Commonwealth Consolidated Acts

NATIONAL SECURITY INFORMATION (CRIMINAL AND CIVIL PROCEEDINGS) ACT 2004 - SECT 28

             (1)  This section applies if:

                     (a)  either:

                              (i)  the Attorney‑General is notified under section 24 that the prosecutor or defendant knows or believes that a person whom the prosecutor or defendant intends to call as a witness in a federal criminal proceeding will disclose information by his or her mere presence; or

                             (ii)  the Attorney‑General for any reason expects that a person whom the prosecutor or defendant intends to call as a witness in a federal criminal proceeding will disclose information by his or her mere presence; and

                     (b)  the Attorney‑General considers that the disclosure is likely to prejudice national security.

Attorney‑General may give a certificate

             (2)  The Attorney‑General may give a certificate to the prosecutor or defendant, as the case may be, that states that the prosecutor or defendant must not call the person as a witness in the federal criminal proceeding.

             (3)  The Attorney‑General must give a copy of the certificate to the court.

Duration of a certificate

             (4)  The certificate ceases to have effect when any order by the court under section 31 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.

Court hearing

             (5)  If the proceeding is covered by paragraph 14(a) (about a proceeding involving a trial), the court must:

                     (a)  if the certificate is given to the court before the trial begins—before the trial begins, hold a hearing to decide whether to make an order under section 31 in relation to the calling of the witness; or

                     (b)  if the certificate is given to the court after the trial begins—adjourn the proceeding for the purpose of holding a hearing to decide whether to make an order under section 31 in relation to the calling of the witness.

             (6)  If the proceeding is covered by paragraph 14(b) (about extradition proceedings), the certificate is conclusive evidence during the proceeding that the person, if called as a witness in the proceeding, will disclose information by his or her mere presence and that the disclosure is likely to prejudice national security.

             (7)  The closed hearing requirements apply to the hearing.

             (8)  If the Attorney‑General revokes the certificate at any time while the proceeding is adjourned or the hearing is being held, the court must end the adjournment or the hearing.

Certificate is not a legislative instrument

             (9)  A certificate given to the prosecutor or defendant under this section is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

Attorney‑General may decide not to give a certificate

           (10)  If the Attorney‑General decides not to do as mentioned in subsection (2), the Attorney‑General must, in writing, advise the prosecutor or defendant, as the case requires, and the court of his or her decision.