25Preventing witnesses from disclosing information in federal criminal proceedings by not allowing them to answer questions

#### 25 Preventing witnesses from disclosing information in federal criminal proceedings by not allowing them to answer questions Witness expected to disclose information in giving evidence (1) This section applies if: (a) a witness is asked a question in giving evidence in a federal criminal proceeding; and (b) the prosecutor, the defendant or the defendant’s legal representative knows or believes that information that will be disclosed in the witness’s answer is national security information. (2) The prosecutor, the defendant or the defendant’s legal representative must advise the court of that knowledge or belief. > Note: Failure to advise the court is an offence: see section 42. (2A) However, a person need not advise the court under subsection (2) about the disclosure of information if: (a) another person has already advised the court about the disclosure of the information under that subsection; or (b) a notice has been given to the Attorney‑General under subsection 24(1) about the disclosure of the information; or (c) the disclosure of the information: (i) is the subject of a certificate given to the person under section 26 and the certificate still has effect; or (ii) is the subject of an order that is in force under section 22 or 31; or (d) the Attorney‑General has given the person advice about the disclosure of the information under subsection 26(7). Witness to give written answer (3) If the court is advised under subsection (2) and the witness would, apart from this section, be required to answer the question, the court must order that the witness give the court a written answer to the question. (4) The court must show the written answer to the prosecutor and, if present, the Attorney‑General, the Attorney‑General’s legal representative and any other representative of the Attorney‑General. (5) If: (a) under subsection (4), the Attorney‑General’s representative (other than the Attorney‑General’s legal representative) is shown the written answer; and (b) he or she knows or believes that, if the written answer were to be given in evidence in the proceeding, the information that would be disclosed in the witness’s answer is national security information; then he or she must advise the prosecutor of that knowledge or belief. Prosecutor must give notice to Attorney‑General etc. (6) If the prosecutor knows, believes, or is advised under subsection (5), that, if the written answer were to be given in evidence in the proceeding, the information that would be disclosed in the witness’s answer is national security information, then the prosecutor must: (a) advise the court of that knowledge, belief or advice; and (b) as soon as practicable, give the Attorney‑General notice in writing of that knowledge, belief or advice. > Note: Failure to advise the court or to notify the Attorney‑General is an offence in certain circumstances: see section 42. (7) However, the prosecutor need not advise the court or give the Attorney‑General notice about the written answer under subsection (6) if the information disclosed by the written answer: (a) is the subject of a certificate or advice given to the prosecutor under section 26 and the certificate still has effect; or (b) is the subject of an order that is in force under section 22 or 31. Adjournment to allow sufficient time for Attorney‑General to act on the notice (8) If the court is advised under subsection (6), it must adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed. The court must continue the adjournment until the Attorney‑General: (a) gives a copy of a certificate to the court under subsection 26(4); or (b) gives advice to the court under subsection 26(7) (which applies if a decision is made not to give a certificate).