Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4

The appeal was dismissed because s 128 of the Evidence Act 1995 (Cth), understood against the common law privilege and its legislative history, concerns resistance to compulsion to give self-incriminating or penalty-exposing evidence. A party witness answering questions in chief from his own counsel, who is not otherwise legally compellable to give that evidence, does not "object" within s 128(1) merely by stating that he will not give the evidence without a certificate. Song v Ying was correctly decided, Ferrall v Blyton was not accepted, and the primary judge did not err in refusing Mr MacDonald a s 128 certificate.

Jurisdiction
Australia
Judgment Date
30 January 2018
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Refusal of a Certificate Under S 128 of the Evidence Act 1995 (cth) in Civil Penalty Proceedings / Full Court Appeal From Australian Building and Construction Commissioner V Construction, Forestry, Mining and Energy Union [2017] FCA 550
Outcome
Leave to appeal granted; appeal dismissed; no order as to costs.
Legal Topics
['privilege Against Self Incrimination' 'privilege Against Self Exposure to Penalties' 'section 128 Certificate' 'compellability of Party Witness' 'evidence in Chief' 'fair Work Act Civil Remedy Provisions']
['evidence' 'employment and Industrial Relations' 'civil Penalties'] ['privilege Against Self Incrimination' 'privilege Against Self Exposure to Penalties' 'section 128 Certificate' 'compellability of Party Witness' 'evidence in Chief' 'fair Work Act Civil Remedy Provisions']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Refusal of a Certificate Under S 128 of the Evidence Act 1995 (cth) in Civil Penalty Proceedings / Full Court Appeal From Australian Building and Construction Commissioner V Construction, Forestry, Mining and Energy Union [2017] FCA 550

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from orders refusing a s 128 certificate.' 'Whether a party witness giving evidence in chief through his own counsel who is not legally compellable to give the evidence can be taken to have objected to giving particular evidence within s 128(1) of the Evidence Act 1995 (Cth).' 'Whether Song v Ying [2010] NSWCA 237; 79 NSWLR 442 was plainly wrong and should not be followed.' 'Whether the primary judge erred in concluding that Mr MacDonald was not entitled to a s 128 certificate.']

Ratio Decidendi

The appeal was dismissed because s 128 of the Evidence Act 1995 (Cth), understood against the common law privilege and its legislative history, concerns resistance to compulsion to give self-incriminating or penalty-exposing evidence. A party witness answering questions in chief from his own counsel, who is not otherwise legally compellable to give that evidence, does not "object" within s 128(1) merely by stating that he will not give the evidence without a certificate. Song v Ying was correctly decided, Ferrall v Blyton was not accepted, and the primary judge did not err in refusing Mr MacDonald a s 128 certificate.

Court Disposition

Leave to appeal granted; appeal dismissed; no order as to costs.

Orders

  • ['Leave to appeal be granted in respect of proposed grounds of appeal 1 to 3 in the draft notice of appeal filed on 5 June 2017.' 'Grounds 1 to 3 in the draft notice of appeal filed on 5 June 2017 be treated as a notice of appeal.' 'The appeal be dismissed.' 'There be no order as to costs.']