FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted in respect of proposed grounds of appeal 1 to 3 in the draft notice of appeal filed on 5 June 2017.

2.    Grounds 1 to 3 in the draft notice of appeal filed on 5 June 2017 be treated as a notice of appeal.

3.    The appeal be dismissed.

4.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1    I agree with the reasons for judgment of Bromwich J and with the orders proposed.

Associate:

Dated:    30 January 2018

REASONS FOR JUDGMENT

TRACEY J:

2    I too agree with the reasons of Bromwich J and the orders which his Honour proposes.

Associate:

Dated:    30 January 2018

REASONS FOR JUDGMENT

BROMWICH J:

3    This is an application for leave to appeal and, if leave is granted, an appeal by the Construction, Forestry, Mining and Energy Union (CFMEU) and Mr Drew MacDonald, an official of the CFMEU, from orders made by a judge of this Court. His Honour refused an application made on behalf of Mr MacDonald for a certificate under s 128 of the Evidence Act 1995 (Cth) (s 128 certificate). That application was made in the course of Mr MacDonald giving evidence in chief in defence of civil penalty proceedings brought against him, the CFMEU and another respondent by the Australian Building and Construction Commissioner under s 546 of the Fair Work Act 2009 (Cth) (FW Act). Those proceedings have since been stayed pending the outcome of the application for leave to appeal and the determination of the appeal if leave is granted. As leave to appeal should be granted for the reasons outlined below, it will be convenient to refer to the CFMEU and Mr MacDonald collectively as the appellants.

4    The application for a s 128 certificate was made after Mr MacDonald indicated, in the course of being examined in chief by his counsel, that he was concerned about giving certain evidence because it might incriminate him. The key issue that has arisen is whether Mr MacDonald was a witness “objecting” to the giving of the proposed evidence, so as to engage s 128 of the Evidence Act. The primary judge answered that question in the negative. Critically, his Honour did not consider that Mr MacDonald was under any legal compulsion to give the evidence in respect of which he sought the s 128 certificate. On that basis, his Honour, with some degree of misgiving, decided the case by reference to a decision of the New South Wales Court of Appeal, Song v Ying [2010] NSWCA 237; 79 NSWLR 442, aided by obiter dicta of the High Court in Cornwell v The Queen [2007] HCA 12; 231 CLR 260.

5    The primary judge was not able to conclude that Song was plainly incorrect, and was therefore bound to follow the Court of Appeal in compliance with Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; 230 CLR 89 at [135]; see also Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492; and CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [48]-[50], [63]. The conclusion his Honour reached was, at least on one view, contrary to that reached by the Full Court of the Family Court of Australia in Ferrall v Blyton [2000] FamCA 1442; 27 Fam LR 178.

6    Mr MacDonald’s case on appeal does not rely on showing error in the primary judge’s finding that he was not under any legal compulsion to give the proposed evidence. Although that point was advanced in a ground of appeal, this was not pressed at the appeal hearing. Rather, Mr MacDonald contends that, notwithstanding that there might have been an absence of legal compulsion, the act of him formally raising an objection to giving evidence without the protection of a certificate was sufficient to trigger the operation of s 128. To that end, he bore the onus in this appeal of showing that the New South Wales Court of Appeal’s decision in Song was plainly wrong and should not be followed.

7    The grant of leave to appeal was not opposed by the Commissioner. Because the issue is of some importance, has not been the subject of a determination of a Full Court and involves, at least on one view, competing intermediate appeal court authority, it is appropriate to grant leave to appeal. However, for the reasons that follow, the appeal should be dismissed.

8    An overview of the proceedings before the primary judge is set out below. That is followed by a consideration of the history of s 128 as a modification of the common law privilege against self-incrimination. Particular regard is had to the contribution of a report of the Australian Law Reform Commission (ALRC) to the enactment of the certification procedure in s 128, before turning to what was said in the key authorities. The parties’ submissions, especially for Mr MacDonald, are then evaluated in that context.

Overview of the case in which the issue arose

9    The underlying proceedings before the primary judge concern an application by the Commissioner for remedies in relation to alleged contraventions by Mr MacDonald and others of ss 340(1), 343(1), 346 and 348 of the FW Act. It is relevantly alleged that Mr MacDonald took unlawful action against a head contractor responsible for constructing a new Aldi supermarket at a site in Altona North, Victoria. In particular, Mr MacDonald is said to have blockaded the construction site on 5 and 8 December 2014 by parking his vehicle at the site entrance. It is alleged that his reason for doing so was the head contractor’s failure to have made an enterprise agreement with the CFMEU or, alternatively, that he had the intention of coercing the head contractor to make an enterprise agreement with the CFMEU.

10    An important feature of the ongoing proceedings before his Honour is the potential operation of s 361(1) of the FW Act. Section 361 relevantly provides:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

11    As was noted by the primary judge at [5], contravention of each of the relevant civil remedy provisions depends upon it being established that the alleged conduct was taken by Mr MacDonald for a particular reason or with a particular intent. When, as in this case, s 361(1) of the FW Act is engaged, such a proscribed motivation or intent is to be presumed, with the onus then cast on the respondent to prove that his or her conduct was not engaged in for that reason or with that intent.

12    By his further amended defence in the proceedings before the primary judge, Mr MacDonald admitted that he had blockaded the construction site on 5 and 8 December 2014. However, he denied that he had acted for the reasons or with the intent alleged by the Commissioner. It was in that context that he indicated, during examination in chief by his counsel, that he was concerned about giving certain evidence because it might “incriminate” him by tending to prove that he had contravened the FW Act on a basis other than the one pleaded against him. He sought a s 128 certificate in respect of that evidence. It was not in doubt that were the operation of s 128 triggered, there would be reasonable grounds for the “objection” made by Mr MacDonald and there would be no other impediment to the grant of the certificate he sought.

