Document ID: chunk:federal_register_of_legislation:C2022C00001:section:38j:p3
Version: federal_register_of_legislation:C2022C00001
Segment Type: section
Provision Reference: s 38J (pt 3/3)
Character Range: 96127–98278

if the information is disclosed to the court in the proceeding and, apart from the order, the information is admissible in evidence in the proceeding—the court may consider the information in the proceeding, even if the information has not been disclosed to the relevant person or the relevant person's legal representative.

Witness exclusion certificate hearings
 (4) If the hearing was required by subsection 38H(6) in relation to the calling of a witness in the proceeding, the court may order under this subsection that:
 (a) the relevant person and the relevant person's legal representative must not call the witness at a hearing in the proceeding; and
 (b) the closed hearing requirements in section 38I are to apply if the witness is called at a hearing in the proceeding; and
 (c) the relevant person and the relevant person's legal representative are not entitled to be present if the witness is called at a hearing in the proceeding.

Factors to be considered by court
 (5) The court must, in deciding whether to make an order under subsection (2), (3) or (4), consider the following matters:
 (a) whether, having regard to the Attorney‑General's certificate, there would be a risk of prejudice to national security if:
 (i) where the certificate was given under subsection 38F(2) or (3)—the information were disclosed in contravention of the certificate; or
 (ii) where the certificate was given under subsection 38H(2)—the witness were called;
 (b) whether any such order would have a substantial adverse effect on the substantive hearing in the proceeding;
 (c) any other matter the court considers relevant.

Proceedings relating to making and confirming control order
 (6) If the court makes an order under subsection (2), (3) or (4) in relation to a proceeding for the making of a control order in relation to the relevant person, then the order under that subsection also applies in relation to a proceeding for the confirmation of the control order in relation to the person.

If order is not made
 (7) If the court decides not to make an order under subsection (2), (3) or (4), then the court must make an order under section 38L.