Privilege in respect of self-incrimination in other proceedings

15.89 The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person.[123] Although broadly referred to as the privilege against self-incrimination, the concept encompasses three distinct privileges: a privilege against self-incrimination in criminal matters; a privilege against self-exposure to a civil or administrative penalty (including any monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil proceedings for damages); and a privilege against self-exposure to the forfeiture of an existing right (which is less commonly invoked).

15.90 Section 128(1) of the uniform Evidence Acts applies where a witness objects to giving particular evidence that ‘may tend to prove’ that the witness has committed an offence under Australian or foreign law, or is liable to a civil penalty.[124] Under s 128(2):

Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:

(a) that he or she need not give the evidence; and

(b) that, if he or she gives the evidence, the court will give a certificate under this section; and

(c) of the effect of such a certificate.

15.91 Section 128(5) states:

If the court is satisfied that:

(a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and

(b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(c) the interests of justice require that the witness give the evidence;

the court may require the witness to give the evidence.

15.92 In this regard, the Acts differ from the common law, which grants an absolute right to claim the privilege.[125] If the witness chooses to give evidence or is compelled to give evidence under s 128(5), the court must give the witness a certificate which grants that person use and derivative use immunity in relation to the particular evidence (except in criminal proceedings in respect of the falsity of the evidence).[126] A form of certificate granted under s 128 is contained in Form 1 of the Evidence Regulations (Cth).[127] Regulation 7 of both the Commonwealth and the New South Wales Regulations states that a certificate can, but need not be, in accordance with Form 1.[128]

15.93 Where the court has denied a claim for privilege and where, after the giving of evidence, the court finds that there were indeed reasonable grounds for the claim, the witness must also be given a certificate.[129] The section does not apply to defendants in criminal proceedings who give evidence that they did, or omitted to do, an act which is a fact in issue, or that they had a state of mind the existence of which is a fact in issue. Corporations cannot claim the privilege under s 128.[130]

15.94 The process of certification in s 128 was based on a model adopted in the (then) Australian Capital Territory Court of Petty Sessions. ALRC 26 noted that the procedure was invoked around 25 times a year and elicited useful additional information from witnesses.[131] Section 128 differs from the ALRC’s original proposal, which provided only for an optional certificate, and did not allow a court to compel a witness to give the evidence.[132]

15.95 In DP 69, it was noted that concerns with s 128 centred on the procedure of certification, rather than the aims or scope of the section. Judges, in particular, told the Inquiry that the process under s 128 is cumbersome and hard to explain to witnesses. They also argued that the necessity to invoke the process in relation to each question is clumsy. It should be the broader ‘subject matter’ of the evidence (rather than ‘particular evidence’) that is protected, for example, ‘the use of cocaine by the witness when living in Kings Cross in 1997–98’. They further argued that it should be sufficient for a judge to confirm the grant of the certificate in the record of proceedings, rather than having to create an actual document; and that the Acts should require a prosecutor to keep a permanent record of all certificates granted under s 128 in any proceedings.[133]

15.96 The Commissions agreed in DP 69 that s 128 should be amended to clarify its procedures. Submissions were sought on how these changes might best be achieved.

Submissions and consultations

15.97 The CDPP is supportive of amendments that would allow more flexibility in the use of certificates, as is ASIC.[134] The Law Society of New South Wales agrees that there would be benefits in streamlining the process under s 128.[135]

15.98 The Law Institute of Victoria (LIV) is critical of the ‘reasonable grounds’ test in s 128, and argues that the operation of an absolute right to claim the privilege should prevail. The LIV is supportive of the suggestion that a witness should be able to make a claim in relation to particular topics to avoid the need repeatedly to make claims in response to particular topics.[136]

15.99 The Family Court of Australia submits that the current s 128(2) procedure of inducing rather than compelling self-incriminatory evidence is problematic. In the view of the Family Court, s 128(2) enables an unscrupulous witness to obtain an unintended forensic advantage in subsequent criminal proceedings by volunteering information to the court that it does not really need or want and which would not have been compelled under the exception in s 128(5). An induced or volunteered answer under s 128(2) will arm the witness with an indemnity certificate giving him or her both use and derivative use immunity in respect of the evidence (except in the criminal proceeding in respect of the false giving of evidence). The protection extends to the use of the evidence as a prior inconsistent statement. This will have the practical effect of putting any later prosecuting authority in the position of having to prove affirmatively that the evidence relied on in the proceeding is derived from a legitimate source wholly independent of the induced testimony.[137]

15.100 The Family Court further submits that the effect of paragraph (b) of s 128(5) is that an answer cannot be compelled, even in the interests of justice, where the court is satisfied that the evidence could prove that the witness has committed a criminal or civil offence under a foreign law. The Family Court argues that the paragraph is nearly always overlooked and probably has a much wider operation than the legislature intended. Almost every criminal offence and most civil breaches have international counterparts. Giving s 128(5)(b) its full scope would therefore render the certificate procedure almost useless in most cases.[138]