13    Mr MacDonald’s submissions in support of his application for a s 128 certificate were largely responsive to the New South Wales Court of Appeal’s reasoning in Song, insofar as it was found in that decision that, in the case of a party witness giving evidence in chief, s 128 requires consideration of “whether the witness was otherwise compellable to give the evidence objected to” (at [22]). Relevantly, Hodgson JA, writing for the Court of Appeal in Song, had also observed at [24] that “there would rarely if ever be a question that the evidence in chief is given under compulsion or because of liability to compulsion” (emphasis added).

14    Mr MacDonald contended that his case represented one of the rare exceptions to the proposition in Song that the giving of evidence in chief by a party witness will not involve an element of compulsion. This was argued on the basis that he was essentially compelled to give evidence of his intent or the reasons for his impugned conduct by operation of the reverse onus provision in s 361(1). The primary judge rejected this argument, doing so on the basis that the nature of the compellability asserted by Mr MacDonald had been rejected in Song. In that regard, it was observed by his Honour that Hodgson JA in Song had drawn a distinction between the compellability of a witness to answer questions at the instance of a party who had called the witness, or at the instance of a judge, and the motivation of a defendant to give evidence to avoid having a judgment entered against him or her. The latter was characterised as not amounting to relevant compellability.

15    The primary judge, despite expressing some reservations, could not conclude that Song was plainly wrong. Mr MacDonald’s application for a s 128 certificate was therefore refused.

Section 128 of the Evidence Act 1995 (Cth)

16    Section 128 of the Evidence Act obliges the Court to give a witness a certificate under that provision if certain requirements are met. The substantive effect of such a certificate is that the evidence given by the witness in respect of which the certificate has been granted, and any evidence obtained as a direct or indirect consequence, may not be used against that person in any proceeding in an Australian court: s 128(7).

17    The provision is relevantly engaged if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence arising under Australian law or a law of a foreign country, or is liable to a civil penalty: s 128(1). If the section is engaged, the Court must determine whether or not there are reasonable grounds for the witness’ objection: s 128(2). If satisfied of those grounds, the Court must inform the witness that:

(1)    they need not give evidence unless required; and

(2)    the Court will give the witness a certificate if the witness willingly gives the evidence, or if the witness gives the evidence after being required to do so by the Court.

18    Because of the issues of interpretation involved, it is necessary to set out s 128 of the Evidence Act in full, noting that the current version differs in certain respects from the version in force when Song and a number of other cases were decided:

128     Privilege in respect of self-incrimination in other proceedings

(1)    This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a)    has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b)    is liable to a civil penalty.

(2)    The court must determine whether or not there are reasonable grounds for the objection.

(3)    Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:

(a)    that the witness need not give the evidence unless required by the court to do so under subsection (4); and

(b)    that the court will give a certificate under this section if:

(i)    the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii)    the witness gives the evidence after being required to do so under subsection (4); and

(c)    of the effect of such a certificate.

(4)    The court may require the witness to give the evidence if the court is satisfied that:

(a)    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

(b)    the interests of justice require that the witness give the evidence.

(5)    If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6)    The court is also to cause a witness to be given a certificate under this section if:

(a)    the objection has been overruled; and

(b)    after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7)    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.

(8)    Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

(9)    If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.

(10)    In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:

(a)    did an act the doing of which is a fact in issue; or

(b)    had a state of mind the existence of which is a fact in issue.

(11)    A reference in this section to doing an act includes a reference to failing to act.

(12)    If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

(13)    The following are prescribed State or Territory provisions for the purposes of subsection (12):

(a)    section 128 of the Evidence Act 1995 of New South Wales;

(b)    a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection (12).

(14)    Subsection (12) applies to:

(a)    a proceeding in relation to which this Act applies because of section 4; and

(b)    a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph (a).

Note 1:    Bodies corporate cannot claim this privilege: see section 187.

Note 2:    Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.

Note 4:    Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen [2007] HCA 12 (22 March 2007).

The history of s 128

19    The certificate procedure in s 128 of the Evidence Act reflects a modification of what is referred to generally as the common law privilege against self-incrimination. That privilege entitles a person to refuse to answer any question, or produce any document, if the production would tend to incriminate that person: Sorby v Commonwealth (1983) 152 CLR 281 at 288. Section 128 also encompasses the distinct privilege against self-exposure to a civil or administrative penalty, also known as penalty privilege. Both aspects – privilege against self-incrimination and penalty privilege – will be considered as a single privilege for the purposes of these reasons, although there are some important differences which do not presently need to be explored.

20    As Crennan J observed in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [134]:

In different contexts, legislatures have abrogated or modified the privilege against self-incrimination, and the closely related but not co-extensive right to silence, when public interest considerations have been elevated over, or balanced against, the interests of the individual so as to enable the true facts to be ascertained.

21    The House of Lords, now the Supreme Court of the United Kingdom, in addressing such a modification and balancing exercise in relation to the interrogation powers of the Serious Fraud Office, said in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30 that the general immunity from being compelled, on pain of punishment, to answer questions the answers to which may incriminate a person, was to be regarded as one of a number of a group of disparate immunities falling under the general expression of the “right to silence”. When considering a statutory modification, it is necessary to look at the reasons behind the immunity in the first place, in order to understand better what the modification is seeking to achieve.

22    Properly understood, the privilege is to be understood as a negative right to resist compulsion. It reflects “the long-standing antipathy of the common law to compulsory interrogations about criminal conduct”: Lee at [1] per French CJ.

