Commonwealth Consolidated Acts

ADMINISTRATIVE REVIEW TRIBUNAL ACT 2024 - SECT 158

When this section applies

  (1)   This section applies in relation to a proceeding for review of an intelligence and security decision, other than an exempt security record decision.

  (2)   This section applies in relation to evidence to be adduced or a submission to be made by or on behalf of any of the following:

  (a)   the agency head;

  (b)   a relevant body;

  (c)   an officer or employee of the agency head's agency;

  (d)   an officer or employee of a relevant body;

  (e)   a person connected with the agency or a relevant body.

Security certificates by responsible Ministers

  (3)   The responsible Minister may certify, in writing, that disclosing the evidence or making the submission would be contrary to the public interest because it would prejudice:

  (a)   in any case--the security, defence or international relations of the Commonwealth; or

  (b)   in the case of a criminal intelligence assessment decision--law enforcement interests.

  (4)   If the responsible Minister so certifies, when the evidence is adduced or the submission is made:

  (a)   the applicant must not be present; and

  (b)   the applicant's representative must not be present except with the consent of the responsible Minister.

  (5)   A certificate under this section is not a legislative instrument.

Delegation--security clearance decisions and security clearance suitability assessments

  (6)   The ASIO Minister may, in writing, delegate the ASIO Minister's power under subsection   (3) in relation to a security clearance decision or a security clearance suitability assessment to:

  (a)   the Director - General of Security; or

  (b)   an ASIO employee (within the meaning of the ASIO Act), or an ASIO affiliate (within the meaning of that Act), who holds, or is acting in, a position in ASIO that is equivalent to or higher than a position occupied by an SES employee.

  (7)   In exercising a power under the delegation, the delegate must comply with any written directions of the ASIO Minister.

Offence

  (8)   An applicant's representative commits an offence if:

  (a)   a certificate is given under subsection   (3) in relation to evidence or a submission; and

  (b)   the representative is present when the evidence is adduced or the submission is made; and

  (c)   the representative discloses the evidence, or any information that was part of the submission, to the applicant or to any other person.

Penalty:   Imprisonment for 2 years.