Document ID: chunk:federal_register_of_legislation:C2022C00001:section:38i:p1
Version: federal_register_of_legislation:C2022C00001
Segment Type: section
Provision Reference: s 38I (pt 1/3)
Character Range: 83848–86548

38I  Closed hearing requirements in civil proceedings
 (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)