National Security Information (Criminal and Civil Proceedings) Act 2004

This section applies after the Attorney‑General discloses information to a special advocate of a party to a civil proceeding under subsection 38PE(2) in relation to the proceeding.

The special advocate must not communicate with any person about any matter connected with the proceeding, other than communicating:

with:

the magistrate, judge or judges comprising the court; or

the applicant in the proceedings for the control order, or the applicant’s legal representative, except if the applicant is or would be the subject of the control order; or

the applicant in the Division 105A ESO proceedings, or the applicant’s legal representative, except if the applicant is or would be the subject of the extended supervision order; or

the Attorney‑General, the Attorney‑General’s legal representative or any other representative of the Attorney‑General; or

with the party or the party’s legal representative in accordance with subsections (3) and (4) or (10); or

with any other person if the communication is:

about matters not connected with the substance of the proceeding; and

necessary for administrative purposes.

The special advocate commits an offence if he or she contravenes this subsection: see subsection 46H(3).

The restriction in this subsection continues to apply to communication by the special advocate after the proceeding ends, or after he or she ceases to be a special advocate: see section 38PG.

The special advocate may submit a written communication to the court for the court’s approval and for forwarding to the relevant person or the person’s legal representative.

The court must:

if the court is satisfied that the communication is not likely to prejudice national security—forward the communication without amendment to the relevant person or the person’s legal representative; or

if paragraph (a) does not apply:

amend the communication to the extent necessary for the court to be satisfied that the communication is not likely to prejudice national security; and

forward the amended communication to the relevant person or the person’s legal representative; or

if paragraph (a) does not apply and the court is satisfied that it is not practicable to amend the communication so that it is not likely to prejudice national security:

decline to forward the communication; and

notify the special advocate of that decision.

The court may consult the Attorney‑General, the Attorney‑General’s legal representative or any other representative of the Attorney‑General before making a decision under subsection (4).

If the court forwards a communication from the special advocate to the relevant person or the person’s legal representative under paragraph (4)(a) or (b), the court must give a description of the communication to:

the applicant in the proceedings for the control order or the Division 105A ESO proceedings, or the applicant’s legal representative, except if the applicant is or would be the subject of the control order or extended supervision order; or

the Attorney‑General, the Attorney‑General’s legal representative or any other representative of the Attorney‑General.

The description must not disclose information that is the subject of legal professional privilege (see subsection 38PC(2)).

The party may communicate with the special advocate about any matter connected with the proceeding only in writing through the party’s legal representative.

The party commits an offence if he or she contravenes this subsection: see subsection 46H(4).

The party’s legal representative may communicate with the special advocate about any matter connected with the proceeding only in writing.

The party’s legal representative commits an offence if he or she contravenes this subsection: see subsection 46H(5).

The special advocate may give to the party or the party’s legal representative a bare acknowledgement of receipt of a written communication to which subsection (8) or (9) applies.

The special advocate may also reply to the communication through the court in accordance with subsections (3) and (4).