Document ID: chunk:federal_register_of_legislation:C2022C00001:section:38i:p3
Version: federal_register_of_legislation:C2022C00001
Segment Type: section
Provision Reference: s 38I (pt 3/3)
Character Range: 88710–91117

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.

Subdivision B—Orders