Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section applies in a proceeding before the Tribunal under this Act in relation to a document that:
(a) is claimed to be an exempt document under section 33 (national security documents); and
(b) relates directly or indirectly to:
(i) the performance of the functions or duties, or the exercise of the powers, of a body mentioned in paragraph (a) of the definition of intelligence agency in subsection 3(1) of the Inspector - General of Intelligence and Security Act 1986 ; or
(ii) the performance of an intelligence function (within the meaning of that Act) of a body mentioned in paragraph (b) of that definition; and
(c) is not a document of the Inspector - General of Intelligence and Security.
(2) Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector - General of Intelligence and Security to appear personally and give evidence on:
(a) the damage that would, or could reasonably be expected to, be caused to:
(i) the security of the Commonwealth; or
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth;
if access to the document were given in accordance with the request; or
(b) whether giving access to the document in accordance with the request would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
(3) Before determining that an agency or Minister must grant access to a copy of the document with deletions, the Tribunal must request the Inspector - General to appear personally and give evidence on:
(a) the damage that would, or could reasonably be expected to, be caused to:
(i) the security of the Commonwealth; or
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth;
if the proposed deletions were not made; or
(b) whether giving access to the document without the proposed deletions would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
(4) Before hearing the evidence of the Inspector - General, the Tribunal must hear any evidence to be given or submissions to be made by or on behalf of the agency to which or the Minister to whom the request was made for access to the document.
(5) The Inspector - General must comply with a request under subsection (2) or (3) unless, in the opinion of the Inspector - General, the Inspector - General is not appropriately qualified to give evidence on the matters in relation to which the Inspector - General has been requested to give evidence.
(6) For the purposes of enabling the Inspector - General to comply with a request under subsection (2) or (3):
(a) the Tribunal must allow the Inspector - General to take possession of, and make copies of or take extracts from, any document given to the Tribunal for the purposes of the proceeding; and
(b) the Inspector - General may require the production of the document that is claimed to be an exempt document under section 33 by the agency to which or the Minister to whom the request was made for access to the document; and
(c) the Inspector - General may require the production of any document of an agency or official document of a Minister that relates to the document mentioned in paragraph (b) by the agency or Minister; and
(d) the Inspector - General may make copies of, or take extracts from, the documents mentioned in paragraphs (b) and (c); and
(e) after such period as is reasonably necessary for the purposes of giving evidence to the Tribunal, the Inspector - General must:
(i) return the original of any document to the Tribunal or to the agency or Minister; and
(ii) destroy any copies of or extracts taken from any document.
(7) The Inspector - General must permit a person who would be entitled to inspect a document mentioned in paragraphs (6)(a) to (d) if it were not in the possession of the Inspector - General to inspect the document at all reasonable times as the person would be so entitled.
(8) The Tribunal is not bound by any opinion of the Inspector - General expressed while giving evidence under this section.
(9) The Tribunal must allow the Inspector - General a period within which to consider the documents mentioned in paragraphs (6)(a) to (d) that is reasonable having regard to:
(a) the nature of the evidence that the Inspector - General has been requested to give; and
(b) the time required by the Inspector - General to perform the Inspector - General's other functions.
(10) The fact that a person is obliged to produce a document under subsection (6) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.