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262: Restriction on appeal and review
or “Limits on challenging decisions involving classified information”
You could also call this:

“Special advocates represent you in cases involving classified information”

A special advocate is someone who speaks for you if your case involves classified information. This can happen when a decision is made about you using secret information, or when you’re in a legal proceeding that involves secret information.

The special advocate can do several things to help you. They can start legal proceedings for you. In closed hearings, they can talk to the court and ask questions to witnesses. They can also write to the court or tribunal about your case.

The special advocate has important rules to follow. They must always keep the classified information secret. They also have to act properly as an officer of the High Court.

The Minister or a refugee and protection officer must let the special advocate see the classified information. This includes information used to make a decision you’re appealing, information given to the tribunal or court for your case, or information for warrant of commitment proceedings. Before showing this information, they need to talk to the head of the relevant government agency.

The special advocate must keep all classified information secret. They can only share it when the law specifically allows them to.

The Department will pay for the reasonable costs of the special advocate. The special advocate and the designated agency will agree on how much this will be.

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Next up: 264: Recognition of special advocates

or “How the government recognises lawyers who can handle secret information in legal cases”
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Part 7 Appeals, reviews, and other proceedings
Special advocates

263Role of special advocates

  1. The role of a special advocate is to represent a person who is the subject of—

  2. a decision made involving classified information; or
    1. proceedings involving classified information.

      1. In particular, a special advocate may—

      2. lodge or commence proceedings on behalf of the person:
        1. make oral submissions and cross-examine witnesses at any closed hearing:
          1. make written submissions to the Tribunal or the court, as the case may be.

            1. At all times a special advocate must—

            2. ensure that the confidentiality of the classified information remains protected; and
              1. act in accordance with his or her duties as an officer of the High Court.

                1. The Minister or a refugee and protection officer (as appropriate) must provide a special advocate with access to the classified information—

                2. relied on in making the decision being appealed against; or
                  1. provided to the Tribunal for the purpose of determining the matter; or
                    1. provided to the Tribunal or the court in the appeal or in the review proceedings; or
                      1. provided to the court in warrant of commitment proceedings.

                        1. Before providing access to the classified information, the Minister or the refugee and protection officer must consult the chief executive of the relevant agency.

                        2. A special advocate must keep confidential and must not disclose classified information, except as expressly provided under this Act.

                        3. The chief executive of the Department must meet the actual and reasonable costs of a special advocate on a basis agreed between the special advocate and the designated agency.