Evidence Act 2011

In this section:

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—

has committed an offence against or arising under an Australian law or a law of a foreign country; or

is liable to a civil penalty;

disclose the information in relation to which no objection is taken; and

prepare an affidavit containing the information in relation to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope; and

file and serve on each other party a separate affidavit setting out the basis of the objection.

The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.

The court must decide whether or not there are reasonable grounds for the objection.

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.

If the court is satisfied that—

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

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

the interests of justice require the information to be disclosed;

If all or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must give the relevant person a certificate in relation to the information mentioned in subsection (6) (a).

In any proceeding in an ACT court or before any entity authorised by a territory law, or by consent of parties, to hear, receive and examine evidence—

evidence of information disclosed by a relevant person in relation to which a certificate has been given under this section; and

any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information;

This subsection differs from the Commonwealth Act, s 128A (8). The Commonwealth provision refers to an ‘Australian court’ instead of an ‘ACT court’.

However, subsection (8) does not apply to a criminal proceeding in relation to the falsity of the evidence.

Subsection (8) does not prevent the use against the relevant person of any information disclosed by a document—

that is an annexure or exhibit to a privilege affidavit prepared by the person in response to a disclosure order; and

that was in existence before the order was made.

Subsection (8) 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.

If a person has been given a certificate under a prescribed State or Territory provision in relation to information mentioned in subsection (6) (a), the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

For subsection (12), a prescribed State or Territory provision is a provision of a State or Territory law declared by regulation to be a prescribed State or Territory provision for that subsection.

Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a Commonwealth law or for the recovery of a civil penalty under a Commonwealth law.

The Commonwealth Act does not contain provisions corresponding to s 128A (12) to (14).