BROMBERG J:
1 Mr David De Garis was at all relevant times the senior media adviser to Senator the Honourable Michaelia Cash, Minister for Small and Family Business, Skills and Vocational Education ("the Minister"). Mr De Garis is in the process of giving evidence-in-chief, having been called under a subpoena issued at the instance of the applicant, the Australian Workers' Union ("the AWU"). Senior counsel for the AWU asked Mr De Garis when he first became aware of the execution of certain search warrants at the premises of the AWU on 24 October 2017. Mr De Garis answered that he first became aware on 24 October 2017 at some time after midday and before 4 pm. He was then asked:
Who made you aware?
2 Mr De Garis declined to answer, relying on the privilege against self-incrimination. It is in that context that the question presently before me arises. That question is whether, pursuant to s 128(4) of the Evidence Act 1995 (Cth) ("Evidence Act"), I should require Mr De Garis to give the evidence he has objected to giving. Section 128 of the Evidence Act relevantly provides:
Privilege in respect of self-incrimination in other proceedings
(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.
…
3 I have already ruled that, by declining to answer, Mr De Garis "objects to giving particular evidence" within the meaning of s 128(1) of the Evidence Act and that, consequently, s 128 has application.
4 I have also already determined that, in the application of s 128(2), Mr De Garis has reasonable grounds for the objection. The basis for that finding was that, in the proceeding, the AWU seeks to prove that, prior to their execution, Mr De Garis informed journalists of the pending execution of the search warrants and that, at the relevant time, s 70(1) of the Crimes Act 1914 (Cth) provided as follows:
A person who, being a Commonwealth officer, publishes or communicates except to some person to whom he or she is authorised to publish or communicate it, any factor document which comes to his or her knowledge or into his or her possession by virtue of being a Commonwealth officer and which it is his or her duty not to disclose commits an offence.
5 The penalty for breach of s 70(1) is imprisonment for two years.
6 Having informed Mr De Garis of the matters addressed by s 128(3), and given Mr De Garis an opportunity to consult with his counsel, Mr De Garis informed the Court that he remained unwilling to answer the question put to him. Counsel for Mr De Garis submitted that I should not, pursuant to s 128(4), require Mr De Garis to give evidence in answer to the question Mr De Garis has declined to answer. The only relevant and applicable consideration under s 128(4) to the circumstances at hand is that dealt with in sub-para (b) - namely, whether the Court is satisfied that "the interests of justice require" that Mr De Garis give the evidence.
7 In support of his submission that I should be satisfied that the interests of justice do not so require, counsel for Mr De Garis submitted that the evidence that Mr De Garis could give was not central to the issues in the proceeding. In that respect, I apprehend that counsel sought to persuade me that the importance of the evidence in the proceeding is a relevant consideration on the question of whether the Court should be satisfied that the interests of justice require that the evidence be given.
8 Section 128(4)(b) provides a "broadly worded and undefined discretionary power" which is to be exercised by reference to the scope and purpose and real object of s 128: see analogously Rich v the Attorney-General of New South Wales [2013] NSWCA 419 at [19]-[20] (Leeming JA, with whom Bathurst CJ and Beazley P agreed). I accept, as has been accepted in a number of cases, including Gideon v R [2013] NSWCCA 257 at [289]-[290] (Bathurst CJ), that the significance or importance of the evidence that may be required to be given is a relevant consideration.
9 To consider the potential significance or importance of the evidence that may be given in response to the question asked of Mr De Garis, I need to turn to the AWU's case and other matters.
10 The AWU seeks to impugn the validity of an investigation commenced by the first respondent, the Registered Organisations Commissioner ("ROC") into the making of certain donations by the AWU. The validity of the decision made by Mr Christopher Enright, a delegate of the ROC, to conduct the investigation is impugned including on the basis that the decision was made for an improper political purpose, or was made taking into account irrelevant political considerations, or was made at the direction of the Minister.
