Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550

MacDonald was not a witness who relevantly "objects" to giving particular evidence within s 128(1) because, although he was motivated to give evidence to avoid the operation of s 361(1) of the Fair Work Act 2009 (Cth) and an adverse judgment, he was not compelled by law to give evidence in chief in response to questions from his own counsel. The Court followed Song v Ying and was not persuaded that it was plainly wrong. Section 128 was therefore not engaged and no certificate could issue.

Jurisdiction
Australia
Judgment Date
22 May 2017
Procedural Posture
Civil Penalty Proceeding Alleging Contraventions of the Fair Work Act 2009 (cth) / Interlocutory Application by the Second Respondent During Examination in Chief for a Certificate Under S 128 of the Evidence Act 1995 (cth)
Outcome
Application refused.
Legal Topics
['privilege Against Self Exposure to Penalties' 'section 128 Certificate' 'compellability of a Party Giving Evidence in Chief' 'reverse Onus Under S 361(1) of the Fair Work Act 2009 (cth)']
['evidence' 'employment and Industrial Relations' 'civil Penalties'] ['privilege Against Self Exposure to Penalties' 'section 128 Certificate' 'compellability of a Party Giving Evidence in Chief' 'reverse Onus Under S 361(1) of the Fair Work Act 2009 (cth)']

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Procedural Posture

Civil Penalty Proceeding Alleging Contraventions of the Fair Work Act 2009 (cth) / Interlocutory Application by the Second Respondent During Examination in Chief for a Certificate Under S 128 of the Evidence Act 1995 (cth)

Legal Issues

  1. 1 ['Whether s 128 of the Evidence Act 1995 (Cth) was engaged where the second respondent, under no legal compulsion to give evidence, objected to giving evidence in chief by his own counsel unless protected by a certificate.' 'Whether the operation of the presumption in s 361(1) of the Fair Work Act 2009 (Cth) amounted to relevant compellability for the purposes of s 128.' 'Whether Song v Ying (2010) 79 NSWLR 442 was plainly wrong and should not be followed.']

Ratio Decidendi

MacDonald was not a witness who relevantly "objects" to giving particular evidence within s 128(1) because, although he was motivated to give evidence to avoid the operation of s 361(1) of the Fair Work Act 2009 (Cth) and an adverse judgment, he was not compelled by law to give evidence in chief in response to questions from his own counsel. The Court followed Song v Ying and was not persuaded that it was plainly wrong. Section 128 was therefore not engaged and no certificate could issue.

Court Disposition

Application refused.

Orders

  • ['The application of the second respondent that a certificate issue pursuant to s 128 of the Evidence Act 1995 (Cth) is refused.']