Document ID: chunk:federal_register_of_legislation:C2021C00472:section:128a:p1
Version: federal_register_of_legislation:C2021C00472
Segment Type: section
Provision Reference: s 128A (pt 1/2)
Character Range: 139252–141858

128A  Privilege in respect of self‑incrimination—exception for certain orders etc
 (1) In this section:
disclosure order means an order made by a federal court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order, but does not include an order made by a court under the Proceeds of Crime Act 2002.
relevant person means a person to whom a disclosure order is directed.
 (2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person:
 (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;
the person must:
 (c) disclose so much of the information required to be disclosed to which no objection is taken; and
 (d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope; and
 (e) file and serve on each other party a separate affidavit setting out the basis of the objection.
 (3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.
 (4) The court must determine whether or not there are reasonable grounds for the objection.
 (5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person.
 (6) If the court is satisfied that:
 (a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and
 (b) the information does not tend to prove that the relevant person 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 the information to be disclosed;
the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.
 (7) If the whole or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must cause the relevant person to be given a certificate in respect of the information as referred to in paragraph (6)(a).
 (8) In any proceeding in