23    In considering the operation of s 128 as a modification of the privilege, it is useful to have regard to an Interim Report delivered by the Australian Law Reform Commission in 1985, ALRC 26 (ALRC Report), which preceded the enactment of the provision and addressed the issue of whether the common law privilege against self-incrimination should be abolished or instead modified. The ALRC recommended that the privilege be retained in modified form by way of the adoption of a certification procedure that was modelled, with some variations, on provisions operating in the Australian Capital Territory. The recommendation was summarised at xxxviii as follows:

At common law, a witness can object to answering any question the answer to which may tend to incriminate him. This privilege has been subject to various modifications in different jurisdictions. In particular, in Western Australia, Tasmania and the Australian Capital Territory there is a certification procedure under which a judge may grant a certificate which either confers immunity from prosecution on the witness or renders any evidence that he may give inadmissible against him in any subsequent criminal proceeding. In recent years the issue has been raised as to whether the privilege should be abolished. This issue is considered in the report. The conclusion reached is that the privilege should be retained as a protection of the individual's personal freedom. It is, however, recognised that the privilege can deprive the courts of information relevant to the proceedings and thus make the fact finding task more difficult. The Commission has formed the view that the proper solution in light of the competing interests is to retain the privilege in a modified form. A modified version of the certification procedure operating in the Australian Capital Territory is proposed. Under this proposal a witness may claim the privilege but if he is prepared to testify, the judge may issue a certificate which will prevent the evidence being admitted against him in subsequent legal proceedings. Unlike the ACT provision, the certificate will only be issued if the witness consents to the procedure. The decision will be for the witness, not for the judge.

24    The recommendation of the ALRC for a certification procedure was ultimately adopted by the enactment of s 128, save that a court was given the power to require the giving of evidence under certificate notwithstanding that a witness might not consent: see s 128(4).

25    The ALRC Report was tabled in the Parliament of the Commonwealth on 21 August 1985, long before the commencement of the Evidence Act, and s 128 in particular, in 1995. Accordingly, it may be considered in confirming the ordinary meaning of the text or determining the meaning of s 128 where any ambiguity or obscurity arises, or where the ordinary meaning of the provision leads to an absurd outcome: s 15AB(1) and (2)(b) of the Acts Interpretation Act 1901 (Cth).

26    The ALRC Report summarised the existing position as to the privilege as follows:

464. Common Law. A number of difficulties exist with the interpretations of the common law privilege:

•    aspects of the privilege may be criticised as anachronistic; particularly, those that have allowed its invocation where it would expose the witness to ecclesiastical censure, notoriety of adultery, disgrace or liability to forfeiture;

•    many judges perceive themselves under no obligation to inform a witness of his right to claim the privilege, meaning that witnesses who have not received legal advice may incriminate themselves without realising that they were not obliged to;

•    should a judge compel the giving of testimony by a witness and in the course of that discover that the testimony was in fact self-incriminating, at common law it is probable that the witness has no alternative but to suffer the consequences; no retrospectivity of protection is available.

Some critics argue that the privilege should be abolished. This issue is considered in the Commentary to the Proposals.

465. Legislation. Aspects of the present certification provisions cause concern:

•    The operation of the certification provision depends entirely upon the exercise of an unguided discretion. The decision has potentially grave consequences for the witness. The consideration (‘in the interests of justice’) gives no guidance. Is the judge to consider what consequential evidence might be obtained? He cannot do this without knowledge of the evidence the witness is likely to give.

•    The judge is placed in the position of deciding whether the witness must be compelled to answer the incriminating questions. It is a proper matter for concern that a judge may be seen to be forcing people to give such evidence in the exercise of his unfettered discretion.

•    Once the judge has made the decision, the witness on being informed of the availability of the certificate must answer the questions regardless of what the answers may reveal—he has no choice in the matter.

•    The witness will receive the certificate only if he answers all the questions. If some unforeseen issue arises and he is questioned about it, he must answer.

27    The ALRC report explained the rationale for the privilege which the recommended certification procedure was intended to modify as follows:

852. Rationale. The issue to be considered is the availability to a witness of a right to object to answering questions on the ground that, to do so, may expose the witness to the risk of criminal and other proceedings adverse to him. Several justifications have been suggested:

•    A Fundamental Human Right. The privilege developed in response to the abuses of past centuries, including the practices of the Star Chamber. It has persisted and is now supported by many as a human right. Justice Murphy has recently spoken of the correlation between human rights and the right to privacy on the one hand and the existence of a privilege against self-incrimination on the other:

The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality.

Griswold remarked that ‘the privilege against self-incrimination is one of the greatest landmarks in man’s struggle to make himself civilised. It has been referred to as a ‘fundamental bulwark of liberty’.

•    It has, however, been suggested that it is not entirely proper to classify the privilege against self-incrimination by the emotive terminology of ‘fundamental human right’. It has been argued that the privilege came into existence as a means of protection from the abuses of the process in the seventeenth century, notably the Star Chamber, and that with current procedural and evidentiary protections it is not a necessary concomitant of a fair and humane criminal justice system. Whatever its origins, however, the role it plays in defining the relationship between the individual and the State is significant and warrants the categorisation of ‘human right’. It also reflects and supports the philosophy that the State must prove its case without recourse to the suspect. It also protects people against oppressive official behaviour. It must be acknowledged, however, that the protection given outside the courtroom is more necessary than that given in it. In the courtroom controls exist to protect the witnesses. It should also be noted that while one can speak of the privilege in terms of human rights, there is only arguable support in the International Covenant for treating the privilege applied in the courtroom as a human right.

•    Encouraging Persons to Give Evidence. The privilege against self-incrimination may encourage witnesses to testify. Its effect is that the witness can give evidence without fear of having to give answers against his own interests. However, the State can give a witness protection by granting a nolle prosequi in respect of offences as to which it is desired that he give evidence. The decision on the entering of a nolle prosequi, though, is that of the Attorney-General alone. Its protection, however, is limited. A nolle prosequi terminates the particular proceedings but is not a discharge or an acquittal on the merits and the courts have been ‘almost unanimous in holding that it is no bar to new criminal proceedings’. Thus, the procedure affords a qualified protection to the witness, his fate resting on the continuing good will of the State.

It is clear that the carrot of not having to give evidence on any subject that may incriminate a witness will have some effect upon those considering giving evidence before the courts. How much effect it will have, however, is another matter. The mere fact of refusal to testify on a certain matter puts the relevant authorities on clear notice that a witness has something to hide.

•    Avoidance of Undue Hardship and Perjured Testimony. The witness can escape the unpleasant dilemma of choosing between harmful disclosure, contempt, and perjury. It may be said that a privilege is a reflection ‘of a humane attitude which saves even the guilty from a harsh choice among perjury, recalcitrance or confession’. It must be remembered, however, that the problem arises because of the witness’ past misdeeds. If his slate is clean, the compulsory questioning as to whatever is relevant to the matters in issue is unlikely to cause undue distress or hardship.

