The words 'having regard to the Attorney-General's certificate' in s 31(7)(a) of the NSI Act do not give the certificate determinative or presumptive weight; the court must independently assess the risk of prejudice to national security. The requirement in s 31(8) to give 'greatest weight' to national security risk does not mean that consideration will necessarily predominate — the discretion remains intact and in a proper case the court will order disclosure other than that preferred by the Attorney-General. The NSI Act does not mandate presumptive weight for evidence of government officials on national security matters, though the currency of their experience is relevant to probative value. Nondisclosure orders in jury trials can be managed through careful scheduling and appropriate directions without creating a substantial adverse effect on the defendant's right to a fair hearing.
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