15.101 Finally, the Family Court questions the application of the process under s 128(1) to affidavits. Under the Family Law Rules 2004, evidence in chief at a hearing or trial is required to be given by affidavit unless the witness refuses to swear one. No specific provision is made in the Rules for a witness to take objection on the grounds that the witness may incriminate himself or herself.[139]

The Commissions’ view

15.102 The Family Court’s concerns in regard to parties volunteering information in family law proceedings for their own advantage are noted. As s 128 is presently drafted, once a party objects to giving evidence, the court is required to make a determination if there are reasonable grounds to the objection. Under s 128(2), if the court finds that there are reasonable grounds for the objection, the court is not to compel the witness to give evidence, but must inform him or her that if he or she does give the evidence, a certificate will be given. This process allows the witness to consider giving the evidence in exchange for a certificate, before the test under s 128(5), as to whether the evidence can be compelled, is applied.

15.103 The Family Court’s concern has not been raised elsewhere. In ALRC 26, the ALRC considered that the appropriate balance between the rights of the individual and the state could be struck by a procedure whereby a witness could be encouraged to testify but the state would be prevented from using that evidence against him or her in later proceedings.[140] This view was endorsed by the New Zealand Law Commission in its consideration of the privilege against self-incrimination in 1996.[141] Whilst the ALRC’s proposal was later modified to allow that a witness could also be compelled to give the evidence, the option of voluntarily giving the evidence in exchange for a certificate remained. It is not considered that a sufficient problem has been identified at this stage to warrant fundamental reconsideration of the provision.

15.104 In relation to the criticisms of s 128(5)(b) by the Family Court, an exception for an offence or civil penalty against or arising under a law of a foreign country was not part of the ALRC’s original proposal. However, because the legislated section was drafted in such a way that a person could be compelled to give evidence (which was not part of the ALRC proposal) it was considered that, as an Australian court cannot guarantee that any certificate of immunity issued by it will be respected in a foreign jurisdiction, the court should not use its discretion to overrule a legitimate claim of privilege in this regard. The width of the provision is not as great as asserted in the submission of the Family Court. It is not the existence of equivalent offences in foreign jurisdictions which removes the court’s ability to compel answers in the interests of justice—it is the risk of incrimination in relation to such offences. That risk will usually only exist where the evidence relates to actions within a foreign country.

15.105 It has been noted by the New Zealand Law Commission that a court faces real difficulties in determining whether claims based on a liability arising overseas are legitimate.[142] The Evidence Bill, which at the time of writing this Report is presently under consideration by the New Zealand Parliament, confines the privilege to offences under New Zealand law. However, in the case of an offence in another jurisdiction, the Bill grants the judge a discretion to direct that the person cannot be required to provide the information if the judge thinks that it would be unreasonable to require the person to incriminate himself or herself by providing the information.[143] Although the concerns of the Family Court are noted, the Commissions support the policy behind the current s 128(5)(b). The underlying policy of s 128 is that the privilege against self-incrimination should only be overridden when an immunity is available to the witness in relation to other proceedings.

15.106 The Commissions believe that the best way to clarify the procedure under s 128 is by simplifying the order in which the process of certification is outlined in the section. This would involve moving the current s 128(5), where the court may require the witness to give evidence, closer to s 128(2), where the witness makes the objection.[144] In addition, rather than the current practice, where a certificate is required to be issued for each question, the Commissions support the view that ‘particular evidence’ under the section should be defined to include ‘evidence both in response to questions and evidence on particular topics’.

15.107 Rather than including the requirements for the court to inform the witness of his or her rights and the effect of the section, it will be simpler for the section to provide:

  • that the witness may object to giving the evidence on the grounds that it may incriminate him or her (or make him or her liable to a civil penalty);
  • that the court shall determine whether or not that claim is based on reasonable grounds;
  • if the claim is reasonable, that the court can then tell the witness that he or she may choose to give the evidence or the court will consider whether the interests of justice require that the evidence be given;
  • if the evidence is given, either voluntarily or under compulsion, that a certificate shall be granted preventing the use of that evidence against the person in another proceeding.

15.108 The general provisions regarding the duty of the court to inform witnesses and parties of their rights in relation to privileges under Part 3.10 will remain applicable.[145] A recommended provision based on these amendments is contained in Appendix 1.

Recommendation 15–7 Section 128 of the uniform Evidence Acts should apply where a witness objects to giving evidence either to a particular question, or a class of questions, on the grounds that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law or a law of a foreign country or is liable to a civil penalty under such law. The section should provide that:

(a) the court is to determine whether or not that claim is based on reasonable grounds;

(b) if the court is so satisfied, the court must inform the witness that the witness may choose to give the evidence or the court will consider whether the interests of justice require that the evidence be given;

(c) the court may require that the witness give the evidence if the interests of justice so require, but must not do so if the evidence would tend to prove that the witness has committed an offence against or arising under a law of a foreign country or is liable to a civil penalty under a law of a foreign country; and

(d) if the evidence is given, either voluntarily or under compulsion, a certificate is to be granted preventing the use of that evidence against the person.