•    Avoiding Suspect Evidence. If a witness is compelled to answer incriminating questions the quality of the evidence provided may well be suspect because of the likelihood of perjury. The privilege may, thus, be viewed as a recognition by the law of the folly of commanding the unlikely and the untrustworthy. This argument is one of the strongest for retaining the privilege in its traditional form. It is doubtful, for example, whether significant amounts of additional and relevant evidence would be obtained by the substitution for the common law of a certification procedure barring only the use of the witness’ words in later proceedings.

28    The ALRC Report then considered a number of arguments for the abolition of the privilege, which were summarised at [853] as follows:

853. Arguments for Abolition of the Privilege. The foregoing considerations warrant the retention of an appropriate form of protection for witnesses. The critics, however, argue that the blanket privilege tilts the balance too much in favour of the individual against the State. It has been said that the privilege is a ‘hiding place of crime’:

Overwhelming difficulties confront the government today in the detection and prosecution of crime. In the case of a large number of offences the proof is difficult, if not impossible of ascertainment without the testimony of individuals accessory to the act.

Douglas Meagher QC recently has expressed grave concern to a similar effect:

It is not putting it too highly to say that if the privilege against self-incrimination is allowed to continue, there will be a whole class of highly intelligent people in our community who will be able to perpetrate massive criminal schemes with impunity. Their belief that they can do so has already arisen, as is shown by the massive taxation fraud of the last decade.

Justice Stewart recommended changes to the Commissions of Enquiry Acts 1950-1954 (Queensland) and the Evidence Act 1958 (Victoria) so that Commissions of Enquiry have power to compel persons appearing before them to answer relevant questions whether or not any such answer may or may not tend to incriminate such persons.

29    In support of its recommendation that the common law privilege should be retained, albeit in modified form, the ALRC considered that the following options were available:

(1)    certification, with the evidence then given not being admissible in subsequent proceedings;

(2)    certification, with neither the evidence nor consequential evidence being admissible in subsequent proceedings (these days commonly referred to as a “use/derivative use” prohibition);

(3)    certification being a bar to prosecution – in effect, a statutory transactional indemnity – but with doubtful legislative capacity of the Commonwealth to bind the States; or

(4)    optional certification, by which the witness would be able to choose whether or not to be given the certificate and thus give evidence, with the certificate affording protection against use of the evidence in subsequent proceedings.

30    Ultimately, the optional certification model referred to at (4) of the preceding paragraph was recommended by the ALRC. That was the only model that would have left the final question of whether evidence should be given under certificate in the hands of the witness. It will be apparent, however, that the model that was implemented by the legislature was the second model outlined above. That option provided for evidence to be compelled by a judicial officer if so ordered under s 128(4), but with protection from “use/derivative use” in subsequent proceedings by virtue of s 128(7).

31    It is instructive to consider the full terms of the ALRC’s proposal, noting that the interpretative assistance to be derived from this aspect of the ALRC Report may be seen to be diminished in light of the legislature having declined to adopt the ALRC’s recommendations in full. The relevant passage was as follows:

862. Proposal. The optional certification procedure is put forward as the preferred alternative. For the reasons given above, it best addresses the competing policy issues. Specific features of the proposal should be noted.

•    Ambit of the Provision. A witness under the proposal is limited in his right to object to refusing to give evidence on the ground that it may tend to show that he has committed an offence or is liable to a civil penalty. A witness cannot refuse to give evidence on the ground that it might tend to ‘disgrace’ him, show him guilty of forfeiture or adultery or meriting of ecclesiastical censure. Anachronisms present in the existing law are, therefore, removed.

•    Limits to Provision. Evidence with the protection of the certificate may still be given in respect of proceedings for perjury brought in respect of the evidence given:

•    Oral/Documentary Evidence. No distinction is drawn in the legislation between the giving of oral and documentary evidence. This reflects the current position. A difference may be said to be that the document in issue in most cases will be one that has been brought into existence for purposes unrelated to the court proceedings. Oral and documentary testimony are, however, often intimately related.

•    Natural Persons/Corporations. The law at present in England is that the privilege against self-incrimination applies to an answer tending to incriminate a corporation. The High Court has yet to rule on this question. Expressions of opinion on the subject have not as yet been received by the Commission although some debate in respect of the privilege arose in discussions concerning the National Crimes Commission Act 1982. It is not proposed at present to delimit the privilege or the protection accorded by the indemnity provisions by expressly excluding corporations. The issue will not arise in the courtroom because of the logistic problem that a corporation cannot testify in the box. It is not proposed to advance specific proposals. The Commission’s view, however, is that the rationale for the privilege does not warrant its extension to corporations. The issue would have to be faced, however, if the proposals are to be applied to pre-trial discovery.

•    Availability to Spouses. The protection in the legislation is not extended to questions incriminating spouses. It is doubtful whether the common law privilege extends to such questions. While there are dangers of unreliability of evidence tending to incriminate a spouse, it is felt that this should reflect upon the degree of weight to be attached to the testimony rather than its admissibility. Where the witness is the spouse of the accused, the non-compellability discretion will be available.

•    Retrospective Certification. Where an objection to giving evidence has been overruled by the court and the witness has given evidence which would tend to show that he has committed an offence or become liable to a civil penalty, the court may give a certificate to cover the evidence so compelled. This provides flexibility and a mechanism for the court to correct what may have been an erroneous ruling. It is an additional safeguard for the witness and is analogous with the common law.

•    Informing of Rights. Under the draft legislation, the court must satisfy itself that the witness is aware of his rights.

•    Constitutionality. There do not appear to be any constitutional impediments to the legislation as proposed. As an exercise of powers incidental to the judicial head of power, the effect of the Commonwealth legislation will be that the certificate issued by a federal court will be recognised by all courts in Australia. This provides real protection for admissions against interest compelled by the certification procedure and introduces uniformity in the area so far as it can be achieved by federal legislation.

