Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section sets out the closed hearing requirements that apply:
(a) for a hearing under subsection 38G(1) or 38H(6) relating to the disclosure of information in a civil proceeding; or
(b) if the court makes an order under subsection 38J(2), (3) or (4) that the closed hearing requirements in this section are to apply when information that is the subject of the order is disclosed to the court at a hearing:
(i) in a proceeding under Division 104 of the Criminal Code (about control orders); or
(ii) in a Division 105A ESO proceeding;
when the information is disclosed to the court at that hearing.
Note 1 : The fact that subsections 38G(1) and 38H(6), and an order under subsection 38J(2), (3) or (4), provide that the closed hearing requirements apply to certain hearings does not prevent the court from exercising any powers that it otherwise has eg to exclude persons (such as members of the public) from other hearings or to prevent publication of evidence.
Note 2: The court may not make an order under subsection 38J(2), (3) or (4) if the proceeding under Division 105A of the Criminal Code relates to an application for a CDO (see subsections 38J(1) and (1A) of this Act, and the definition of Division 105A ESO proceeding in section 7 of this Act). If the court decides not to make the CDO and hears evidence in a closed hearing in relation to an ESO, the court could reconsider whether to make the CDO. However, the court could not take that evidence into account in determining whether to make the CDO.
Who may be present
(2) Subject to this section, no - one, including the jury (if any), must be present at the hearing except:
(a) the magistrate, judge or judges comprising the court; and
(b) court officials; and
(c) the parties to the proceeding; and
(d) the parties' legal representatives or special advocates ; and
(e) the Attorney - General, the Attorney - General's legal representative and any other representative of the Attorney - General; and
(f) any witnesses allowed by the court.
(3) If the court considers that:
(a) the information concerned would be disclosed to any of the following persons:
(i) a party to the proceeding;
(ii) a party's legal representative;
(iii) any court official;
who have not been given a security clearance at the level considered appropriate by the Secretary in relation to the information concerned; and
(b) the disclosure would be likely to prejudice national security;
the court may order that the party, the legal representative or the court official is not entitled to be present during any part of the hearing in which any person referred to in paragraph ( 2)(e):
(c) gives details of the information; or
(d) gives information in arguing why the information should not be disclosed, or why the witness should not be called to give evidence, in the proceeding.
(3A) Despite subsections ( 2) and (3), if:
(a) the hearing is under subsection 38G(1) or 38H(6); and
(i) under Division 104 of the Criminal Code (about control orders); or
(ii) a Division 105A ESO proceeding; and
(c) a person referred to in paragraph ( 2)(e) requests the court to make an order that one or more specified parties to the proceeding, and their legal representatives, are not entitled to be present during any part of the hearing in which a person referred to in paragraph ( 2)(e) gives information of the kind referred to in paragraph ( 3)(c) or (d);
then the court may make that order.
Note: An order made under subsection 38J(2), (3) or (4) in relation to the proceeding will contain a similar restriction in relation to a hearing in the proceeding: see paragraph 38J(2)(e), 38J(3)(d) or 38J(4)(c).
Submissions about non - disclosure arguments
(4) If, at the hearing, any person referred to in paragraph ( 2)(e) argues that:
(a) any information should not be disclosed; or
(b) the witness should not be called to give evidence in the proceeding;
the other parties to the proceeding and any legal representatives of the other parties must be given the opportunity to make submissions to the court about the argument that the information should not be disclosed or the witness should not be called.
Court to make etc. record of hearing
(5) The court must:
(a) whether before or after it makes an order under section 38J or 38L, make a record of the hearing; and
(b) keep the record; and
(c) make the record available to a court that hears an appeal against, or reviews, its decision on the hearing; and
(d) not make the record available to, nor allow the record to be accessed by, anyone except as mentioned in this section.
Copy of record to be given to the Attorney - General etc.
(6) The court must give a copy of the record to the Attorney - General and his or her legal representative.
Request to vary record
(7) If the Attorney - General considers that:
(a) allowing access to the record by:
(i) a party who has been given a security clearance at the level considered appropriate by the Secretary but who has not engaged a legal representative; or
(ii) any party's legal representative who has been given a security clearance at the level considered appropriate by the Secretary;
will disclose information; and
(b) the disclosure is likely to prejudice national security;
the Attorney - General or his or her legal representative may request that the court vary the record so that the information will not be disclosed.
Decision by the court
(8) The court must make a decision on the request.
Access to the record by a party, legal representative or special advocate
(9) The court must:
(a) allow the following persons (other than a person who, because of an order under subsection ( 3A) or 38J(2), (3) or (4), is not entitled to be present during any part of the hearing) :
(i) a party who has been given a security clearance at the level considered appropriate by the Secretary but who has not engaged a legal representative;
(ii) any party's legal representative who has been given a security clearance at the level considered appropriate by the Secretary;
to have access to:
(iii) the record as varied in accordance with this section; or
(iv) if subparagraph ( iii) does not apply--the record;
and to prepare documents or records in relation to the varied record or the record, in a way and at a place prescribed by the regulations for the purposes of this paragraph; and
(aa) allow any party's special advocate:
(i) to have access to the record; and
(ii) to prepare documents or records in relation to the record in a way and at a place prescribed by the regulations for the purposes of this paragraph; and
(b) not make the varied record available to, nor allow the varied record to be accessed by, anyone except as mentioned in this subsection.
(10) If the court makes a decision under subsection ( 8), the Attorney - General or his or her legal representative may request that the court delay allowing access to the varied record or the record as mentioned in paragraph ( 9)(a) to allow time for the Attorney - General to:
(a) decide whether to appeal against the court's decision; and
(b) if the Attorney - General decides to do so--make the appeal.
The court must grant the request.