Evidence Act 2011

If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be presented as evidence.

The court may give a direction under subsection (1) on its own initiative or on the application of any person (whether or not the person is a party).

In deciding whether to give the direction, the court may inform itself in any way it thinks fit.

Without limiting the circumstances in which information or a document may be taken for subsection (1) to relate to matters of state, the information or document is taken for that subsection to relate to matters of state if presenting it as evidence would—

prejudice the security, defence or international relations of Australia; or

damage relations between the Commonwealth and a State or between 2 or more States; or

prejudice the prevention, investigation or prosecution of an offence; or

prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought in relation to, other contraventions of the law; or

disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

prejudice the proper functioning of the government of the Commonwealth or a State.

Without limiting the matters the court may take into account for subsection (1), it must take into account the following matters:

the importance of the information or the document in the proceeding;

if the proceeding is a criminal proceeding—whether the party seeking to present evidence of the information or document is a defendant or the prosecutor;

the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

the likely effect of presenting evidence of the information or document, and the means available to limit its publication;

whether the substance of the information or document has already been published;

if the proceeding is a criminal proceeding and the party seeking to present evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.

A reference in this section to a State includes a reference to a Territory.