Protection against self-incrimination in relation to interlocutory matters
87 Protection against self-incrimination in relation to interlocutory matters
In this section—
civil penalty has the same meaning as it has in the Evidence Act 1995.
conduct includes both act and omission.
culpable conduct means conduct that, under—
the laws of New South Wales, or
the laws of any other State or Territory, or
the laws of the Commonwealth, or
the laws of a foreign country,
constitutes an offence or renders a person liable to a civil penalty.
order for production means an interlocutory order requiring a person (other than a body corporate) to provide evidence to the court or to a party to a proceeding before the court.
provide evidence means—
to provide an answer to a question or to produce a document or thing, or
to swear an affidavit, or
to file and serve an affidavit or a witness statement, or
to permit possession to be taken of a document or thing.
This section applies in circumstances in which—
an application is made for, or the court makes, an order for production against a person, and
the person objects to the making of such an order, or applies for the revocation of such an order, on the ground that the evidence required by the order may tend to prove that the person has engaged in culpable conduct.
This section does not apply in circumstances in which section 128A of the Evidence Act 1995 applies.
If the court finds that there are reasonable grounds for the objection or application referred to in subsection (2) (b), the court is to inform the person, or the person’s legal representative—
that the person need not provide the evidence, and
that, if the person provides the evidence, the court will give a certificate under this section, and
of the effect of such a certificate.
If the person informs the court that he or she will provide the evidence, the court is to cause the person to be given a certificate under this section in respect of the evidence.
The court is also to cause a person to be given a certificate under this section if the court overrules an objection to the making of an order for production, or refuses an application for the revocation of such an order, but, after the evidence is provided, the court finds that there were reasonable grounds for the objection or application.
Despite anything in this section, the court may make an order for production if it is satisfied of the following—
that the evidence required by the order may tend to prove that the person has engaged in culpable conduct,
that the culpable conduct does not comprise conduct that, under—
the laws of any State or Territory (other than New South Wales), or
the laws of the Commonwealth, or
the laws of a foreign country,
constitutes an offence or renders a person liable to a civil penalty,
that the interests of justice require that the person provide the evidence.
If the court makes an order for production under subsection (6), it is to cause the person to be given a certificate under this section in respect of the evidence required by the order.
In any proceedings—
evidence provided by a person in respect of which a certificate under this section has been given, and
evidence of any information, document or thing obtained as a direct or indirect consequence of the person having provided such evidence,
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
If a question arises under this section relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.
This Act’s bill:Explanatory memorandumSecond reading speech
The statute text is free to read above. View subscription options to unlock the case-law research tools for each provision.