Document ID: chunk:federal_register_of_legislation:C2021C00472:section:128:p2
Version: federal_register_of_legislation:C2021C00472
Segment Type: section
Provision Reference: s 128 (pt 2/2)
Character Range: 137090–139250

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).