Evidence Bill 2025
Part 4 Privileges
Division 5 Self-incrimination
s. 187
page 144
(6) The court may require the witness to give the evidence if the1
court is satisfied that —2
(a) the evidence does not tend to prove that the witness has3
committed an offence against or arising under, or is4
liable to a civil penalty under, a law of a foreign5
country; and6
(b) the interests of justice require that the witness give the7
evidence.8
(7) The court must cause a witness who objects to giving evidence9
under this section to be given a certificate (an evidence10
certificate) in respect of evidence if —11
(a) the court determines that there are reasonable grounds12
for the objection and the witness gives the evidence13
(whether or not after being required to do so under14
subsection (6)); or15
(b) the court overrules the objection but, after the evidence16
has been given, finds that there were reasonable grounds17
for the objection.18
(8) In a criminal proceeding, this section does not apply in relation19
to the giving of evidence by an accused, being evidence that the20
accused —21
(a) did an act the doing of which is a fact in issue; or22
(b) had a state of mind the existence of which is a fact in23
issue.24
Compare:25
Evidence Act 1995 (Commonwealth) s. 12826
187. Effect of evidence certificate27
(1) In any proceeding in a court or before a person acting judicially28
(whether or not a court), the following evidence cannot be used29
against a person —30
(a) evidence given by the person in respect of which an31
evidence certificate has been given;32
Evidence Bill 2025
Privileges Part 4
Self-incrimination Division 5
s. 187
page 145
(b) evidence of any information, document or thing1
obtained as a direct or indirect consequence of the2
person having given evidence in respect of which an3
evidence certificate has been given.4
(2) Subsection (1) —5
(a) does not apply to a criminal proceeding in respect of the6
falsity of the evidence; and7
(b) has effect despite any challenge, review, quashing or8
calling into question on any ground of the decision to9
give, or the validity of, the certificate concerned.10
(3) If an accused in a criminal proceeding is given an evidence11
certificate, subsection (1) does not apply in a proceeding that is12
a retrial of the accused for the same offence or a trial of the13
accused for an offence arising out of the same facts that gave14
rise to that offence.15
(4) If a person has been given a certificate under a corresponding16
provision in respect of evidence given in a proceeding to which17
the corresponding provision applies, the certificate has the same18
effect as an evidence certificate given under section 186.19
(5) Each of the following is a corresponding provision for the20
purposes of subsection (4) —21
(a) a provision of a law of a State or Territory that is22
substantially to the same effect as section 186;23
(b) a provision of a law of a State or Territory prescribed by24
the regulations to be a corresponding provision for the25
purposes of subsection (4).26
Note for this section:27
Subsections (2)(b) and (3) relate to the decision of the High Court of28
Australia in Cornwell v The Queen (2007) 231 CLR 260.29
Compare:30
Evidence Act 1995 (Commonwealth) s. 12831
Evidence Bill 2025
Part 4 Privileges
Division 5 Self-incrimination
s. 188
page 146
188. Privilege in respect of self-incrimination: disclosure orders1
(1) A person to whom a disclosure order is directed (a relevant2
person) may object to complying with the disclosure order on3
the ground that some or all of the information required to be4
disclosed may incriminate the person.5
(2) A relevant person who wishes to object to the disclosure of6
information under this section must —7
(a) disclose any information required to be disclosed to8
which no objection is made; and9
(b) prepare an affidavit (a privilege affidavit) containing the10
information required to be disclosed to which the11
objection is made and deliver it to the court in a sealed12
envelope; and13
(c) file and serve on each other party a separate affidavit14
setting out the basis of the objection.15
(3) The sealed envelope containing the privilege affidavit must not16
be opened except as directed by the court.17
(4) The court must determine whether or not there are reasonable18
grounds for the objection.19
(5) If the court finds that there are reasonable grounds for the20
objection, the court must not require the information contained21
in the privilege affidavit to be disclosed and must return it to the22
relevant person.23
(6) Despite subsection (5), the court may make an order requiring24
the whole or any part of the privilege affidavit to be filed and25
served on the parties, but only if the court is satisfied that —26
(a) the information to be disclosed does not tend to prove27
that the relevant person has committed an offence28
against or arising under, or is liable to a civil penalty29
under, a law of a foreign country; and30
(b) the interests of justice require the information to be31
disclosed.32
Evidence Bill 2025
Privileges Part 4
Self-incrimination Division 5
s. 189
page 147
(7) The court must cause the relevant person to be given a1
certificate (a disclosure certificate) in respect of any2
information disclosed in the privilege affidavit (including by3
order under subsection (6)) that may tend to prove that the4
relevant person has committed an offence against or arising5
