Australian Workers' Union v Registered Organisations Commissioner (No 7) [2019] FCA 195

Australian Workers' Union v Registered Organisations Commissioner (No 7) [2019] FCA 195

The Court held that the evidence sought from Mr Davies may be probative and important to significant issues in the proceeding, including whether Mr Enright acted for an improper purpose and whether representatives of the Registered Organisations Commissioner assisted or informed the Minister's office about the search warrants. The evidence already given by Mr De Garis and the possible tender of Mr Davies' witness statement were not acceptable substitutes for Mr Davies' oral evidence, particularly because the source and circumstances of the information could be contentious and credibility issues could arise. Although compelling potentially self-incriminating evidence is a serious...

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Evidence Ruling in Federal Court Proceeding Concerning Privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (cth) / Determination Whether Subpoenaed Witness Mr Davies Should Be Required Under S 128(4) to Give Evidence Despite Objection
Outcome
Mr Davies was required to give the evidence the subject of his objection.
Legal Topics
['evidence Act 1995 (cth) S 128 Certificate' 'interests of Justice' 'availability of Other Evidence' 'contempt of Parliament' 'meaning of Australian Court' 'search Warrants and Alleged Media Notification']
['evidence' 'privilege Against Self Incrimination' 'parliamentary Privilege' 'employment and Industrial Relations'] ['evidence Act 1995 (cth) S 128 Certificate' 'interests of Justice' 'availability of Other Evidence' 'contempt of Parliament' 'meaning of Australian Court' 'search Warrants and Alleged Media Notification']

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Procedural Posture

Evidence Ruling in Federal Court Proceeding Concerning Privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (cth) / Determination Whether Subpoenaed Witness Mr Davies Should Be Required Under S 128(4) to Give Evidence Despite Objection

Legal Issues

  1. 1 ['Whether Mr Davies had reasonable grounds to object to giving evidence on the basis that it may tend to incriminate him.' 'Whether the interests of justice required Mr Davies to give the evidence under s 128(4) of the Evidence Act 1995 (Cth).' "Whether the evidence sought from Mr Davies was relevant and important to the AWU's case concerning alleged improper purpose." "Whether other available evidence, including evidence from Mr De Garis or Mr Davies' witness statement, was an acceptable alternative to compelling Mr Davies' evidence." 'Whether a s 128 certificate would protect Mr Davies in a proceeding before a House or Committee of Parliament for contempt of Parliament.' 'Whether s 10 of the Evidence Act 1995 (Cth) affected the efficacy of a s 128 certificate in relation to parliamentary proceedings.']

Ratio Decidendi

The Court held that the evidence sought from Mr Davies may be probative and important to significant issues in the proceeding, including whether Mr Enright acted for an improper purpose and whether representatives of the Registered Organisations Commissioner assisted or informed the Minister's office about the search warrants. The evidence already given by Mr De Garis and the possible tender of Mr Davies' witness statement were not acceptable substitutes for Mr Davies' oral evidence, particularly because the source and circumstances of the information could be contentious and credibility issues could arise. Although compelling potentially self-incriminating evidence is a serious...

Court Disposition

Mr Davies was required to give the evidence the subject of his objection.

Orders

  • ["Mr Davies give evidence on matters relating to what knowledge, if any, he had of the search warrants executed on the premises of the Australian Workers' Union prior to their execution and any associated knowledge or involvement in any notification to the media of their pending execution." 'Mr Davies give evidence...