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.