Failure of witnesses to attend and answer questions
23 Failure of witnesses to attend and answer questions
A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner must not—
fail to attend as required by the summons; or
fail to attend from day to day unless excused, or released from further attendance, by the examiner.
A person appearing as a witness at an examination before an examiner must not—
when required pursuant to section 19 either to take an oath or make an affirmation, refuse or fail to comply with the requirement; or
refuse or fail to answer a question that he or she is required to answer by the examiner; or
refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
Where—
a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and
the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner—
the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she must, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.
Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if—
a person appearing as a witness at an examination before an examiner—
answers a question that he or she is required to answer by the examiner; or
produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
in the case of the production of a document that is, or forms part of, a record of an existing or past business, the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and
before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
The answer, or the document or thing, is not admissible in evidence against the person in—
a criminal proceeding; or
a proceeding for the imposition of a penalty—
other than—
confiscation proceedings; or
a proceeding in respect of—
in the case of an answer, the falsity of the answer; or
in the case of the production of a document, the falsity of any statement contained in the document.
A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence punishable by a fine not exceeding $22 000 or imprisonment for a period not exceeding 5 years.
Subsection (3) does not affect the law relating to legal professional privilege.
This Act’s bill:Second reading speech
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