Application of s 128 to pre-trial proceedings

15.109 Section 128 provides a mechanism for allowing a witness to object to answering questions on the grounds that to do so may expose the witness to the risk of criminal and other proceedings. Its policy aim is premised on the desirability of encouraging witnesses to testify. The common law privilege against self-incrimination can be invoked in pre-trial and non-curial contexts. The policy considerations supporting a certification procedure in relation to evidence do not support the extension of the certification procedure to pre-trial matters. In this case, the common law rules regarding the privilege against self-incrimination will continue to apply.[146]

Definition of ‘use in any proceeding’ and ‘court’

15.110 Section 128(7) of the Evidence Act 1995 (Cth) states:

In any proceeding in an Australian court:

(a) evidence given by a person in respect of which a certificate under this section has been given; and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

15.111 The term ‘proceeding’ is not defined, although ‘Australian court’ is given a wide definition.[147] Odgers argues that both concepts should be given a liberal interpretation based on the underlying protective purpose of granting the privilege.[148] Section 128(7) is mirrored in the other uniform Evidence Acts, although, for example, under the Evidence Act 1995 (NSW), the section applies to ‘any proceeding in a NSW court’.

Application to a retrial

15.112 One issue raised by the term ‘any proceeding’ is the status of a retrial. In R v Cornwell,[149] the accused was granted a certificate under s 128 in his first trial for evidence given by him that might incriminate him in relation to other possible charges. The jury at the trial could not decide on a verdict and a re-trial commenced before Blackmore DCJ in the District Court of New South Wales. Blackmore DCJ determined that the trial before him was a different proceeding for the purposes of s 128(7). Therefore, the certificate issued by Howie J in the Supreme Court of New South Wales would apply to the proceeding in the District Court, preventing the tendering of the evidence that was the subject of the certificate. The issue was whether a retrial could be considered a ‘proceeding’ for the purpose of a s 128 certificate or whether it is part of the original proceedings.[150]

15.113 Following Blackmore DCJ’s ruling, the parties appeared before Howie J regarding the issuing of the certificate from the first trial. The Crown contended that the certificate should not be issued because of the defence delay in seeking it and the use to be made of it in the District Court proceedings.

15.114 Howie J considered whether there was any basis on which the certificate could be limited or amended to prevent its use in keeping the evidence out of the retrial. He found that there was no ground to refuse the certificate on the basis of events that ‘occurred after the accused was told he must answer the questions asked but that a certificate would be issued in respect of those answers’.[151] The process set out by s 128 is mandatory, not discretionary, once the requirements of the section are met.

15.115 Howie J expressed concern about the situation in Cornwell, stating that it was difficult to see ‘any justifiable policy which would permit an accused to give evidence in a trial on the basis that some or all of it could not be used against him in any subsequent proceedings for the same offence’.[152] On this basis, he suggested that either it is incorrect to include a retrial in the definition of a ‘proceeding’ for the purpose of s 128(7) or the section needs to be amended.[153]

It is clear from the reasons for judgment and the transcript of proceedings that the purpose of issuing the certificate was to protect the applicant from prosecution for other offences not charged before the Court … As the Crown has sought to lead evidence of uncharged criminal activity as part of its case in proving the offence charged, it seemed to me that the applicant was entitled to defend himself free of running the risk of his evidence being used against him in subsequent proceedings for criminal activity for which he was then not being tried. It was not my intention, nor was it ever suggested during the course of argument, that the certificate could be used by the accused to protect himself from the use of his evidence in a proceeding for the charge in respect of which the evidence was given.[154]

Submissions and consultations

15.116 To correct the situation in Cornwell, in DP 69 it was proposed that s 128(7) of the uniform Evidence Acts be amended to clarify that a ‘proceeding’ under that section does not include a retrial for the same offence or an offence arising out of the same circumstances.[155]

15.117 In submissions, the CDPP and the NSW DPP agreed that s 128 should be amended to reflect the view of Howie J in Cornwell.[156] However, other submissions argued that the decision of Blackmore DCJ in Cornwell is an anomaly because of the facts in that case, and one that is likely to be corrected by the courts without the need for legislative amendment.[157]

15.118 The Commissions believe it is worthwhile to clarify s 128(7) to reflect this position and eliminate the possibility for further confusion. The proposed provision is set out in Appendix 1.

Recommendation 15–8 Section 128(7) of the uniform Evidence Acts should be amended to clarify that a ‘proceeding’ under that section does not include a retrial for the same offence or an offence arising out of the same circumstances.

