National Security Information (Criminal and Civil Proceedings) Act 2004

This section applies if, in a civil proceeding, the Secretary of the Attorney‑General’s Department gives written notice to any of the following persons:

a party to the proceeding;

a party’s legal representative;

a person assisting a party’s legal representative;

When considering, for the purposes of subsection (1), whether a disclosure of the information would be likely to prejudice national security, the Secretary is to consider the nature of the information itself, and not the character of the person to whom it is to be disclosed.

A person who receives a notice under subsection (1) may apply to the Secretary for a security clearance at the level considered appropriate by the Secretary in relation to the information.

Security clearances are given in accordance with the Australian Government Protective Security Manual.

If the person does not obtain the security clearance, anyone who discloses such information to the person will, except in limited circumstances, commit an offence under section 46G.

A party to the proceeding, or the party’s legal representative (on the party’s behalf), may apply to the court for a deferral or adjournment of the proceeding to allow time for:

a person who receives a notice under subsection (1) to apply for and be given a security clearance at the level considered appropriate by the Secretary in relation to the information; or

if the party’s legal representative is not given such a security clearance—another legal representative to apply for and be given such a security clearance.

The court must defer or adjourn the proceeding accordingly.

If:

a party is not given a security clearance; or

a party does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows;

the Secretary may advise the court of the fact; and

the court may advise the party of the consequences of not being given a security clearance at the level considered appropriate by the Secretary in relation to the information and:

if the party is not given a security clearance and has not engaged a legal representative—recommend that the party engage a legal representative who has been given, or is prepared to apply for, such a security clearance; or

if the party has not applied for the security clearance and has not engaged a legal representative—recommend that the party apply for the security clearance or engage a legal representative who has been given, or is prepared to apply for, such a security clearance.

If:

a party’s legal representative or a person assisting the legal representative is not given a security clearance; or

a party’s legal representative or a person assisting the legal representative does not apply for the security clearance within 14 days after the day on which the notice is received, or within such further period as the Secretary allows;

the Secretary may advise the court of the fact; and

the court may:

advise the relevant party of the consequences of engaging a legal representative who has not been given a security clearance at the level considered appropriate by the Secretary in relation to the information; and

recommend that the relevant party engage a legal representative who has been given, or is prepared to apply for, such a security clearance.

A notice given under subsection (1) is not a legislative instrument.