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ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 39A

Procedure in Security Division review of security assessment

Review of security assessment

             (1)  If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section.

Parties

             (2)  The parties to the proceeding are the Director-General of Security and the applicant, but the Commonwealth agency, State or authority of a State to which the assessment is given is entitled to adduce evidence and make submissions.

Director-General of Security must present all relevant information

             (3)  It is the duty of the Director-General of Security to present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the applicant.

Member may require parties to attend etc.

             (4)  A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.

Proceedings to be in private

             (5)  The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time.

Right of parties etc. to be present

             (6)  Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director-General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given.

             (7)  The Director-General of Security or a person representing the Director-General, and a person representing the Commonwealth agency, State or authority of a State to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.

Security/defence certificate

             (8)  The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.

             (9)  If such a certificate is given:

                     (a)  the applicant must not be present when the evidence is adduced or the submissions are made; and

                     (b)  a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents.

           (10)  If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.

Penalty:  Imprisonment for 2 years.

Note:          Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

Protection of identity of person giving evidence

           (11)  If the Director-General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General of Security is not revealed.

Evidence and submissions

           (12)  The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director-General of Security and any evidence or submissions that the Commonwealth agency, State or authority of a State to which the assessment was given may wish to adduce or make.

           (13)  The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal.

           (14)  The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence.

           (15)  If a person invited or summoned to give evidence under subsection (14) is:

                     (a)  an ASIO employee or ASIO affiliate; or

                     (b)  an officer or employee of the Commonwealth agency, State or authority of a State to which the assessment was given;

subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director-General of Security or that agency, State or authority, as the case may be.

           (16)  If:

                     (a)  a party presents his or her case to the Tribunal; and

                     (b)  after that case has been presented, the other party adduces evidence; and

                     (c)  the Tribunal thinks that, because of evidence adduced by the other party, the first-mentioned party should be further heard;

the Tribunal must give the first-mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates.

           (17)  A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question.

Dismissal of application

           (18)  If the applicant fails within a reasonable time:

                     (a)  to proceed with the application; or

                     (b)  to comply with a direction by the Tribunal in relation to the application;

the President or an authorised member may dismiss the application without proceeding to review the security assessment.



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