38FAttorney‑General’s civil non‑disclosure certificate

#### 38F Attorney‑General’s civil non‑disclosure certificate (1) This section applies if: (a) any of the following happens: (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 he or she or another person will disclose information in the proceeding; (ii) the Attorney‑General for any reason expects that any of the circumstances mentioned in paragraphs 38D(1)(a) to (c) will arise under which a party, the legal representative of a party or another person will disclose information in a civil proceeding; (iii) the Attorney‑General considers that a written answer given by a witness under section 38E in a civil proceeding will disclose information; and (b) paragraph 38H(1)(a) (about the mere presence of a witness constituting disclosure) does not apply; and (c) the Attorney‑General considers that the disclosure is likely to prejudice national security. Attorney‑General may give a certificate—case where information is in the form of a document (2) If the information would be disclosed in a document (the source document), the Attorney‑General may give each potential discloser (see subsection (9)) of the information in the proceeding: (a) any of the following: (i) a copy of the document with the information deleted; (ii) a copy of the document with the information deleted and a summary of the information attached to the document; (iii) a copy of the document with the information deleted and a statement of facts that the information would, or would be likely to, prove attached to the document; together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the copy, or the copy and the statement or summary; or (b) a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise). Attorney‑General may give a certificate—case where information is not in the form of a document (3) If the information would be disclosed other than in a document, the Attorney‑General may give each potential discloser of the information in the proceeding: (a) either: (i) a written summary of the information; or (ii) a written statement of facts that the information would, or would be likely to, prove; together with a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise), but may disclose the summary or statement; or (b) a certificate that describes the information and states that the potential discloser must not, except in permitted circumstances, disclose the information (whether in the proceeding or otherwise). Certificate may be given at same time as notice is given under section 6A (4) 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 (5) The Attorney‑General must give the court a copy of: (a) in any case—the certificate; and (b) if paragraph (2)(a) applies—the source document, the document mentioned in subparagraph (2)(a)(i), (ii) or (iii) and the summary or statement mentioned in subparagraph (2)(a)(ii) or (iii); and (c) if paragraph (3)(a) applies—the summary or statement mentioned in that paragraph. Duration of a certificate (6) The certificate ceases to have effect when: (a) the court makes an order under section 38B about the disclosure, in the proceeding, of information that 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. Attorney‑General may decide not to give a certificate (7) If the Attorney‑General decides not to do as mentioned in subsection (2) or (3), the Attorney‑General must, in writing, advise each potential discloser and the court of his or her decision. Certificate and written advice are not legislative instruments (8) A certificate given under subsection (2) or (3) and a written advice given under subsection (7) are not legislative instruments. Definition of potential discloser (9) Each of the following persons is a potential discloser of the information in the proceeding: (a) in all cases—the parties and the parties’ legal representatives; (b) if subparagraph (1)(a)(i) or (ii) applies and the disclosure is by a person other than a party or a party’s legal representative—the other person; (c) if subparagraph (1)(a)(iii) applies—the witness mentioned in that subparagraph.