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• Introduction
• Sections 128 And 187
• Statutory Certification And The Common Law Privilege
• Voluntary Disclosure In Return For Immunity
• Conclusions

15 The Australian Approach

INTRODUCTION

406 FROM THE DISCUSSION in the preceding chapters, it is apparent that the privilege is applied haphazardly in various pieces of legislation. This chapter looks at a partial alternative to New Zealand’s piecemeal approach and to the total abrogation of the privilege, namely, legislatively regulated disclosure in court proceedings in return for a use and use fruits immunity certificate. Several of the observations made in this chapter have previously been made elsewhere in this paper. However, for completeness, the main features of the Australian approach, and its relationship to proposals made throughout the paper, are discussed.

407 Section 128 of the Evidence Act 1995 (Aust) preserves the common law privilege while providing a process by which witnesses who make self-incriminating disclosures in federal court proceedings are, in return, given certificates of immunity from use and derivative use of the disclosures in other court proceedings.[81] The certificate of immunity extends to the use of the evidence as a prior inconsistent statement, but does not provide protection from prosecution for perjury.

408 Section 187 of the Australian Act removes the common law privilege for bodies corporate. The provision extends beyond the context of court proceedings. This is in line with the Commission’s proposal in chapter 9 that the privilege for bodies corporate should be removed by legislation.

SECTIONS 128 AND 187

409 Sections 128 and 187 of the Evidence Act are set out below:

128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may 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) 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.

(3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.
(4) 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.

(5) 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.
(6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.
(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) 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.

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

187 Abolition of the privilege against self-incrimination for bodies corporate
(1) This section applies if, under a law of the Commonwealth or the Australian Capital Territory or in a proceeding in a federal court or an ACT court, a body corporate is required to:

(a) answer a question or give information; or
(b) produce a document or any other thing; or
(c) do any other act whatever.

(2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty.

STATUTORY CERTIFICATION AND THE COMMON LAW PRIVILEGE

410 Because the Commission’s proposed Evidence Code will codify the law of evidence, it is not contemplated that the common law privilege against self-incrimination would co-exist with the provisions on the privilege contained in the Code. Rather, the Code provisions would replace the common law privilege.

411 The Evidence Act (Aust) is not a codification of the law of evidence, although the Act displaces a great deal of the law of evidence applying in federal and ACT courts before its enactment. As already noted, s 128 does not replace the common law privilege but co-exists with it. Several consequences flow from this, including the following:

• Claims of privilege arising outside of federal court proceedings are not referred to in the provision, and would continue to be governed by the case law on the common law privilege: see the Commission’s proposals in chapters 12 and 14 concerning statutory powers to compel disclosure of self-incriminating information in contexts other than judicial proceedings and the Commission’s proposals in chapter 12, namely, that the privilege should apply unless explicitly removed or limited.
• The provision does not remove the privileges against liability to forfeiture and ecclesiastical censure, although the certification procedure does not extend to them: see the Commission’s proposals in chapter 7 concerning the need for the express removal of those privileges.
• Although the certification process only applies to claims to the penalty privilege in relation to specific evidence, there is nothing to prevent claims based on the common law penalty privilege for all evidence sought in proceedings aimed at imposing a civil penalty: see the Commission’s proposals in chapter 7 concerning the prevention of opportunities to claim a blanket penalty privilege for all the evidence sought.
• No distinction is made between oral statements, documents, real evidence, and any non-verbal intentional assertion. Section 128(1) simply says that the section applies if the witness gives particular evidence: see the Commission’s proposals in chapter 8 concerning the preclusion of claims of privilege for pre-existing documents and real evidence.
• Although s 128(1) limits the certification process to witnesses who object to giving evidence on the ground that they will personally be incriminated, there is nothing to prevent claims based on the common law penalty privilege for incrimination of a witness’s spouse: see the Commission’s proposals in chapter 10 concerning the preclusion of claims of privilege based on incrimination of the claimant’s spouse.

VOLUNTARY DISCLOSURE IN RETURN FOR IMMUNITY

412 The courts’ powers under s 128 apply when the witness objects on reasonable grounds to the giving of particular evidence because it may tend to prove he or she committed an offence under any jurisdiction or is liable to a civil penalty. Under s 132, if it appears to the court that a witness has grounds for making an objection, the court must satisfy itself that the witness is aware of the relevant provision.

413 The Commission proposes that a similar provision relating to the privilege should be included in the Evidence Code.

414 Under s 128, the court can overrule the witness’s claim in any of three situations:

• the claim is not based on reasonable grounds – in which case, the witness must give the evidence required (subs (2));
• the claim has been overruled, but after the evidence has been given the court finds that there were reasonable grounds for the objection – in which case, under subs (4), the court is required to give the witness a certificate of immunity; and
• the claim is legitimate, and although the witness chooses the voluntary disclosure option, the court requires the witness to give evidence and issues a certificate of immunity, on the basis that requiring him or her to give the evidence is in the interests of justice (subs (5)).

415 A claim of privilege by a defendant in criminal proceedings, which relates to evidence about his or her conduct or state of mind relevant to a fact in issue in those proceedings, will not be upheld (subs (8)).[82] In New Zealand, such claims of privilege are in any case precluded by s 5(4)(a) Evidence Act 1908; although a defendant in criminal proceedings is not prevented from claiming the privilege for matters which are not the subject of those immediate proceedings. Section 5(4)(a) should be carried over into the Evidence Code: see s 2(4)(c) of the draft provisions following this chapter.

416 In the last of the three situations outlined above, the court’s discretion to overrule a legitimate claim of privilege does not apply to claims based on extraterritorial liability. This is because an Australian court cannot guarantee that any certificate of immunity issued by it will be respected in foreign jurisdictions. In chapter 11, the Commission proposed that legislation should preclude privilege claims based on extraterritorial jurisdiction.

