Document ID: chunk:federal_register_of_legislation:C2022C00001:section:38i:p2
Version: federal_register_of_legislation:C2022C00001
Segment Type: section
Provision Reference: s 38I (pt 2/3)
Character Range: 86315–88952

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.
 (3A) Despite subsections (2) and (3), if:
 (a) the hearing is under subsection 38G(1) or 38H(6); and
 (b) the proceeding is:
 (i) under Division 104 of the Criminal Code (about control orders); or
 (ii) a Division 105A ESO proceeding; and
 (c) a person referred to in paragraph (2)(e) requests the court to make an order that one or more specified parties to the proceeding, and their legal representatives, are not entitled to be present during any part of the hearing in which a person referred to in paragraph (2)(e) gives information of the kind referred to in paragraph (3)(c) or (d);
then the court may make that order.
Note: An order made under subsection 38J(2), (3) or (4) in relation to the proceeding will contain a similar restriction in relation to a hearing in the proceeding: see paragraph 38J(2)(e), 38J(3)(d) or 38J(4)(c).

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 38J or 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) 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