Definition of a ‘NSW Court’

15.119 As noted in Chapter 2, the definition of an Australian court in the Evidence Act 1995 (Cth) is broader than the definition of a NSW court in the Evidence Act 1995 (NSW). A ‘NSW court’ is defined in the Dictionary as the Supreme Court or another court created by parliament including a body, other than a court, that is required to apply the rules of evidence.[158] The definition of an Australian court under the Commonwealth Act includes a person or body authorised under an Australian law to hear, receive and examine evidence (regardless of whether the rules of evidence must be applied). This means that the protection offered by a s 128 certificate under the Evidence Act 1995 (NSW) is more limited than under the Commonwealth Act as it does not extend to tribunals that are not required to, but may, apply the rules of evidence, such as disciplinary tribunals and other administrative bodies.[159]

15.120 In DP 69, the Commissions expressed the view that the current definition of a ‘NSW court’ under the Evidence Act 1995 (NSW) unduly limits the application of s 128 certificates. In order to reflect the policy basis of the section, the ambit of the protection of a certificate under the uniform Evidence Acts should be the same. As under the Evidence Act 1995 (Cth), the protection offered by a s 128 certificate should extend to administrative tribunals and disciplinary bodies authorised to receive and examine evidence. The Commissions proposed amendment of the Dictionary of the Evidence Act 1995 (NSW) to reflect the position under the Evidence Act 1995 (Cth) in this regard.[160]

15.121 Few submissions address this proposal. However, there is support for the change from the NSW DPP and the Law Society of New South Wales.[161] The Commissions have noted a concern that an amendment to the definition of a ‘NSW Court’ in the Dictionary of the Evidence Act 1995 (NSW) could affect the application of the Act to bodies beyond those to which it was intended to apply. As the desired outcome of the amendment was only that a certificate under the Evidence Act 1995 (NSW) have the same scope as under the Commonwealth Act, it is suggested that the amendment be given effect by amendment to s 128(7) of the Evidence Act 1995 (NSW) instead. A draft provision is located Appendix 1.

Recommendation 15–9 Section 128(7) of the Evidence Act 1995 (NSW) should be amended to provide that for the purposes of that provision a ‘NSW court’ means ‘any New South Wales court or any person or body authorised by a New South Wales law, or by consent of the parties, to hear, receive and examine evidence’.

Application of s 128 to ancillary proceedings

15.122 As noted above, at common law, the privilege against self-incrimination is a fundamental right recognised within the legal system. It has been said that the rule ‘is not simply a rule of evidence, but a basic and substantive common law right’.[162] The application of both the common law privilege and the procedure available under s 128 to proceedings which involve asset preservation or searching orders, such as Mareva and Anton Piller orders,[163] has been the subject of considerable case law and confusion.

15.123 The High Court established in Reid v Howard that a defendant could object to a compulsory disclosure order by invoking the privilege against self-incrimination.[164] This decision was in line with the House of Lords decision in Rank Film Distribution Ltd v Video Information Centre[165] where it was decided that a person who was the subject of an Anton Piller order or a Mareva order could invoke the privilege against self-incrimination.

15.124 In a number of cases, s 128 was held to apply to ancillary proceedings in the context of orders made ancillary to asset preservation orders requiring an affidavit of assets.[166] Part of a court’s power to grant asset preservation orders is the ability to require a person against whom such an order is made to attend court for an oral examination as to his or her assets. This examination usually occurs following the preparation of an affidavit of assets. In New South Wales, the Equity Division of the Supreme Court attempted to overcome the decision in Reid v Howard and to use the process under s 128 to require a party to provide an affidavit of assets.[167]

15.125 In Bax Global (Australia) Pty Ltd v Evans, Austin J described the practice of the Equity Division of the New South Wales Supreme Court. The court attempted to protect an affidavit of assets by using the following procedure when granting a s 128 certificate.

The Court initiates the disclosure procedure by making an order that a disclosure affidavit be prepared and delivered to the judge’s associate in a sealed envelope, together with directions that the affidavit not be filed or served on any other party, and that the further hearing be notified to the Director of Public Prosecutions. At that hearing the judge opens the envelope and inspects the affidavit. Any affidavit or oral evidence to support the witness’ objection is then adduced, and submissions are heard as to whether for the purposes of s 128(2) there are reasonable grounds for the objection, even though at that stage the plaintiff’s counsel has not had access to the affidavit which is the subject of the objection. The judge then rules on that question … Once the affidavit has been read, the s 128 certificate is given and attached to it.

