Telecommunications (Interception Capability and Security) Act 2013

105 Appointment of special advocate


This section applies if—


it appears to a court that—


a person (the intended party) is or may be entitled to commence proceedings to which this subpart will or may apply but it is necessary for a special advocate to be appointed before the proceedings can be commenced; and


the intended party has notified the Crown that the party intends to commence those proceedings and that the party will apply for the appointment of a special advocate; or


proceedings have been commenced and information presented, or proposed to be presented, in those proceedings includes classified security information; or


proceedings have been commenced but the non-Crown party’s claim cannot be fully particularised without the non-Crown party being able to consider classified security information.


The court may, on the application of an intended party or non-Crown party, appoint a barrister or solicitor as a special advocate to represent the intended party’s or the non-Crown party’s interests on the terms that the court may direct if the court is satisfied that it is necessary to do so in order to ensure either or both of the following:


that the intended party can properly prepare and commence proceedings:


that a fair hearing will occur.


The court must, before appointing a person as a special advocate, be satisfied that the person—


holds an appropriate security clearance that allows the person to see information that is or may be classified security information; and


is suitably qualified and experienced to fulfil the role of a special advocate.


A special advocate appointed to represent an intended party may, after the proceedings are commenced, continue to act as the special advocate on behalf of that person (as a non-Crown party), subject to the terms that the court may direct.


The court may make directions as to the terms of the appointment, and on the matters referred to in sections 108 and 109(3), before or after the proceedings are commenced.


The appointment of a special advocate does not create an obligation requiring the intended party to commence proceedings.


The surveillance agency to which the proceedings or intended proceedings relate must meet the actual and reasonable costs of a special advocate on a basis—


agreed between the special advocate and the head of the surveillance agency; or


determined by the court (in default of agreement).