Commonwealth Consolidated Acts

NATIONAL SECURITY INFORMATION (CRIMINAL AND CIVIL PROCEEDINGS) ACT 2004 - SECT 38I

             (1)  This section sets out the closed hearing requirements for a hearing under subsection 38G(1) or 38H(6).

Note:          The fact that those provisions 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.

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; and

                     (e)  if section 38K applies—the Attorney‑General and his or her legal representative; 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.

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 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)  If section 38K applies, 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 national security 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 or party’s legal representative

             (9)  The court must:

                     (a)  allow:

                              (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;

                            to have access to:

                            (iii)  the record as varied in accordance with this section, and if applicable, section 38J; 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

                     (b)  not make the varied record available to, nor allow the varied record to be accessed by, anyone except as mentioned in this subsection.