Victorian Current Acts Victorian Current ActsS. 32(1) amended by No. 47/2021 s. 15(1).
(1) If a special counsel is appointed under section 32(1) or (2A)—
(a) before the hearing of the protection application the applicant must serve on the special counsel—
S. 33(1)(a)(i) substituted by No. 47/2021 s. 15(2).
(i) a summary of the grounds on which the protection application is made; and
S. 33(1)(a)(ia) inserted by No. 47/2021 s. 15(2).
(ia) if the protection application is made in respect of a substantive application, the grounds on which that application is made; and
S. 33(1)(a)(ib) inserted by No. 47/2021 s. 15(2).
(ib) the evidence on which the applicant seeks to rely to the extent possible without revealing any relevant information; and
S. 33(1)(a)(ii) amended by No. 47/2021 s. 15(3).
(ii) after the special counsel has had an opportunity to communicate with the subject of the substantive application or hearing, or a representative of the subject, under paragraph (b)—a copy of the protection application, any affidavit required to be given to the Supreme Court in support of the protection application and the relevant information; and
S. 33(1)(b) amended by No. 47/2021 s. 15(4).
(b) at any time before the special counsel obtains any relevant information, the special counsel may communicate with the subject of the substantive application or hearing, or a representative of the subject, for the purposes of obtaining information from the subject or representative in relation to the protection application or the substantive application or hearing; and
S. 33(1)(c) amended by No. 47/2021 s. 15(5).
(c) at any time after the special counsel obtains any relevant information, the special counsel must not communicate with the subject of the substantive application or hearing or a representative of the subject.
S. 33(2) amended by No. 47/2021 s. 15(6).
(2) If a special counsel is appointed under section 32(3) or (4)—
S. 33(2)(a) amended by No. 47/2021 s. 15(7).
(a) before the hearing of the relevant part of the proceeding on the substantive application or hearing the applicant must serve on the special counsel—
S. 33(2)(a)(i) substituted by No. 47/2021 s. 15(8).
(i) a summary of the grounds on which the protection application was made; and
S. 33(2)(a)(ia) inserted by No. 47/2021 s. 15(8).
(ia) if the protection application was made in respect of a substantive application or hearing, the grounds on which that application was made; and
S. 33(2)(a)(ib) inserted by No. 47/2021 s. 15(8).
(ib) the evidence on which reliance will be sought on the substantive application or hearing to the extent possible without revealing any protected counter terrorism intelligence; and
S. 33(2)(a)(ii) amended by No. 47/2021 s. 15(9).
(ii) after the special counsel has had an opportunity to communicate with the subject of the substantive application or hearing, or a representative of the subject, under paragraph (b)—a copy of the protected counter-terrorism intelligence; and
S. 33(2)(b) amended by No. 47/2021 s. 15(10).
(b) at any time before the special counsel obtains any protected counter‑terrorism intelligence, the special counsel may communicate with the subject of the substantive application or hearing, or a representative of the subject, for the purposes of obtaining information from the subject or representative in relation to the substantive application or hearing; and
S. 33(2)(c) amended by No. 47/2021 s. 15(11).
(c) at any time after the special counsel obtains any protected counter‑terrorism intelligence, the special counsel must not communicate with the subject of the substantive application or hearing or a representative of the subject.
(3) A special counsel appointed under section 32—
(a) must not perform the role of special counsel in a manner that compromises the confidentiality of all or any part of the relevant information or the protected counter-terrorism intelligence (as the case requires); and
S. 33(3)(b) amended by No. 47/2021 s. 15(11).
(b) does not incur any liability to the subject of the substantive application or hearing in respect of anything done or omitted to be done by the special counsel in performing the role of special counsel.
S. 33(4) amended by No. 47/2021 s. 15(11).
(4) Legal professional privilege or client legal privilege applies to a communication between a special counsel appointed under section 32 and the subject of the substantive application or hearing or a representative of the subject in the same way as it would apply to a communication between a lawyer acting for the subject and the subject.
S. 33(5) amended by No. 47/2021 s. 15(12).
(5) The relevant court may direct that a special counsel appointed under section 32 may be present as an observer at any hearing of the substantive application or hearing other than the hearing of the relevant part.
Note
Special counsel is entitled to be present at the hearing of the relevant part—see section 31(3)(c).
(6) The applicant for a counter-terrorism intelligence protection order must fully disclose to a special counsel appointed under section 32(1) all matters of which the applicant is aware that are adverse to the protection application.
(7) The applicant for a counter-terrorism intelligence protection order must not knowingly or recklessly fail to comply with subsection (6).
Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units maximum) or both.
(8) In this section—
"relevant information", in relation to a protection application, means any information, or the original or a copy of any document or other thing, that is the subject of the application.
New s. 34 inserted by No. 32/2018 s. 71, substituted by No. 47/2021 s. 16.