If the witness elects not to give the evidence, then the Court hears any further submissions as to whether it should require the witness to give the evidence under s 128(5), and makes a determination accordingly. If the Court decides to require the witness to give the evidence, then it follows the procedure for the reading of the affidavit as outlined above. If the Court decides not [to] require the witness to give the evidence, the judge directs that all copies of the affidavit be returned to the witness’ legal representative and authorises their destruction.[168]

15.126 In Ross v Internet Wines Pty Ltd,[169] the New South Wales Court of Appeal disapproved of the practice in Bax. The Court held, in effect, that a respondent could not be compelled to disclose assets before any claim to the privilege against self-incrimination was adjudicated upon. Giles JA (with whom Spigelman CJ and McColl JA agreed) held that

it is impermissible for the court to substitute for a person’s fundamental common law right the statutory balance of rights, supplemented by court-devised additional protection by way of artificially making the disclosing party a witness, closure of the Court, limitations on who can see the disclosure affidavit, or if the privilege is upheld and no certificate is granted return of the affidavit to its maker; all not pursuant to statute but by the court devising procedure intended to inhibit the direct or derivative use against the person of information tending to incriminate.[170]

15.127 It was also unclear whether the use of the term ‘witness’ in s 128 includes a person who is not giving evidence in court. In Ross v Internet Wines Pty Ltd, the Court of Appeal was prepared to assume (but not decide) that a deponent of a disclosure affidavit would fall within the scope of ‘witness’ envisaged by s 128(1).[171]

15.128 The Supreme Court of New South Wales, in Pathways Employment Services v West,[172] considered the Bax practice in some detail. Campbell J questioned whether the approach taken in Bax is correct, because in essence it is the court directing the defendant to become a witness only so that the privilege against self-incrimination can be compromised.[173]

It is only by the active involvement of the Court, in setting a time and place for a special hearing which otherwise would never occur, that the first defendant would become a witness. I am not persuaded that these are circumstances within the scope of the circumstances for which Parliament intended section 128 of the Evidence Act 1995 to provide an exception to the privilege against self-incrimination.[174]

15.129 Campbell J commented that there was no coherence in the interaction between the law concerning privilege against self-incrimination and the law concerning compulsory disclosure of information for the purpose of civil proceedings.[175] His Honour noted that ‘a conflict has been long apparent between the policy underlying the privilege against self-incrimination and the policy that underlies the procedures, originally equitable, of discovery and interrogatories’.[176] For example, there are inherent tensions between the privilege against self-incrimination and the desire to prevent its use by a criminal defendant to avoid discovery and interrogatories in associated civil proceedings for the recovery or administration of property.[177]

15.130 Campbell J argued that the Commissions’ present Inquiry was an appropriate place to consider and clarify the application of s 128 (or similar powers in other legislation where the privilege is abrogated) to ancillary proceedings for the compulsory disclosure of information in civil matters.[178]

15.131 In Macquarie Bank Ltd v Riley Street Nominees Pty Ltd,[179] Campbell J made orders designed to meet the requirements of the Court of Appeal decision in Ross v Internet Wines. One of the orders stated that if the respondents considered that the order to produce an affidavit of assets may incriminate them, they had to file and serve within seven days an affidavit setting out their claim to the privilege against self-incrimination. If that claim for privilege was upheld, then the respondents did not need to disclose that information.

Proposal to abrogate the privilege

15.132 A committee of the Council of Chief Justices of Australia and New Zealand is currently investigating the question of the harmonisation of rules of court, practice notes and forms in relation to Mareva orders and Anton Piller orders. Following the release of IP 28, the Committee made a submission to the Inquiry suggesting that, to overcome the problems identified in the case law, the uniform Evidence Acts be amended to abrogate the privilege so that an order for disclosure must be obeyed.[180]

15.133 This position has been adopted in a number of other jurisdictions. Following the decision in Rank Films,[181] the Supreme Court Act 1981 (UK) was amended to provide that privilege against self-incrimination cannot be invoked in civil proceedings for intellectual property infringement. These are the kinds of proceedings where Anton Piller orders are most commonly made. The section provides a use immunity for any statements that are elicited in the course of obeying the order but no use immunity for any documents that are produced.[182]

15.134 In New Zealand, the new Evidence Bill[183] will follow the United Kingdom approach and prevents parties to Anton Piller orders from claiming the privilege against self-incrimination. Under cl 59 of the Bill, there is no privilege for pre-existing documents. However, the privilege can be claimed if the party is required to answer potentially self-incriminating questions or supply information in compliance with the order. If satisfied that self-incrimination is reasonably likely if a party provides the information sought by the order, the judge must make an order that the information provided not be used in any criminal proceeding against the person providing the information.

DP 69 proposal

15.135 In DP 69, the Commissions noted there are a number of potential ways in which the uniform Evidence Acts could be amended to require a person to provide information that is sought pursuant to the granting of a Mareva order or Anton Piller order.

15.136 For example, s 128 could be amended to abrogate the privilege in civil proceedings generally, where any order is made against an individual or a question is put to an individual. Alternatively, the privilege could be specifically abrogated where an order is made requiring an individual to disclose assets or other information (or to attend court to testify regarding assets or other information) or to permit premises to be searched. The information would not, however, be available to be used against that individual in any criminal proceeding or in any proceeding that would expose the individual to a penalty (except a proceeding for perjury or contempt of court). In DP 69, the Commissions considered that a general abrogation of the privilege in civil proceedings is unwarranted and preferred the limited abrogation of the privilege to specific types of orders to rectify the present problem with s 128.