•    Inferences from Claim of Privilege. No adverse inference should be drawn from the fact that privilege is claimed. Under existing law, no adverse inferences should be drawn where a person claims a privilege. It is not thought to be necessary, therefore, expressly to forbid the drawing of adverse inferences.

32    As can be seen from the above passages, the ALRC Report did not suggest that what was in contemplation by the enactment of a certification procedure was a wholesale change to the nature of the privilege against self-incrimination and how it would operate. Quite to the contrary. The submissions calling for abolition of the privilege were dutifully recorded, but nothing more than modification was recommended.

33    That recommendation was for the complete retention of protection against any compulsion to give evidence, with the alternative certification process being optional to the witness and conditioned on their consent. There is nothing in the ALRC Report to suggest that there was perceived to be a problem with party witnesses having to make a choice about whether or not to give evidence in chief that might tend to incriminate them by way of use in a later investigation, prosecution or civil penalty proceeding, in return for obtaining the benefit of such evidence. When in fact compelled to answer questions under cross-examination, a party witness would have the same protections under s 128 as any other witness who might seek to refuse to answer questions on the ground that it may tend to incriminate him or her.

34    It is clear from the foregoing that the ALRC’s focus was on balancing the individual’s right or interest in not being compelled to give evidence that may tend to incriminate or expose him or her to penalty, and the public interest in having such evidence available to a court. In this regard, the report considered, in the form of different options canvassed, how best to compensate for the loss of the right to remain silent, and whether there should be retained any choice in the hands of the witness. At the centre of the ALRC’s proposal was the question of the Court’s power to compel the giving of evidence. There is nothing to indicate that the ALRC was considering whether the choices available to a party witness to control the evidence that he or she elected to give in an affidavit or in oral evidence in chief should be changed in any way.

35    What was lost in the statutory bargain that was ultimately legislated for by the enactment of s 128 was, in the confined circumstances in which that provision applied, the right to remain silent. The introduction of a means of compelling the giving of evidence that would otherwise be covered by the privilege was to be compensated for by protection from the use of that evidence in subsequent proceedings. The putative witness was, at least in a formal sense, worse off, but only to the extent that his or her evidence, which would otherwise be protected by the certificate, might be both known publicly and used in some way in the proceedings in which the evidence was given. To that extent, the privilege was wound back in a protected way, trading a private right or interest for a public interest. It was not a gain for the witness but, rather, a compensated loss.

36    By contrast, to extend that statutory bargain to a party witness in the absence of compulsion would be to bestow a gain on an individual to advance his or her private interest in litigation, protected from the adverse consequences that might otherwise arise from use of that evidence. Such an outcome would be divorced from the clear historical roots of the privilege as an immunity from compulsion that is closely related to the right to silence, as opposed to a positive right to advance a forensic desire. Even if there is any public interest to be had from such an outcome, it would be incidental and secondary to the private interest. That was not any part of the reasoning of the ALRC in recommending a limited modification of the privilege as an alternative to its complete abolition.

Relevant case law on the meaning of “objects” in s 128

37    As foreshadowed above, the proper construction of the expression “objects” in s 128 falls to be determined in the context of three key authorities, being Ferrall v Blyton [2000] FamCA 1442; 27 Fam LR 178; Cornwell v The Queen [2007] HCA 12; 231 CLR 260; and Song v Ying [2010] NSWCA 237; 79 NSWLR 442. Each is considered in turn below.

Ferrall v Blyton

38    In Ferrall, the Full Court of the Family Court of Australia dismissed an appeal by third parties from an order granting a s 128 certificate to a party witness in proceedings between a former husband and wife relating to property and spousal maintenance. Although the Full Court of the Family Court arrived at the construction of s 128 urged in this case, no express reliance is placed by the appellants on the reasoning for that outcome. The decision should nonetheless be examined as part of the relevant case law, and to the extent that it may be inconsistent with and was criticised in Song.

39    The background to the proceedings that gave rise to the appeal in Ferrall is of some importance in understanding the result. The former husband had entered into a scheme designed to place his assets beyond the reach of any Family Court order in favour of his former wife, by placing those assets beyond his ownership and control. This was achieved by a complex series of share transactions based on the premise that the Family Court did not have power to overturn share issues. The underlying assets, held by a series of private companies, were substantial. As part of the scheme, the husband gave false evidence to the Family Court denying the evidence of his former wife as to their interests in the relevant assets.

40    Before the proceedings with the wife had been resolved, the third parties involved in implementing the scheme indicated that they wanted to retain the husband’s interests and took steps to sell his assets. In circumstances of some urgency, the husband sought to give evidence to the Family Court of his true position, and thereby effectively sought to confess to perjury, under the protection of a s 128 certificate. His proposed evidence was to be adduced for the immediate purpose of an application for interlocutory ex parte injunctions restraining the third parties from disposing of the relevant assets. That course of action doubtless reflected the former husband’s acceptance of the expedience in securing the return of his assets, notwithstanding that he would be required to pay the proper share to his former wife.

41    In dealing with the question of whether or not to grant the s 128 certificate, the primary judge was faced with a dilemma. If the certificate was not granted to the husband, there was a risk, however slight, that the husband would not have given the evidence that was necessary to enable the scheme to be undone. His Honour concluded that if the relief sought was not granted, “it could cause significant, and in my opinion, grave injustice to the wife”: Ferrall at [25].

42    In the Full Court of the Family Court, the third party applicants – who had executed the scheme for the husband – challenged the grant of the s 128 certificate and the grant of injunctions. The opposing parties were aligned according to financial interest. The former husband and wife, separately represented, were the respondents to the appeal, having a shared interest in the grant of the injunctions being upheld. The Attorney-General for the Commonwealth of Australia intervened.

43    The competing arguments before the Full Court of the Family Court on the availability of a s 128 certificate for a party witness in chief may be summarised as follows:

(1)    Senior counsel for the third party applicants contended that the question of whether a certificate should be granted only arose when the witness “objects” to giving evidence, relying on the use of “objects” in s 128(1) and on the phrase “overruling the objection” in s 128(4). Because the husband sought to give the evidence, he was not objecting to doing so and, as a consequence, the terms of s 128 were not satisfied: see Ferrall at [83].

