(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) Subject to subsection ( 4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and 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.
(8) Subsection ( 7) 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 concerned.
(9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection ( 7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.
(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:
(a) did an act the doing of which is a fact in issue; or
(b) had a state of mind the existence of which is a fact in issue.
(11) A reference in this section to doing an act includes a reference to failing to act.
(12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.
(13) The following are prescribed State or Territory provisions for the purposes of subsection ( 12):
(a) section 128 of the Evidence Act 1995 of New South Wales ;
(b) a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection ( 12).
(14) Subsection ( 12) applies to:
(a) a proceeding in relation to which this Act applies because of section 4; and
(b) a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph ( a).
Note 1: Bodies corporate cannot claim this privilege: see section 187.
Note 2: Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.
Note 4: Subsections ( 8) and (9) were inserted as a response to
the decision of the High Court of Australia in Cornwell v The Queen [2007] HCA
12 (22 March 2007).