(1)

This section sets out the closed hearing requirements for a hearing under subsection 25(3), 27(3) or 28(5).

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 prosecutor; and
(d) the defendant; and
(e) any legal representative of the defendant; and
(f) if section 30 applies—the Attorney-General and any legal representative of the Attorney-General; and
(g) any witnesses allowed by the court.

(3)

If the court considers that the information concerned would be disclosed to:

(a) the defendant; or
(b) any legal representative of the defendant who has not been given a security clearance at the level considered appropriate by the Secretary in relation to the information concerned; or
(c) any court official who has not been given a security clearance at the level considered appropriate by the Secretary in relation to the information concerned;

and that the disclosure would be likely to prejudice national security, the court may order that the defendant, the legal representative or the court official is not entitled to be present during any part of the hearing in which the prosecutor or any person mentioned in paragraph (2)(f):

(d) gives details of the information; or
(e) 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.

Defendant's submissions about prosecutor's non-disclosure arguments

(4)

If, at the hearing, the prosecutor or any person mentioned in paragraph (2)(f) argues that any information should not be disclosed, or that the witness should not be called to give evidence, in the proceeding, the defendant and any legal representative of the defendant 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 31, make a record of the hearing; and
(b) keep the record; and
(c) make the record available to:
(i) a court that hears an appeal against, or reviews, its decision on the hearing; and
(ii) the prosecutor; and
(iii) if section 30 applies—the Attorney-General and any legal representative of the Attorney-General; and
(d) allow any legal representative of the defendant, who has been given a security clearance at the level considered appropriate by the Secretary, to have access to the record, and 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
(e) not make the record available to, nor allow the record to be accessed by, anyone except as mentioned in this subsection.

Copy of proposed record to be given to prosecutor etc.

(6)

Before the court makes the record under subsection (5), the court must give a copy of the proposed record to the prosecutor and, if section 30 applies, the Attorney-General (each of whom is a record recipient ).

Statement recipient may request variation of proposed record

(7)

If a record recipient considers that making the proposed record available as mentioned in subparagraph (5)(c)(i) and allowing access to it as mentioned in paragraph (5)(d) will disclose information and the disclosure is likely to prejudice national security, the record recipient may request that the court vary the proposed record so that the national security information will not be disclosed.

Court's decision

(8)

The court must make a decision on the request.