11 The AWU seeks to make out its case that Mr Enright had a political purpose including by reference to the following matters:
that on 15 August 2017 to 17 August 2017, the Minister purported to refer matters relating to the AWU to the ROC, and that it was after receiving the first referral that Mr Enright first made inquiries of the AWU;
that prior to 29 August 2017, there were several communications between Mr Enright and the Minister's office in relation to the referrals;
that the focus of the referrals and the investigation was on donations made by persons and entities associated with the Australian Labor Party at a time when the Secretary of the AWU was the Honourable Bill Shorten who, at the time the investigation was commenced, was the Federal Leader of the Opposition;
that the ROC did not give notice to the AWU before 20 October 2017 that it was investigating donations made by the AWU (other than particular donations to "GetUp!"), or at any point request that the AWU provide the ROC with any documents in relation to those donations, and that the ROC applied for search warrants the execution of which was covered by the media, rather than issuing a notice to produce under s 335 of the Fair Work (Registered Organisations) Act 2009 (Cth); and
that there appeared to have been considerable communication between the Fair Work Ombudsman's Director of Media, Mr Mark Lee, who performed work for the ROC and who had been offered employment in the Minister's office, and Mr De Garis, who was the person in the Minister's office who "tipped off" journalists to the execution of the warrants.
12 Other matters of potential relevance to the present question are that Mr De Garis has given evidence that he is a colleague of Mr Lee. He referred to Mr Lee as a "mate", but not a close friend, and said that he and Mr Lee had communicated from time to time over the past six or seven years. Further, as the submissions of the ROC state, representatives of the ROC accompanied members of the Australian Federal Police in the execution of the search warrants, a fact from which it may be inferred that representatives of the ROC had prior notice as to the timing of the execution of the search warrants. Further still, the evidence given by Mr De Garis supports the conclusion that he had been given prior notice of the timing of the execution of the search warrants.
13 The question asked of Mr De Garis, which he has declined to answer, goes to the issue of who it was that gave him that prior notice. I cannot exclude the possibility in the circumstances outlined above, including those that suggest a close association between Mr De Garis and Mr Lee and a work-based relationship between Mr Lee and Mr Enright, that evidence of the source of Mr De Garis' prior notice will not be probative of or lead to a train of inquiry probative of whether Mr Enright held or took into account the political purpose for which the AWU contends.
14 It seems to me that the issue which underpins the evidence sought to be elicited from Mr De Garis is not an insignificant issue in the proceeding and that the evidence that may be given by Mr De Garis may be important to the resolution of that issue. On that basis, I consider that this consideration does not support Mr De Garis' position and tends to support the AWU's position that the evidence may be probative.
15 Mr De Garis did not seek to rely on any other factors. I have, however, taken into account the following matters which I will detail briefly.
16 First, that to a significant extent, s 128 of the Evidence Act abrogates a basic common law right. Second, that the certificate that the Court must give if it requires the evidence to be given provides very substantial, although not necessarily complete, protection to the deponent (Gideon at [292] (Bathurst CJ)). Third, that s 128 seeks to balance the interests of the deponent and, in particular, the deponent's right to a fair trial should the deponent be charged or be the subject of any proceeding, against the need for the due and just determination of the proceeding in which the deponent has been called on the basis of the best available evidence. Fourth, that Mr De Garis has not been charged with any offence in circumstances where an investigation as to whether any charges should be laid has been completed and the Commonwealth Director of Public Prosecutions has declined to commence the prosecution. Nor has counsel for Mr De Garis suggested that, any other proceeding to which the evidence that Mr De Garis may give may be relevant, is either extant or in prospect.
17 I appreciate that any decision made not to charge Mr De Garis may be reconsidered, but if that is so, Mr De Garis will have the protection of a certificate issued pursuant to s 128(6) of the Evidence Act. Mr De Garis' counsel did not suggest that a certificate would not provide Mr De Garis with less protection than he may reasonable require.
18 I have proceeded on the basis that the AWU bears the onus of satisfying me that the interests of justice require that Mr De Garis give the evidence sought to be elicited from him.
19 For the reasons given, I am satisfied that the interests of justice require Mr De Garis to give that evidence.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.