(2)    Senior counsel for the husband, also apparently speaking for the wife, contended that there was nothing to suggest that s 128 was intended to operate only in relation to cross-examination, and that it clearly extended to evidence in chief as well evidence which a witness would otherwise wish to give but for being self-incriminatory. It was submitted that all that was intended by the reference to “objects” and “objection” in s 128 was to cover the situation of witnesses giving evidence both in chief and in cross-examination. It was pointed out that the offer of a certificate did not compel a witness to give evidence, but if evidence was given, the court had to give a certificate. This was said to be inconsistent with the proposition that s 128 is only concerned with a witness who objects to giving the evidence at all and wholly consistent with application to the circumstance of a witness who wishes to give evidence subject to being given a certificate: see Ferrall at [85].

44    Senior counsel for the husband also referred to In the Marriage of Atkinson (1997) 21 Fam LR 279, a prior decision of the Full Court of the Family Court. However, Atkinson does not engage with the arguments raised in Ferrall, and appears to proceed without considering the true meaning and scope of s 128. Accordingly, Atkinson does not warrant further consideration.

45    The Full Court of the Family Court in Ferrall disposed of the points raised in relation to s 128 in three short paragraphs, which were as follows:

[88]    The trial judge considered that it was a matter of discretion whether he granted the certificate and/or whether he adopted the practice outlined by Young J in HPM Industries Pty Ltd v Graham, above. He pointed out that the certificate in question was sought only in relation to the hearing he was conducting which was simply to make injunctions preserving a situation pending the determination of other proceedings and not in relation to any other proceeding.

[89]    We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. First, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine.

[90]    In the particular circumstances of the Family Court of Australia, evidence-in-chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s 128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence-in-chief, and had objected to doing so without the issue of such a certificate.

46    It may be seen that the conclusion reached above entails a measure of circular reasoning. “Objects” and “overruling the objection” were effectively assumed to have the meaning that would be required for s 128 to apply to a party witness’ evidence in chief. No consideration was given to either the common law position that s 128 operated to modify, or to the reasons for modifying that position. As was later observed by the New South Wales Court of Appeal in Song, the Court in Ferrall had no regard to the absence of compellability of a party witness called in their own case. The conclusion reached in Ferrall begs the question of the meaning of “objects”; it does not properly answer it.

47    The reasons in Ferrall for not wanting to disturb the grant of the s 128 certificate to the husband were clear in the circumstances. It seems that, for entirely understandable reasons, a sense of justice and pragmatism prevailed. However, the absence of any proper reasoning means that decision does not afford any true support for the construction adopted. As the following analysis seeks to demonstrate, Ferrall appears to be an exemplar of the old saying that bad cases make bad law. When consideration is given to the analysis of the ALRC Report above and to the authority below, the conclusion reached in Ferrall cannot be accepted as being correct.

Cornwell v The Queen

48    As part of the determination of a Crown appeal, the High Court in Cornwell v The Queen [2007] HCA 12; 231 CLR 260 collaterally considered whether there had been a proper grant of a s 128 certificate to the appellant, Mr Cornwell. He had been put on trial twice on indictment for conspiracy to import cocaine. Obiter dicta observations were made on the question of whether s 128 is engaged if a party witness objects to questions posed in examination in chief. The facts of the case were as follows.

49    In his first trial in the Supreme Court of New South Wales, Mr Cornwell had been called to give evidence in his defence case. After giving certain evidence in response to questions asked of him by his counsel, he said that he did not want to answer a particular question on the ground that it might incriminate him. The first trial judge indicated that he would require Mr Cornwell to give the evidence, but would, over a Crown objection, grant a s 128 certificate subject to a draft certificate being furnished by his legal representatives. That draft was not forthcoming, and the certificate did not issue in that trial. Mr Cornwell gave evidence as “required” following the indication given by the first trial judge, although the High Court described it as an exaggeration to propose that the evidence was given on the faith of that indication. Ultimately, the first jury were unable to agree on a verdict.

50    In the lead up to Mr Cornwell’s second trial, this time in the District Court of New South Wales, the Crown sought to tender Mr Cornwell’s evidence given at the first trial. The second trial judge ruled that any s 128 certificate issued by the Supreme Court would apply to those proceedings. Counsel for Mr Cornwell returned to the first trial judge and succeeded in obtaining the issue of a s 128 certificate to cover his evidence in the first trial. However, the second trial judge ruled that, contrary to the first trial judge’s ruling, the protection against use/derivative use under s 128(7) did not apply by reason of s 128(8) (now s 128(10)). Section 128(8) provided that s 128 did not apply to evidence given by an accused in criminal proceedings about doing an act or having a state of mind which was a fact in issue. Accordingly, Mr Cornwell’s evidence from the first trial was admitted into evidence over objection. He did not give evidence at the second trial, was found guilty, and was subsequently convicted and sentenced.

51    Mr Cornwell succeeded in an appeal to the New South Wales Court of Criminal Appeal (NSWCCA) upon the ground that the second trial judge erred in admitting the evidence that was referred to in the s 128 certificate. The Crown then appealed to the High Court by the grant of special leave, inter alia, on the issue of the s 128 certificate being granted. It is not necessary to canvas all the issues considered and determined by the High Court in deciding by majority (4:1) that the NSWCCA had erred in numerous respects. The High Court relied upon the legislative antecedent to s 128(8) in the United Kingdom and the ALRC Report to find that s 128 could not have applied to Mr Cornwell’s evidence by virtue of s 128(8) (now s 128(10)). It followed that there was no power to “require” Mr Cornwell to give evidence under s 128(5) (now s 128(4)), nor any justification for causing him to be given a certificate under s 128(6) (now in somewhat different terms).