15.137 A draft provision, s 128A, was set out in Appendix 1 of DP 69.[184] This provision had the effect that a person is not excused from complying with a court order on the ground that compliance with it may tend to prove that the person has committed an offence or is liable to a civil penalty. Any information given in those proceedings could not be used against the relevant person in any subsequent proceedings under the provision.

15.138 Since DP 69 was published, the Civil Procedure Act 2005 (NSW) has come into force. Section 87 of that Act extends the certificate procedure under s 128 to interlocutory proceedings. It has been put to the Inquiry that this may mean that the process under Bax will now be allowed, meaning the court can compel a person to comply with the order and then issue a certificate.[185] Nonetheless, it is suggested that, as a matter of policy, explicit abrogation of the privilege in relation to these orders is preferable.

Submissions and consultations

15.139 The NSW DPP supports the Commissions’ proposal, although some minor drafting amendments are suggested.[186] ASIC also supports the proposal.[187] The NSW PDO argues that, as the proposed provisions relate only to forfeiture proceedings, abrogation of the privilege is better dealt with in statutes dealing with those processes.[188]

15.140 The CDPP is concerned that the proposal can operate to give immunity from prosecution to a person who is being asked to comply with legitimate court orders. It opposes any provision which allows a person to give such evidence without the consequence that they may face prosecution. The CDPP is also concerned that the Commissions’ draft proposal contains a derivative use immunity. In its view, this can be open to abuse. A person can ‘engineer’ a compulsory disclosure so that the prosecution in any subsequent trial is obliged to prove that none of its evidence derives directly or indirectly from the compulsory disclosure.[189]

15.141 A general concern is expressed that the words used in the Commissions’ proposal are too broad and could capture, for example, any orders for discovery.[190] One Federal Court judge submits that any abrogation of the privilege and accompanying immunity must not defeat the object of the provision—which is ultimately to assist in the proper resolution of the dispute. For example, in relation to an Anton Piller order, a person can be obliged to provide material falling under the Copyright Act 1968 (Cth). Under the proposal in DP 69, that information can be obtained compulsorily, but then a person will be able to claim privilege in the proceedings instituted as a result of information obtained from the execution of the order.[191]

15.142 Since DP 69 was published, the Committee of the Council of Chief Justices of Australia and New Zealand has given further consideration to these issues. The Committee revised its original submission to the Inquiry and submits that Australia should follow New Zealand. The privilege against self-incrimination should not apply to documents which existed prior to the making of an order for disclosure and should apply only to documents which are brought into existence in compliance with the order. The Committee further submits that, unlike the position in New Zealand, both Anton Pillar orders and Mareva orders should be encompassed in the amendments.[192] The Committee proposes that provisions having the following effect be inserted in the uniform Evidence Acts, following s 187.[193]

187A No Privilege Against Self-Incrimination for Pre-Existing Documents

At no stage of any proceeding is any person entitled to refuse or fail to comply with an order for production of a pre-existing document or thing that was not created pursuant to a court order, or to object to the inspection or admissibility of evidence of such a document or thing, on the ground that to do so might tend to incriminate the person or make the person liable to a civil penalty.

187B No Privilege Against Self-Incrimination Re Disclosure Orders etc in Civil Proceedings

(1) At no stage of a civil proceeding is a person entitled to refuse or fail to comply with an order of the court requiring the person to do one or more of the following:

(a) disclose information

(b) permit the premises to be searched

(c) permit inspection, copying or recording or documents or things

(d) secure or deliver up or permit removal of documents or things.

(2) If the court finds, on application being made at any time, that the evidence of any information, document or thing disclosed found or obtained in direct or indirect compliance with the court order might tend to incriminate the person or make the person liable to a civil penalty, the court is to cause the witness to be given a certificate under this section in respect of the evidence. Evidence in respect of which a certificate has been given under this section cannot be used against a person in any criminal or civil penalty proceedings in [an Australian court][a [name of State] court].

(3) Subsection (2) does not apply to a pre-existing document or thing referred to in section 187A.

(4) Subsection (2) does not apply to a criminal proceeding in respect of the falsity of the information disclosed in compliance with the court order.

(5) If a person has complied with an order of the kind referred to in subsection (1) made by an Australian court to which subsection (1) does not apply, subsections (2), (3) and (4) apply in the same way as if the order was made by a court to which subsection (1) applies.

The Commissions’ view

15.143 The availablility of the privilege against self-incrimination in the context of compulsory disclosure orders needs to be addressed. The Commissions agree with the Committee of the Council of Chief Justices that the express abrogation of the privilege against self-incrimination is required in relation to orders made in a civil proceeding requiring a person to disclose information about assets or other information (or to attend court to testify regarding assets or other information) or to permit premises to be searched. This must be accompanied by a protection in relation to the subsequent use of that information.

