy to be granted in exercise of that jurisdiction.
3 Proceedings within the Federal Court’s appellate jurisdiction arising from proceedings (the original proceedings) mentioned in item 1 or 2. the person who was the applicant for the original proceedings.
4 (a) proceedings by way of a referral of a question of law arising before the Administrative Review Tribunal;(b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a). the person who applied to the Administrative Review Tribunal for a review of the decision concerned.
Definitions
(15) In this section:
authorised migration officer has the same meaning as in section 503A.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
gazetted agency has the same meaning as in section 503A.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
Royal Commission means a Royal Commission (however described) under a law of the Commonwealth, a State or a Territory.
503C Protection of confidential information disclosed to Federal Court or Federal Circuit and Family Court of Australia (Division 2)—interim non‑disclosure orders
Notice of intention to apply for a permanent non‑disclosure order
(1) At least 7 days before making an application for an order under subsection 503B(1) in relation to particular information, the Minister must give the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) written notice of the Minister’s intention to make the application.
(2) A notice under subsection (1) need not identify any of the attributes of the information.
Interim non‑disclosure order
(3) If:
(a) a notice is given under subsection (1); and
(b) the notice relates to the Minister’s intention to make an application for an order under subsection 503B(1) in relation to particular information;
the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) considers appropriate for the purpose of ensuring that, in the event that the subsection 503B(1) application is made and the information is disclosed to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in accordance with subsection 503B(6), the information is not divulged or communicated in circumstances that might, to any extent, undermine, prejudice or pre‑empt:
(c) the consideration of the subsection 503B(1) application by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2); or
(d) the Minister’s consideration of whether to make a declaration under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
(4) The orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (3) include:
(a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the subsection 503B(1) application; or
(b) an order that no report of the whole of, or a specified part of, or relating to, the subsection 503B(1) application is to be published; or
(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), has access to a file or a record of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that contains the information.
(5) Subsection (4) does not limit subsection (3).
(6) The powers of the Federal Court under this section are to be exercised by a single Judge of that Court, and the powers of the Federal Circuit and Family Court of Australia (Division 2) under this section are to be exercised by a single Judge of that Court.
Variation or revocation of non‑disclosure order
(7) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, by order, vary or revoke an order made by it under subsection (3) if both:
(a) the Minister; and
(b) the applicant in relation to the substantive proceedings concerned;
consent to the variation or revocation.
Offence
(8) A person commits an offence if:
(a) an order is in force under subsection (3); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: Imprisonment for 2 years.
Relationship to other laws
(9) This section has effect despite anything in:
(a) any other provision of this Act; or
(b) any other law of the Commonwealth.
Definition
(10) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
503D Details of gazetted agency to be treated as protected information
(1) If section 503A or 503B applies to information communicated by a gazetted agency to an authorised migration officer so that the information cannot be divulged or communicated except as provided for in sections 503A, 503B and 503C, then sections 503A, 503B and 503C apply to similarly protect the agency’s details from being divulged or communicated as if the details were the information communicated by the agency.
(2) A reference in subsection (1) to agency’s details is a reference to any information in relation to the gazetted agency including the agency’s name and the conditions on which the communication of information by the agency occurred.
(3) In this section:
gazetted agency has the same meaning as in section 503A.
503E Validation of decisions
(1) If:
(a) section 503A is not a valid law of the Commonwealth (in whole or in part); and
(b) the Minister made a decision under section 501, 501A, 501B, 501BA, 501C or 501CA before the commencement of this section;
the decision is not invalid, and is taken never to have been invalid, merely because:
(c) the Minister:
(i) relied on; or
(ii) had regard to; or
(iii) failed to disclose in accordance with any applicable common law or statutory obligation;
information that was covered, or purportedly covered, by subsection 503A(1) or (2); or
(d) the Minister made the decision on the basis of an erroneous understanding of:
(i) section 503A; or
(ii) the protection that section 503A would provide against an obligation to disclose information.
(2) However, subsection (1) does not affect rights or liabilities arising between parties to proceedings in which:
(a) judgment is reserved by a court as at the commencement of this section; or
(b) judgment has been delivered by a court before the commencement of this section;
and the judgment sets aside, or declares invalid, a decision made by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA.
504 Regulations
(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:
(a) making provision for and in relation to:
(i) the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or
(ii) the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department;
(iii) the way, including the currency, in which fees are to be paid; or
(iv) the persons who may be paid fees on behalf of the Commonwealth;
(b) making provision for the remission, refund or waiver of fees of a kind referred to in paragraph (a) or for exempting persons from the payment of such fees;