Document ID: chunk:federal_register_of_legislation:C2005A00089:clause:1_38d:p1
Version: federal_register_of_legislation:C2005A00089
Segment Type: clause
Provision Reference: sch 1 cl 38D (pt 1/2)
Character Range: 15334–18022

38D  Parties must notify expected disclosure in civil proceedings of information relating to or affecting national security

 (1) If a party to a civil proceeding knows or believes that:
 (a) he or she will disclose, in the proceeding, information that relates to national security; or
 (b) he or she will disclose information in the proceeding and the disclosure may affect national security; or
 (c) a person whom the party intends to call as a witness in the proceeding will disclose information in giving evidence or by his or her mere presence and:
 (i) the information relates to national security; or
 (ii) the disclosure may affect national security;
the party must, as soon as practicable, give the Attorney‑General notice in writing of that knowledge or belief.

Note: Section 38E deals with the situation where a party knows or believes that a disclosure by a witness in answering a question may relate to or affect national security.

 (2) Despite subsection (1), a party need not give the Attorney‑General notice if:
 (a) the information to be disclosed:
 (i) is the subject of a certificate given to the party under section 38F and the certificate still has effect; or
 (ii) is the subject of an order in force under section 38B 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 under section 38H and the certificate still has effect; or
 (ii) is the subject of an order in force under section 38B or 38L.

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 party who gives notice under subsection (1) must also advise, in writing:
 (a) the court; and
 (b) the other parties to the proceeding; and
 (c) any person to whom paragraph (1)(c) applies;
that notice has been given to the Attorney‑General. The advice must include a description of the information.

Note: Failure to give notice or advice as required by this section is an offence: see section 46C.

Adjournment to allow sufficient time for Attorney‑General to act on the notice

 (5) On receiving the advice, the court must order that the proceeding be adjourned until the Attorney‑General gives a copy of a certificate to the court under subsection 38F(5) or gives advice to the court under subsection 38F(7)