417 The phrase “interests of justice” in subs (5) is not defined. The absence of legislative guidance for the courts in exercising their discretion to overrule the privilege in the interests of justice was criticised in the Senate debates on the Bill.[83] Mr Justice Smith said:

So, if this path is to be gone down, then the issue has to be faced, I say, of what criteria are to be applied in exercising this discretion. We are at pains when we use discretions as a solution to set out the matters the judge should consider. Unless you do that – to use an unkind expression – this approach is, with respect, a cop-out. It sounds good; it sounds terrific; it is being done in the interests of justice; who can complain about that? But you will get an enormous disparity of application and you will get injustices done. One way to reduce that is to try to set out the criteria. (98)

418 The commentary accompanying s 128 gives an indication of the factors the courts will take into account in assessing what is in the interests of justice, but they are not binding on courts in exercising their discretion.[84] These are:

• the importance of the evidence in the proceeding;
• in a criminal proceeding, whether it is the prosecutor or a defendant who seeks to adduce the evidence;
• the nature and gravity of the offence or cause of action alleged in the proceeding;
• the nature of the offence or liability to penalty in respect of which the witness may incriminate himself or herself and the likelihood of any proceeding being brought in respect of that offence or to recover a penalty; and
• the means available to prevent publication of the evidence.

419 The factors referred to in the preceding paragraph give the courts flexibility. However, they are not as helpful as they could be. There is, for example, no indication of whether a prosecution for a serious offence will mean that a claim to the privilege is more or less likely to be upheld. Some of the factors are potentially in conflict. In many cases where, for example, the likely action against the witness is serious, the evidence might also be very important in the immediate proceedings. It is unclear how each factor should be weighted and which of the conflicting interests (disclosure or the privilege) should be given priority.

420 A more fundamental objection to the court’s discretion to overrule legitimate claims of privilege in the interests of justice is that the privilege is so fundamental a right that, once it applies in a given situation, it should not be able to be overridden by a court. The privilege is referred to in the New Zealand Bill of Rights Act 1990, and any derogations from it should satisfy the “reasonable limits” test in s 5 and be “prescribed by law”.

421 The Australian approach is a compromise between overruling the privilege as a result of balancing competing interests and upholding the privilege, by requiring the courts to give a certificate when a legitimate claim is overruled. Nevertheless, as has been observed throughout this paper (ie, in chapters 2, 12 and 14), even a use and use fruits immunity is not as complete a guarantee of protection from liability as non-disclosure.

422 The Commission acknowledges the benefits of disclosure in return for a certificate of immunity, in that a certificate may encourage some witnesses to give evidence who would otherwise remain silent. However, the legislature should determine in which circumstances competing public interests should preclude or restrict the application of the privilege: see chapters 12 and 13 for a discussion of what those interests are and how they should be measured against the interests the privilege protects.

423 Therefore, the Commission proposes that there should be a provision in the Evidence Code giving the courts a discretion to offer a witness who legitimately claims the privilege a certificate of immunity from use and derivative use in return for the disclosures sought, along the lines of that envisaged by subs (7) of the Australian Act. If the witness refuses, the courts should uphold the witness’s claim and should not require him or her to make disclosures. This proposal is of course subject to any applicable legislation which removes or restricts the privilege in a particular context. In addition, the proposal does not amount to a suggestion that the privilege should be removed or limited in contexts outside of proceedings. The Evidence Code provision embodying the privilege in a variety of contexts would co-exist with the court-based certification procedure: see ss 2 and 4(1) in the draft provisions following this chapter, which reflect this intention.

424 It would be important to ensure in each case that the witness is made fully aware of the implications of making disclosure. This should be provided for in the certification process, and may go beyond the requirements of s 128(2) of the Australian provisions.

CONCLUSIONS

• Because the Commission’s proposed Evidence Code will codify the law of evidence, the common law privilege should not co-exist with provisions on the privilege in the Code. Rather, the Code provisions would replace the common law privilege.
• Section 128 of the Evidence Act 1995 (Aust) co-exists with the common law privilege and, as a result, the provision does not preclude claims of privilege in some areas which the Commission has proposed closing off (eg, claims of privilege for liability to forfeiture or ecclesiastical censure, real evidence etc).
• The primary advantage of voluntary disclosure in return for a certificate of immunity is that of encouraging witnesses to testify. The Commission therefore proposes that the Evidence Code should contain a provision requiring the courts to give witnesses the opportunity to make voluntary self-incriminating disclosures in return for a certificate of immunity.
• There should be an obligation in the Code imposed on the courts to inform witnesses of the privilege, the certification process, and the implications of disclosure when self-incrimination issues arise.
• The certificate of immunity should be in a prescribed form and should include a use and use fruits immunity, similar to that envisaged by s 128(7) of the Australian Act.
• New Zealand should not follow the Australian approach in relation to authorising the courts to overrule legitimate claims of privilege in the interests of justice.
• The Australian Act does not provide criteria for determining when it will be in the interests of justice to overrule the privilege in a particular case.
• The guidelines contained in the commentary to the Australian Act, regarding the interests of justice discretion, are open to subjective and inconsistent application.
• Once a right as fundamental as the privilege applies in any given situation, it should not be weakened or restricted by the courts in taking into account competing interests.
• It is for the legislature to determine in what circumstances competing public interests should preclude or restrict the privilege’s application in particular contexts: see chapters 12 and 13 for a discussion of what those interests are and how they should be measured against the interests the privilege protects.
• When a witness legitimately claims the privilege in court proceedings, and refuses to make self-incriminating disclosures in return for a certificate of immunity, the court should respect the claim of privilege.