Foreign Acquisitions and Takeovers Act 1975

PART 7 - ADMINISTRATIVE PROVISIONS  

Division 4 - Review of decisions  

SECTION 130H   CERTAIN DOCUMENTS AND INFORMATION NOT TO BE DISCLOSED IN REVIEW OF REVIEWABLE DECISION  

Scope

130H(1)    
This section applies to a proceeding in which the Tribunal reviews a reviewable decision.

Treasurer may issue public interest certificate

130H(2)    
If the Treasurer certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:

(a)    because it would prejudice Australia ' s national security; or

(b)    because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or

(c)    for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the document should not be disclosed;

the following provisions of this section have effect.

Note: See also subsection (11) .

Protection of information etc.

130H(3)    
A person who is required by or under this Act or the AAT Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4) , (5) and (7) and section 46 of the AAT Act, do all things necessary to ensure:

(a)    that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and

(b)    in respect of a document produced to the Tribunal - that the document is returned to the person by whom it was produced.

130H(4)    
Subsection (3) does not apply in relation to disclosure to the Treasurer or the Treasurer ' s representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a) .

Disclosure of information etc.

130H(5)    
If:

(a)    the Treasurer has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph (2)(a) or (b) ; and

(b)    the presiding member presiding is satisfied that the interests of justice outweigh the reason stated by the Treasurer;

the presiding member may authorise the disclosure of the information, or of the contents of the document to, the applicant.

What presiding member must consider in deciding whether to authorise disclosure of information etc.

130H(6)    
In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5) :

(a)    the presiding member must take as the basis of the presiding member ' s consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but

(b)    the presiding member must pay due regard to any reason stated by the Treasurer in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest.

Disclosure of information etc. to staff of Tribunal

130H(7)    
This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal ' s staff in the course of the performance of the person ' s duties as a member of the Tribunal ' s staff.

Public interest

130H(8)    
This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.

Copy of document

130H(9)    
If the Treasurer has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first-mentioned document as if the copy were the original document.

Duty of Tribunal

130H(10)    
It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.

Public interest certificate not a legislative instrument

130H(11)    
A certificate made under subsection (2) is not a legislative instrument.