38LCourt orders in civil proceedings

#### 38L Court orders in civil proceedings Civil non‑disclosure certificate hearings (1) After holding a hearing required under subsection 38G(1) in relation to the disclosure of information in a civil proceeding, the court must make an order under one of subsections (2), (4) and (5) of this section, unless the court has made an order under subsection 38J(2) or (3) in relation to the information. > Note: Subsections 38J(2) and (3) allow the court to make an order about the disclosure and consideration of information in control order proceedings under Division 104 of the Criminal Code or in Division 105A ESO proceedings. (2) If the information is in the form of a document, the court may order under this subsection that: (a) any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection; and (b) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and (c) any other specified person; must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may, subject to subsection (3), disclose (which disclosure may or may not be the same as was permitted in the Attorney‑General’s certificate) in the proceeding: (d) a copy of the document with the information deleted; or (e) a copy of the document with the information deleted and a summary of the information, as set out in the order, attached to the document; or (f) a copy of the document with the information deleted and a statement of facts, as set out in the order, that the information would, or would be likely to, prove attached to the document. (3) If the court makes an order under subsection (2), the copy of the document is admissible in evidence if, apart from the order, it is admissible. However, if: (a) a person who is the subject of the order seeks to adduce evidence of the contents of the document; and (b) the contents of the document are admissible in evidence in the proceeding; the person may adduce evidence of the contents of the document by tendering the copy, or the copy and the summary or statement, mentioned in that subsection. (4) The court may, regardless of the form of the information, order under this subsection that: (a) any person to whom the certificate mentioned in subsection 38F(2) or (3) was given in accordance with that subsection; and (b) any person to whom the contents of the certificate have been disclosed for the purposes of the hearing; and (c) any other specified person; must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise). (5) The court may, regardless of the form of the information, order under this subsection that any person may disclose the information in the proceeding. However, the information is only admissible in evidence in the proceeding if, apart from the order, it is admissible. Civil witness exclusion certificate hearings (6) After holding a hearing required under subsection 38H(6), the court must order that: (a) the relevant party or legal representative must not call the person as a witness in the civil proceeding; or (b) the relevant party or legal representative may call the person as a witness in the civil proceeding. However, this subsection does not apply if the court has made an order under subsection 38J(4) about the calling of the person as a witness. > Note: Subsection 38J(4) allows the court to make an order about the calling of witnesses in control order proceedings under Division 104 of the Criminal Code or in Division 105A ESO proceedings. Factors to be considered by court (7) The court must, in deciding what order to make under this section, 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. (8) In making its decision, the court must give greatest weight to the matter mentioned in paragraph (7)(a).