52    The High Court’s subsequent consideration of whether a s 128 certificate could issue for the evidence of a party witness in chief was therefore, unavoidably and expressly, obiter dicta. It was still, however, carefully considered dicta of the High Court, albeit not with the focus of this case, nor the focus of the New South Wales Court of Appeal in Song, which has been considered below.

53    The dicta of the High Court on the meaning to be given to “objects” in s 128(1) do not readily lend themselves to any useful summary. Those views were as follows (omitting footnotes):

111    This characterisation raises a question whether s 128(1), and hence s 128 as a whole, applies where a witness sets out to adduce in chief evidence revealing the commission of criminal offences other than the one charged. A criminal defendant might wish to present an alibi, the full details of which would reveal the commission of another crime. A civil defendant might wish to prove the extent of past earnings, being earnings derived from criminal conduct. This raises a question whether witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross-examination about some crime connected with the facts about which evidence is given in chief.

112    The view that the accused’s claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word “objects” in s 128(1). It also strains the word “require” in s 128(5) – for how can it be said that a defendant-witness is being “required” to give some evidence when his counsel has laid the ground for manoeuvres to ensure that the defendant-witness’ desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be “asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged”, which implies that the protection of the accused’s position in chief or in re-examination was a matter between the witness’ counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only.

113    The present point was not raised by the DPP either in the courts below or in this Court. It was raised by this Court in the course of oral argument, but was not embraced by counsel for the DPP. “Sometimes this Court will decide a question which has not been referred to or discussed by an intermediate court of appeal but that is not the course which should ordinarily be followed.” The present question could be of considerable importance in the day-to-day conduct of trials, since counsel for the accused submitted that in practice s 128 was often employed by prosecutors to elicit evidence in chief. It is not necessary finally to decide this issue, since the appeal is to be allowed on other grounds. And it is not desirable to do so in view of the absence of dispute between the parties on the question and the importance of the question.

54    The final passage above indicates that the views expressed by the High Court were intended to illuminate the issue and contribute to the debate, but not necessarily to be determinative in the absence of full and proper argument of the kind that this Court has had the benefit of.

Song v Ying

55    In Song, the New South Wales Court of Appeal dismissed an appeal from a civil trial judge in equity, who had refused an application to grant a s 128 certificate to a plaintiff for the purposes of giving particular evidence in chief. Hodgson JA (with whom Giles and Basten JJA agreed), prior to considering Ferrall and Cornwell in some detail, observed at [20]:

Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and threat of imprisonment), or because of the availability of such compulsion if he or she does not do so, there is no reason why that witness may not object to giving evidence in chief on the ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give.

56    At [22], Hodgson JA agreed with the reasoning in Ferrall to the effect that the availability of s 128 was not confined to questions in cross-examination. However, his Honour considered the reasons of the Full Court of the Family Court to be flawed because they did not “advert at all to the question of whether the witness was otherwise compellable to give the evidence objected to”. That observation is undoubtedly correct and that criticism should be adopted. His Honour then quoted Cornwell from [106] to [113], made some further contextual comments and said the following:

24    It is true that in par [112] the High Court focused on the distinction between examination in chief and cross-examination; but that was in a context of evidence being given by a party to the case, namely the accused. When a witness is a party to the case, giving evidence in chief pursuant to questions asked by the witness’ own counsel, there would rarely, if ever, be a question that the evidence in chief is given under compulsion or because of liability to compulsion. I do not understand the High Court’s reasons to be authority for restricting s 128 to cross-examination.

25    In circumstances where there is conflict between a decision of the Full Court of the Family Court and dicta (albeit tentative dicta) of the High Court, I think it is appropriate for this Court simply to reach its own view, while paying regard to relevant persuasive authority.

26    In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party’s own legal representative, is not generally giving evidence which that party is, in any real sense, compellable to give: unless called by another party and asked questions in chief by that other party, a party’s evidence in chief is given entirely at the choice of that party and is not evidence that the party is compellable to give at the instance of anyone else. It is true that a party’s legal representative can ask questions in chief without specific instructions to ask them; but if the party instructed the representative to withdraw such a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply.

27    In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party’s own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word “objects” in s 128(1) and makes sense of the word “require” in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability.

28    In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party’s own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, “objects” to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression “objects” apposite.

57    There is some additional support for the conclusions reached by Hodgson JA to be derived from the primary judge in Ying v Song [2009] NSWSC 1344. Ward J, as the Chief Judge in Equity then was, helpfully observed:

42    Under the common law, a person who, without objection, gave self-incriminating evidence was not protected from the use of that evidence in subsequent proceedings, whereas a person who, after objection, was wrongly compelled to give self-incriminating evidence was protected from the use of that evidence in subsequent proceedings. As noted by Gleeson CJ and Heydon J during argument in Cornwell, the construction for which the defendants contend in this case would effect a radical alteration of the common law in circumstances where such a change has been contemplated in none of the relevant law reform reports leading to the enactment and amendment of the uniform evidence laws …

GLEESON CJ: You may be right about that, but if you are right it means, does it not, that this legislation had a very far-reaching purpose and made a very far-reaching change to the law. It conferred upon people a right to give evidence to their own advantage of criminal conduct in which they had engaged and immunised them against the consequences of that.

MR GAME: Yes, it did that because it put all parties in the same positions as witnesses and the only stopgap was section 128(8). Yes, that is the effect of this legislation - - -

HEYDON J: There is not a word to that effect in the two Law Reform Commission reports.

43    The question is whether, properly construed (with regard, as appropriate, to underlying policy), s 128 permits a certificate to be issued in the present circumstances.

44    The construction apparently favoured by the majority in Cornwell is supported by the presence of the word “require” in s 128(4), as their Honours note at [112]. If s 128 bears the meaning for which Mr Lawson contends, and a defendant in Mr Song’s position may object to giving evidence in chief so as to fulfil s 128(1), then it must follow that, once the objection has been made, under s 128(4), the court may require the defendant to give evidence in chief. This would seem to mark a serious erosion of the right of the defendant in adversarial proceedings not to go into evidence or, at least, to determine the evidence which it wishes to adduce in chief. It seems unlikely that the legislature could have intended such a result. A construction of “objects” as referring to a circumstance where a witness protests against giving evidence in circumstances where, but for the privilege, they would be compelled to do so is also supported by the legislative progenitor of the present section, the relevant history being referred to by the majority [at [62] quoting from halfway through that paragraph].

