Document ID: chunk:federal_register_of_legislation:C2007A00116:clause:1_126b
Version: federal_register_of_legislation:C2007A00116
Segment Type: clause
Provision Reference: sch 1 cl 126B
Character Range: 3648–6181

126B  Exclusion of evidence of protected confidences

 (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
 (a) a protected confidence; or
 (b) the contents of a document recording a protected confidence; or
 (c) protected identity information.

 (2) The court may give such a direction:
 (a) on its own initiative; or
 (b) on the application of the protected confider or confidant concerned (whether or not either is a party).

 (3) The court must give such a direction if it is satisfied that:
 (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced; and
 (b) the nature and extent of the harm outweighs the desirability of the evidence being given.

 (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
 (a) the probative value of the evidence in the proceeding;
 (b) the importance of the evidence in the proceeding;
 (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding;
 (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates;
 (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider;
 (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed;
 (g) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor;
 (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person.
The court must also take into account, and give the greatest weight to, any risk of prejudice to national security (within the meaning of section 8 of the National Security Information (Criminal and Civil Proceedings) Act 2004).

 (5) The court must state its reasons for giving or refusing to give a direction under this section.