Australian Full Court rules on self-incrimination CFMEU v ABCC

Overview of section 128

Section 128 of the Evidence Act 1995 (Cth) contains a modified version of the common law privilege against self-incrimination. Under section 128, a witness in court proceedings may object to giving evidence on the grounds that the evidence may tend to prove that the witness has either committed an offence under an Australian or foreign law, or is liable to a civil penalty. If the court determines that there are reasonable grounds for the objection, the Court is obliged to give the witness a certificate which prevents the evidence from being used against the witness in any proceedings in an Australian court.

Several authorities have considered whether an "objection" for the purpose of section 128 can properly be made by a witness who sets out to adduce self-incriminating evidence in chief, as opposed to a witness who gives the evidence under cross-examination.

In Song v Ying [2010] NSWCA 237; 79 NSWLR 442, Hodgson JA (Giles JA and Basten JA agreeing) saw no reason why a witness who gives evidence in chief could not object to giving self-incriminating evidence under section 128, provided that the witness was actually compelled to do so. For Hodgson JA, compulsion was the key; where a witness was not compelled to give the evidence, the witness could not make an objection to giving that evidence under section 128. Following this line of reasoning further, Hodgson JA held that a party giving evidence in chief, in response to questions from that party's own legal representative, is not under any compulsion to give that evidence and therefore cannot "object" to giving self-incriminating evidence under section 128. In all other cases, witnesses are compellable to give evidence, whether in chief or under cross-examination, and can avail themselves of the protection afforded by section 128.

Background in CFMEU v ABCC

The current case concerned civil penalty proceedings which were brought against the CFMEU and Drew McDonald, an official of the CFMEU, by the Australian Building and Construction Commissioner in relation to alleged contraventions of certain provisions of the Fair Work Act.  In particular, Mr McDonald was said to have blockaded a construction site by parking his vehicle at the site entrance. 

In the course of giving evidence in chief in the proceedings, Mr McDonald indicated that he was concerned that his evidence might incriminate him by proving that he had contravened other provisions of the Fair Work Act. Mr McDonald objected to providing the evidence and applied for a certificate under section 128 of the Evidence Act in respect of that evidence. 

Relying on Song, the primary judge ultimately refused to grant the certificate under section 128. As Mr McDonald was a party to the proceedings and his evidence was being given in chief, the Judge found he was not compelled to give that evidence. Accordingly, section 128 did not apply.

On appeal, Mr McDonald contended that the decision in Song was wrong to the extent that it held an element of compulsion was a necessary part of section 128. He contended that the act of him formally raising an objection to giving evidence was, by itself, sufficient to trigger the operation of section 128.

The Decision

Bromwich J (with whom Kenny and Tracey JJ agreed) held that despite a "valiant attempt" by Mr McDonald and his counsel to cast doubt on the meaning given to s128 by Song, their arguments could not prevail against the reasoning in that decision. Taking into account the history and rationale for the privilege, both at common law and in section 128 of the Act, and the reasoning in Song, his Honour held that compulsion was an essential part of section 128.

The key takeaway from this decision is that a party to proceedings who is also a witness to those proceedings, giving evidence in chief in response to questions from that party's own legal representative, cannot object to giving evidence under section 128 of the Act on the basis that it may be self-incriminating. For representatives, this may require some careful forethought in circumstances where acting for or on behalf of individuals who are named parties; ensure your client is not at any risk of self-incrimination in respect of other breaches or allegations before having them attest evidence.

Of course, apart from the above situation, a witness may object to giving self-incriminating evidence and avail themselves of the protection afforded by section 128.