Document ID: chunk:federal_register_of_legislation:C2022C00001:section:38e
Version: federal_register_of_legislation:C2022C00001
Segment Type: section
Provision Reference: s 38E
Character Range: 71056–73572

38E  Preventing witnesses from disclosing information in civil proceedings by not allowing them to answer questions

Witness expected to disclose information in giving evidence
 (1) This section applies if:
 (a) a witness is asked a question in giving evidence in a civil proceeding; and
 (b) a party, or the legal representative of a party, to the proceeding knows or believes that information that will be disclosed in the witness's answer is national security information.
 (2) The party or legal representative must advise the court of that knowledge or belief.
Note: Failure to advise the court is an offence: see section 46C.
 (2A) However, a person need not advise the court under subsection (2) about the disclosure of information if:
 (a) another person has already advised the court about the disclosure of the information under that subsection; or
 (b) a notice has been given to the Attorney‑General under subsection 38D(1) about the disclosure of the information; or
 (c) the disclosure of the information:
 (i) is the subject of a certificate given to the person under section 38F and the certificate still has effect; or
 (ii) is the subject of an order that is in force under section 38B, 38J or 38L; or
 (d) the Attorney‑General has given the person advice about the disclosure of the information under subsection 38F(7).

Witness must give written answer to question
 (3) If the court is advised under subsection (2), the court must order that the witness give the court a written answer to the question.

Court must adjourn proceeding
 (4) On receiving the written answer, the court must adjourn so much of the proceeding as is necessary to ensure that the information is not disclosed. However, the court need not do so if the information disclosed by the written answer:
 (a) is the subject of a certificate given to the court under section 38F and the certificate still has effect; or
 (b) is the subject of an order in force under section 38B, 38J or 38L.
Note: Subsection 38F(6) specifies when a certificate ceases to have effect.
 (5) If the court adjourns a part of the proceeding under subsection (4), the court must give the written answer to the Attorney‑General.
 (6) The court must continue the adjournment 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) (which applies if a decision is made not to give a certificate).

Subdivision C—Attorney‑General's civil proceedings certificates