Section 503B — Protection of confidential information disclosed to Federal Court or Federal Circuit and Family Court of Australia (Division 2)—permanent non-disclosure orders

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 the person seeking the remedy to be of the Federal Circuit and Family granted in exercise of that Court of Australia (Division 2) jurisdiction. 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.

2 Proceedings within the Federal the person seeking the remedy to be Court’s jurisdiction under granted in exercise of that section 476A of this Act, including jurisdiction. proceedings arising from a remittal under section 44 of the Judiciary Act 1903. 3 Proceedings within the Federal the person who was the applicant for Court’s appellate jurisdiction arising the original proceedings. from proceedings (the original proceedings) mentioned in item 1 or 2.

Applicant Item In the case of these proceedings... the applicant is... 4 (a) proceedings by way of a referral the person who applied to the of a question of law arising Administrative Review Tribunal for before the Administrative a review of the decision concerned. Review Tribunal;

(b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a).

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.