58    The above reasoning in Song, both at first instance and on appeal, is complementary to the analysis of the ALRC Report above. It reinforces an understanding of s 128 as being directed to preserving a witness’ common law right to refuse compulsion to give evidence on the ground that it might be self-incriminatory, and providing compensation and protection to the witness for the circumstances in which that right to silence is to be overruled under the provision.

The grounds of appeal

59    The appellants did not press ground 4 in their notice of appeal. The remaining grounds of appeal (following the grant of leave) were as follows:

1.    The primary judge erred in his construction of the defined term “objects” in section 128 of the Evidence Act 1995 (Cth) because, on its proper construction, the term “objects” imports a subjective test that means only that a witness objects as a matter of fact.

2.    The primary judge erred in his construction of the defined term “objects” in section 128 of the Evidence Act 1995 (Cth) because, on its proper construction, the word “objects” does not require that the witness be otherwise compellable to give the evidence objected to.

3.    By reason of the matters in 1 and/or 2 above, the primary judge erred in concluding that the second applicant was not a witness who “objects” within the meaning of s 128(1) of the Evidence Act 1995 (Cth).

Consideration of the competing submissions

60    Given the persuasive weight of the legislative history and case law considered above, the appellants faced significant obstacles to success. In that regard, credit should be given to counsel for the appellants for her advocacy in advancing her clients’ position.

61    Counsel for the appellants relied upon textual and historical analysis to support the contention that Song was wrongly decided. It was submitted that, on its proper construction, the term “objects” in s 128 requires only a formal objection by a witness, without any requirement that the witness be compellable to give the evidence objected to. In support of this construction, it was submitted in writing that:

(1)    by reason of its definition in cl 7 of Part 2 of the Dictionary to the Evidence Act, the word “witness” in s 128 applies to all witnesses without distinction;

(2)    the syntax of s 128(1) requires that the word “objects” and the words “on the ground that” be read together as forming a compendious phrase, linking the objection to the purpose of the objection – so read, the phrase simply conveys that the witness has elected to invoke the privilege;

(3)    what is referred to in s 128 is an objection to giving particular evidence on a particular matter, rather than an objection to answering questions – the objection is the same whether the question arises viva voce in chief or in cross-examination, or in respect of affidavit evidence;

(4)    contextually, s 128 needs to be construed consistently with the operation of the common law, recalling that in civil proceedings, a party witness who objected remained silent and a court was thereby deprived of the evidence the witness could give;

(5)    the construction of s 128 urged by the appellants made consistent sense of the word “require”, referring to circumstances in which a party witness might not subjectively wish to give the evidence and gives an explanation for that decision, but the Court nonetheless compels the witness to do so;

(6)    the Court should favour a construction that best serves the purpose of the provision – in this regard, it was submitted that the paramount consideration is the Court’s interest in receiving the evidence of all witnesses, including those who subjectively do not wish to give the evidence in chief on the relevant grounds; such a construction was said to reflect the evolution of the law of evidence considered by the High Court in Cornwell;

(7)    the ALRC was concerned with maintaining a balance between the advantages and disadvantages of the privilege against self-incrimination as it had evolved at common law and in statute, with the focus shifting towards making more evidence available than was possible with the privilege remaining intact;

(8)    the rejection by the legislature of the ALRC’s optional certificate model meant that primacy was given to the interests of justice by enabling a court to require the witness to give the relevant evidence – those interests would not be advanced if the Court were to be deprived of evidence merely because the questions adducing that evidence were asked by the witness’ own representative;

(9)    regard should be had to changes made to s 128 following subsequent review by the ALRC and the dispensing with the distinction between the privilege against self-incrimination and penalty privilege;

(10)    the deliberation on enactment of the section did not distinguish, save as to what became the current s 128(10), between party-witnesses and non-party witnesses; and

(11)    upholding Song would produce absurd results, such as a court being deprived of relevant evidence – it was suggested, by way of example, that Mr MacDonald could circumvent the restrictions on s 128 by being called by another party in the same interest, or by the Commissioner, by whom he was also compellable.

62    The above arguments are a valiant attempt to cast doubt on the meaning given to s 128 by Song. However, they cannot prevail against the reasoning in that case, both at first instance and on appeal, aided by the observations of the High Court in Cornwell. As observed in Cornwell, the construction advanced by the appellants strains the word “objects” in s 128(1). It is not to the point that s 128 would, in theory, be capable of applying to a witness who happens to be a party. An objection to giving evidence is, in history and context, directed to resisting compulsion, and is not merely a means of electing for the protection of a certificate to advance a forensic desire. This much is reflected in the ordinary meaning of “objects” as used in s 128(1).

63    As demonstrated by careful consideration of the ALRC Report, the certification procedure was not enacted simply as a way to maximise the available evidence to a court by narrowing the operation of the privilege against self-incrimination. Rather, it reflected a balance struck between the public interest in evidence being available to the Court, and the individual right to refuse to answer any question, or produce any document, if the production would tend to incriminate that person. To that end, the s 128 procedure offered a measure of protection for the circumstances in which the privilege was to be overridden by requiring a witness to give evidence that may tend to incriminate him or her. The need for compulsion as part of that equation is inescapable.

64    The submissions for the Commissioner essentially defended Song, relied upon Cornwell and refuted Ferrall. Those arguments were substantially correct and the Commissioner’s position is accepted. It is unnecessary to address separately the Commissioner’s notice of contention.

65    The argument that Song was wrongly decided cannot be sustained. To the contrary, that decision was plainly correct and should be followed. Accordingly, there was no error in the primary judge’s decision.

Conclusion

66    The appeal must be dismissed. It was common ground that there should not be any orders as to costs.

Associate:

Dated:    30 January 2018