Document ID: chunk:federal_register_of_legislation:C2022C00001:section:38d:p1
Version: federal_register_of_legislation:C2022C00001
Segment Type: section
Provision Reference: s 38D (pt 1/2)
Character Range: 67387–70083

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;