Document ID: chunk:federal_register_of_legislation:C2011C00176:clause:1_128:p1
Version: federal_register_of_legislation:C2011C00176
Segment Type: clause
Provision Reference: sch 1 cl 128 (pt 1/3)
Character Range: 31359–33963

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) If the court determines that there are reasonable grounds for the objection, the court 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.

Note: Subsection 128(7) differs from subsection 128(7) of the NSW Act. The NSW provision refers to a NSW Court instead of an Australian Court.

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