Document ID: chunk:federal_register_of_legislation:C2022C00001:section:39
Version: federal_register_of_legislation:C2022C00001
Segment Type: section
Provision Reference: s 39
Character Range: 118563–121346

39  Security clearance for defendant's legal representative etc.
 (1) This section applies if, before or during a federal criminal proceeding, the Secretary of the Attorney‑General's Department gives written notice to any of the following persons:
 (a) a legal representative of the defendant;
 (b) a person assisting a legal representative of the defendant;
that in the proceeding an issue is likely to arise relating to a disclosure, of information in the proceeding, that is likely to prejudice national security.
 (1A) 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.

Person may apply for security clearance
 (2) 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.
Note 1: Security clearances are given in accordance with the Australian Government Protective Security Manual.
Note 2: 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 46.

Adjournment to allow sufficient time for defendant's legal representative to be given security clearance
 (3) The defendant, or the defendant's legal representative (on the defendant's behalf), may apply to the court for a deferral or adjournment of the proceeding until:
 (a) the legal representative has been given a security clearance at the level considered appropriate by the Secretary in relation to the information; or
 (b) if the legal representative is not given such a security clearance—another legal representative is given such a security clearance.
 (4) The court must defer or adjourn the proceeding accordingly.

Prosecutor may advise the court that the defendant's legal representative has not been given a security clearance etc.
 (5) If the defendant's 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:
 (a) the prosecutor may advise the court of the fact; and
 (b) the court may:
 (i) advise the defendant 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
 (ii) recommend that the defendant engage a legal representative who has been given, or is prepared to apply for, such a security clearance.

Division 2—Security clearances required in civil proceedings