15.144 The Commissions support the submission of the Committee that a distinction should be drawn between a witness testifying or preparing a document in response to an order (for example, an affidavit), and orders for the production of documents already in existence. At common law, unless abrogated expressly or by necessary implication, the privilege against self-incrimination applies to any documents that an individual is required to produce.[194] However, some case law recognises that some documents can be considered to be ‘real evidence’, which is not protected by the privilege.

15.145 In Environment Protection Authority v Caltex Refining Co Pty Ltd (Caltex), Mason CJ and Toohey J explained the distinction as follows:

It is one thing to protect a person from testifying as to guilt; it is quite another thing to protect a person from the production of documents already in existence which constitute evidence of guilt … [documents] are in the nature of real evidence which speak for themselves as distinct from testimonial oral evidence which is brought into existence in response to an exercise of investigative power or in the course of legal proceedings.[195]

15.146 McHugh J in Caltex cited Lord Templeman in Istel v Tully[196] to the effect that ‘it was difficult to see why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents that are in his possession or power and which speak for themselves’.[197]

15.147 In its report on Abrogation of the Privilege against Self-Incrimination, the Queensland Law Reform Commission found that one of the justifications for abrogation of the privilege could be, in the case of information in documentary form, whether the document was in existence at the time the requirement to provide the information was imposed.[198]

15.148 In the United States, pre-existing documents that must be kept as part of a requirement of a regulatory scheme are not protected by the privilege.[199] After considering the United States case law, the New Zealand Law Commission similarly recommended that the privilege should not apply to pre-existing documents or real evidence. The fact that there is no compulsion at the time of creation means that the likelihood of compulsion causing the evidence to be unreliable, or for the information to be created from an abuse of power, is minimal.[200] Under cl 59 of the New Zealand Evidence Bill, there is no privilege for pre-existing documents, as the section relates only to the giving of ‘incriminating information’ which is defined as information prepared or created after and in response to the requirement of an order.[201]

15.149 The Commissions note the drafting concerns that were raised in submissions in relation to the proposed s 128A that was contained in DP 69. The Commissions recommend that the section still contain a use and derivative use immunity over the information, which is consistent with the provisions of the current s 128. There were also concerns about proposed s 128A being used to prevent the production of documents obtained as a result of a search order being used in later criminal proceedings. This will be overcome by the proposal to limit the availability of the privilege to documents prepared for the purpose of the order, and not pre-existing documents.

15.150 The Commissions therefore recommend that the uniform Evidence Acts should be amended to provide that the privilege against self-incrimination cannot be claimed in respect of orders made in a civil proceeding requiring a person to disclose information about assets or other information (or to attend court to testify regarding assets or other information) or to permit premises to be searched. However, evidence obtained in compliance with such orders should not then be able to be used against the person in a criminal or civil penalty proceeding against the person, where the court finds that the evidence might tend to incriminate the person, or make the person liable to a civil penalty. This use immunity should only apply to documents or information created pursuant to the court order, and not to a pre-existing document or thing.

15.151 The Commissions note that it is not clear at present how such a recommendation would interact with the new s 87 of the Civil Procedure Act 2005 (NSW). Any amendments to that section that are required should be considered if Recommendation 15–10 is adopted. The Commissions have not included a draft provision for the implementation of this recommendation in Appendix 1.

Recommendation 15–10 The uniform Evidence Acts should be amended to provide that the privilege against self-incrimination cannot be claimed in respect of orders made in a civil proceeding requiring a person to disclose information about assets or other information (or to attend court to testify regarding assets or other information) or to permit premises to be searched. However, it should be provided that evidence obtained in compliance with such orders cannot be used against the person in a criminal or civil penalty proceeding against the person, where the court finds that the evidence might tend to incriminate the person, or make the person liable to a civil penalty. This use immunity should only apply to documents or information created pursuant to the court order, and not to a pre-existing document or thing.

[123] Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 335.

[124] Clause 3 of Pt 2 of the Dictionary in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) defines a ‘civil penalty’ as a penalty (other than a criminal penalty) arising under Australian law or a law of a foreign country. The protection of a certificate does not appear to extend to use of the evidence for administrative purposes, such as cancellation of a licence or a banning order under the Corporations Act 2001 (Cth). Administrative actions have been traditionally held by the courts to have a protective purpose, rather than that of a penalty or punishment: eg, ASC v Kippe (1996) 67 FCR 499. However, in relation to the common law privilege against self-exposure to a penalty, the High Court has found that disqualification orders may have both a protective and a penal purpose, and therefore the privilege may apply: Rich v Australian Securities and Investments Commission (2004) 209 ALR 271.

[125] See J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [128.05].

[126] Under the Evidence Act 1995 (Cth) the protection afforded under the certificate only extends to any proceeding in a NSW court. However, under s 128(10) and 128(11) of the Evidence Act 1995 (Cth), a certificate given under the NSW Act operates as though it were given under the federal Act, thereby extending the protection to any Australian court. That extended effect also applies to the direct and derivative use immunities contained in s 128(7).