under, or is liable to a civil penalty under, an Australian law.6
Compare:7
Evidence Act 1995 (Commonwealth) s. 128A8
189. Effect of disclosure certificate9
(1) In any proceeding in a court or before a person acting judicially10
(whether or not a court), the following evidence cannot be used11
against a person —12
(a) evidence of information disclosed by the person in13
respect of which a disclosure certificate has been given;14
(b) evidence of any information, document or thing15
obtained as a direct or indirect consequence of the16
person having disclosed that information.17
(2) Subsection (1) —18
(a) does not apply to a criminal proceeding in respect of the19
falsity of the evidence; and20
(b) has effect despite any challenge, review, quashing or21
calling into question on any ground of the decision to22
give, or the validity of, the certificate concerned.23
(3) Subsection (1) does not prevent the use against the person of24
any information disclosed by a document that —25
(a) is an annexure or exhibit to a privilege affidavit26
prepared by the person in response to a disclosure order;27
and28
(b) was in existence before the order was made.29
(4) If a person has been given a certificate under a corresponding30
provision in respect of information of a kind referred to in31
Evidence Bill 2025
Part 4 Privileges
Division 5 Self-incrimination
s. 190
page 148
subsection (1), the certificate has the same effect as a disclosure1
certificate given under section 188.2
(5) Each of the following is a corresponding provision for the3
purposes of subsection (4) —4
(a) a provision of a law of a State or Territory that is5
substantially to the same effect as section 188;6
(b) a provision of a law of a State or Territory prescribed by7
the regulations to be a corresponding provision for the8
purposes of subsection (4).9
Compare:10
Evidence Act 1995 (Commonwealth) s. 128A11
190. Court may restrict publication of evidence12
(1) A court that causes a person to be given an evidence certificate13
or a disclosure certificate in respect of any evidence may make14
an order prohibiting the publication of a report of or relating to15
the evidence, or any part of the evidence, or of the giving of the16
certificate, if the court considers that publication of the report,17
or of the giving of the certificate, may tend to prejudice any18
prosecution that has been or may be brought against the person.19
(2) A person must not publish information in contravention of an20
order under subsection (1).21
Penalty for this subsection: a fine of $6 000.22
(3) A person who contravenes subsection (1) —23
(a) is taken to be in contempt of the court that gave the24
evidence certificate or disclosure certificate; and25
(b) is punishable accordingly.26
(4) If a person’s act constitutes both an offence under subsection (2)27
and a contempt of court under subsection (3), the person is not28
liable to be punished twice.29
Compare:30
Evidence Act 1906 s. 11A31
Evidence Bill 2025
Privileges Part 4
Self-incrimination Division 5
s. 191
page 149
191. Self-incrimination: witnesses in public revenue proceedings1
(1) A person who is required by a court under section 29 to give2
evidence in a proceeding to which that section applies may3
object to giving evidence, or evidence on a particular matter, on4
the ground that the evidence may incriminate the person.5
(2) If the court determines there are no reasonable grounds for the6
objection, the court may require the person to give the evidence.7
(3) If the court determines there are reasonable grounds for the8
objection, the court may require the person to give the evidence9
if the court is satisfied that —10
(a) the evidence does not tend to prove that the person has11
committed an offence against or arising under, or is12
liable to a civil penalty under, a law of the13
Commonwealth, another State, a Territory or a foreign14
country; and15
(b) it is in the public interest that the person give the16
evidence.17
(4) The court must, on application, cause the person to be given a18
certificate (an immunity certificate) in respect of any matter in19
relation to which the person gives evidence after being required20
to do so by the court if, in the opinion of the court, the evidence21
the person was required to give incriminates the person.22
(5) If an immunity certificate is given to the person —23
(a) the person is not liable for any offence against or arising24
under, or a civil penalty under, a law of this State in25
respect of a matter specified in the immunity certificate;26
and27
(b) a prosecution for an offence against or arising under, or28
a proceeding for a civil penalty under, a law of this State29
cannot be instituted or continued against the person for a30
matter specified in the immunity certificate.31
Evidence Bill 2025
Part 4 Privileges
Division 6 Evidence excluded in the public interest
s. 192
page 150
(6) An immunity certificate does not extend —1
(a) to an act or omission that occurs after the evidence is2
given in the proceeding in which the immunity3
certificate is given; or4
(b) to a criminal proceeding in respect of the falsity of5
evidence given in the proceeding in which the immunity6
certificate is given.7
(7) Sections 186 and 187 do not apply to a person who is required8
by a court to give evidence under section 29.9
Compare:10
Evidence Act 1906 s. 1311
Division 6 — Evidence excluded in the public interest12
