Commonwealth Consolidated Acts

NATIONAL SECURITY INFORMATION (CRIMINAL AND CIVIL PROCEEDINGS) ACT 2004 - SECT 38H

  (1)   This section applies if:

  (a)   either:

  (i)   the Attorney - General is notified under section   38D that a party , or the legal representative of a party, to a civil proceeding knows or believes that a person whom the party or legal representative intends to call as a witness in the proceeding will disclose information by his or her mere presence; or

  (ii)   the Attorney - General for any reason expects that a person whom a party , or the legal representative of a party, to a civil proceeding intends to call as a witness in the proceeding will disclose information by his or her mere presence; and

  (b)   the Attorney - General considers that the disclosure is likely to prejudice national security.

Attorney - General may give a certificate

  (2)   The Attorney - General may give a certificate to the relevant party or legal representative that states that he or she must not call the person as a witness in the proceeding.

Certificate may be given at same time as notice is given under section   6A

  (3)   If subparagraph   ( 1)(a)(ii) applies in respect of the proceeding, the certificate may be given at the same time as notice is given under section   6A that this Act applies to the proceeding.

Copy of certificate must be given to the court

  (4)   The Attorney - General must give a copy of the certificate to the court.

Duration of a certificate

  (5)   The certificate ceases to have effect when:

  (a)   the court makes an order under section   38B about the disclosure, in the proceeding, of information by the mere presence of the person who is the subject of the certificate, unless the certificate is revoked by the Attorney - General before then; or

  (b)   any order by the court under section   38J or   38L on the hearing in relation to the certificate ceases to be subject to appeal, unless the certificate is revoked by the Attorney - General before then.

Court hearing

  (6)   The court must:

  (a)   if the certificate is given to the court before the substantive hearing in the proceeding begins--before the substantive hearing in the proceeding begins, hold a hearing to decide whether to make an order under section   38J or   38L in relation to the calling of the witness; or

  (b)   if the certificate is given to the court after the substantive hearing in the proceeding begins--adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section   38J or   38L in relation to the calling of the witness.

  (7)   The closed hearing requirements apply to the hearing to decide whether to make an order under section   38J or   38L.

  (8)   If, while the proceeding is adjourned or the hearing is being held:

  (a)   the court makes an order under section   38B about the disclosure, in the proceeding, of information by the mere presence of the person who is the subject of the certificate; or

  (b)   the Attorney - General revokes the certificate;

the court must end the adjournment or the hearing.

Attorney - General may decide not to give a certificate

  (9)   If the Attorney - General decides not to do as mentioned in subsection   ( 2), the Attorney - General must, in writing, advise:

  (a)   the relevant party or legal representative; and

  (b)   the court;

of his or her decision.

Certificate and written advice are not legislative instruments

  (10)   A certificate given under subsection   ( 2) and a written advice given under subsection   ( 9) are not legislative instruments.