[127] And in the equivalent Evidence Regulations (NSW).

[128] See also S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.13060].

[129] Uniform Evidence Acts s 128(4).

[130] Ibid s 187.

[131] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [861].

[132] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [215].

[133] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.223]–[13.226], see Proposal 13–9 and Question 13–2.

[134] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Australian Securities & Investments Commission, Submission E 97, 20 September 2005;

[135] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[136] Law Institute of Victoria, Submission E 116, 27 September 2005.

[137] Family Court of Australia, Submission E 80, 16 September 2005.

[138] Ibid.

[139] Ibid.

[140] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [860].

[141] New Zealand Law Commission, The Privilege Against Self-Incrimination: A Discussion Paper (1996), 119.

[142] Ibid, 77.

[143] See Evidence Bill 2005 (NZ) cl 56(1)(b) and cl 57.

[144] S McNicol, Consultation, Melbourne, 17 March 2005.

[145] See s 132 of the uniform Evidence Acts.

[146] Although see Recommendation 15–10 below.

[147] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.13100]. See discussion of what is meant by ‘proceeding’ in Ch 2.

[148] Ibid, [1.3.13100].

[149]R v Cornwell [2004] NSWSC 45.

[150] Ibid.

[151] Ibid, [12].

[152] Ibid, [11].

[153] Ibid, [18].

[154] Ibid, [9]–[10].

[155] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–11.

[156] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005; Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[157] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[158] The definition of a ‘Tasmanian court’ is substantially the same in Evidence Act 2001 (Tas) s 3.

[159] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.13100].

[160] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 13–12. See also Rec 2–1.

[161] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[162]Reid v Howard (1995) 184 CLR 1, 11–12.

[163] Both types of orders are interim orders designed to preserve the ‘status quo’ for parties to a matter while they await a judgement or further orders. A ‘Mareva order’ is a freezing order which is designed to prevent a respondent from removing assets from the jurisdiction prior to judgment. An Anton Piller order is a search order allowing inspection and seizure of evidence which is in danger of being destroyed, concealed or removed, and that is needed to prove the applicants claim: P Biscoe, Mareva and Anton Piller Orders: Freezing and Search Orders (2005), [1.1].

[164]Reid v Howard (1995) 184 CLR 1.

[165]Rank Film Distribution Ltd v Video Information Centre [1981] 2 All ER 76.

[166] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [128.10].

[167] J Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7th ed, 2005), [8.88].

[168]Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538, [41]–[46].

[169]Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436.

[170] Ibid, 452.

[171] Ibid, 451. Although see In the Marriage of Atkinson (1997) 136 FLR 347, where Lindenmayer J held that litigants in the Family Court who are required to file affidavits prior to a hearing may make an application under s 128: J Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7th ed, 2005), [8.82].

[172]Pathways Employment Services v West (2004) 212 ALR 140.

[173] Ibid, [40].

[174] Ibid, [40].

[175] Ibid, [46].

[176] Ibid, [12].

[177] Ibid, [13].

[178] Ibid, [49].

[179]Macquarie Bank Ltd v Riley Street Nominees Pty Ltd [2005] NSWSC 162.

[180] Committee of the Council of Chief Justices of Australia and New Zealand, Submission E 52, 22 April 2005.

[181]Rank Films Distributors v Video Information Centre [1982] AC 380.

[182]Supreme Court Act 1981 (UK) s 72.

[183] At the time of writing the Bill was under consideration by the Justice and Electoral Parliamentary Committee see: <http://www.clerk.parliament.govt.nz/Programme/Committees/Submissions/jee....

[184] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [13.236]–[13.237]; Appendix 1.

[185] P Biscoe, Consultation, Sydney, 28 July 2005.

[186] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[187] Australian Securities & Investments Commission, Submission E 97, 20 September 2005.

[188] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[189] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[190] P Biscoe, Consultation, Sydney, 28 July 2005.

[191] Justice C Branson, Consultation, Sydney, 25 July 2005.

[192] Justice K Lindgren (on behalf of a Committee of the Council of Chief Justices of Australia and New Zealand), Submission E 75, 14 September 2005.

[193] Section 187 abrogates the privilege against self-incrimination for corporations.

[194] Queensland Law Reform Commission, Abrogation of the Privilege against Self-Incrimination: Final Report, R 59 (2004), 36.

[195] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 493.

[196] Istel v Tully [1993] AC 45, 53.

[197] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 555.

[198] Queensland Law Reform Commission, Abrogation of the Privilege against Self-Incrimination: Final Report, R 59 (2004), 62–63.

[199] Shapiro v United States 335 US 1 (1948). See also New Zealand Law Commission, The Privilege Against Self-Incrimination: A Discussion Paper (1996), 61.

[200] Ibid, 63.

[201] Evidence Bill 2005 (NZ) cl 47.