38DNotification of expected disclosure of national security information

#### 38D Notification of expected disclosure of national security information (1) If a party, or the legal representative of a party, to a civil proceeding knows or believes that: (a) he or she will disclose national security information in the proceeding; or (b) a person whom he or she intends to call as a witness in the proceeding will disclose national security information in giving evidence or by the person’s mere presence; or (c) on his or her application, the court has issued a subpoena to, or made another order in relation to, another person who, because of that subpoena or order, is required (other than as a witness) to disclose national security information in the proceeding; then he or she must, as soon as practicable, give the Attorney‑General notice in writing of that knowledge or belief. > Note 1: Failure to give notice as required by this section is an offence in certain circumstances: see section 46C. > Note 2: Section 38E deals with the situation where a party, or a party’s legal representative, knows or believes that information that will be disclosed in a witness’s answer is national security information. (2) However, a party or a party’s legal representative need not give the Attorney‑General notice about the disclosure of the information under subsection (1) if: (aa) another person has already given notice about the disclosure of the information under that subsection; or (a) the information to be disclosed: (i) is the subject of a certificate given to the party or the legal representative under section 38F and the certificate still has effect; or (ii) is the subject of an order in force under section 38B, 38J or 38L; or (b) the disclosure of information by the witness to be called: (i) is the subject of a certificate given to the party or the legal representative under section 38H and the certificate still has effect; or (ii) is the subject of an order in force under section 38B, 38J or 38L; or (c) the Attorney‑General has given the party or the legal representative advice about the disclosure of the information under subsection 38F(7) or 38H(9). > Note: Subsections 38F(6) and 38H(5) specify when a certificate ceases to have effect. Requirements for notice (3) The notice must: (a) be in the prescribed form; and (b) if paragraph (c) does not apply—include a description of the information; and (c) if the information is contained in a document—be accompanied by a copy of the document or by an extract from the document, that contains the information. Informing the court etc. of an expected disclosure (4) A person who gives notice under subsection (1) must also advise, in writing: (a) the court; and (b) the other parties; and (c) the other parties’ legal representatives; and (d) any other person mentioned in paragraph (1)(b) or (c); that notice has been given to the Attorney‑General. The advice must include a description of the information. > Note: Failure to give advice as required by this section is an offence in certain circumstances: see section 46C. Adjournment to allow sufficient time for Attorney‑General to act on the notice (5) On receiving the advice, the court 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 38F(5) or 38H(4); or (b) gives advice to the court under subsection 38F(7) or 38H(9) (which applies if a decision is made not to give a certificate).