192. Exclusion of evidence of reasons for judicial and other13
decisions14
(1) A judge in an Australian or overseas proceeding, or an arbitrator15
in respect of a dispute submitted to arbitration (whether to 1 or16
more arbitrators), and any other person to whom this subsection17
extends, must not give evidence of the following —18
(a) the reasons for the decision made by the judge or19
arbitrator in the proceeding or arbitration;20
(b) the deliberations of the judge or arbitrator in relation to21
that decision.22
(2) Subsection (1) extends to a person who was, in relation to a23
proceeding or arbitration, under the direction or control of the24
judge or arbitrator.25
(3) Evidence that a person must not give under subsection (1) or (2)26
also must not be given by tendering as evidence any document27
prepared by the person.28
(4) This section does not prevent the admission or use, in a29
proceeding, of published reasons for a decision.30
Evidence Bill 2025
Privileges Part 4
Evidence excluded in the public interest Division 6
s. 193
page 151
(5) In a proceeding, evidence of the reasons for a decision made by1
a member of a jury in another Australian or overseas2
proceeding, or of the deliberations of a member of a jury in3
relation to the decision, must not be given by any of the4
members of that jury.5
(6) This section does not apply in a proceeding that is —6
(a) a prosecution for 1 or more of the following offences —7
(i) an offence against The Criminal Code8
Chapter XVI or XVII;9
(ii) an offence connected with an offence mentioned10
in subparagraph (i), including an offence of11
attempting to commit, conspiring with another12
person to commit, inciting another person to13
commit or attempting to procure another person14
to commit an offence mentioned in15
subparagraph (i);16
or17
(b) in respect of a contempt of court; or18
(c) by way of appeal from, or judicial review of, a19
judgment, decree, order or sentence of a court; or20
(d) by way of review of an arbitral award; or21
(e) a civil proceeding in respect of an act of a judicial22
officer or arbitrator that was, and that was known at the23
time by the judicial officer or arbitrator to be, outside24
the scope of the matters in relation to which the judicial25
officer or arbitrator had authority to act.26
Compare:27
Evidence Act 1995 (Commonwealth) s. 12928
193. Exclusion of evidence of matters of state29
(1) If the public interest in admitting into evidence information or a30
document that relates to matters of state is outweighed by the31
public interest in preserving secrecy or confidentiality in32
Evidence Bill 2025
Part 4 Privileges
Division 6 Evidence excluded in the public interest
s. 193
page 152
relation to the information or document, the court may direct1
that the information or document not be adduced as evidence.2
(2) The court may give the direction either on its own initiative or3
on the application of any person (whether or not the person is a4
party).5
(3) In deciding whether to give the direction, the court may inform6
itself in any way it thinks fit.7
(4) Without limiting the circumstances in which information or a8
document may be taken for the purposes of subsection (1) to9
relate to matters of state, the information or document is taken10
for the purposes of that subsection to relate to matters of state if11
adducing it as evidence would —12
(a) prejudice the security, defence or international relations13
of Australia; or14
(b) damage relations between the Commonwealth and a15
State or a Territory or between States, Territories or a16
State and Territory; or17
(c) prejudice the prevention, investigation or prosecution of18
an offence; or19
(d) prejudice the prevention or investigation of, or the20
conduct of proceedings for recovery of civil penalties21
brought with respect to, other contraventions of the law;22
or23
(e) disclose, or enable a person to ascertain, the existence or24
identity of a confidential source of information relating25
to the enforcement or administration of a law of the26
Commonwealth, a State or a Territory; or27
(f) prejudice the proper functioning of the government of28
the Commonwealth, a State or a Territory.29
Evidence Bill 2025
Privileges Part 4
Evidence excluded in the public interest Division 6
s. 194
page 153
(5) Without limiting the matters that the court may take into1
account for the purposes of subsection (1), the court must take2
into account the following matters —3
(a) the importance of the information or the document in the4
proceeding;5
(b) if the proceeding is a criminal proceeding — whether6
the party seeking to adduce evidence of the information7
or document is an accused or the prosecutor;8
(c) the nature of the offence, cause of action or defence to9
which the information or document relates, and the10
nature of the subject matter of the proceeding;11
(d) the likely effect of adducing evidence of the information12
or document, and the means available to limit its13
publication;14
(e) whether the substance of the information or document15
has already been published;16
(f) if the proceeding is a criminal proceeding and the party17
seeking to adduce evidence of the information or18
document is an accused — whether the direction is to be19
made subject to the condition that the prosecution be20
stayed.21
Compare:22
Evidence Act 1995 (Commonwealth) s. 13023
194. Exclusion of evidence of settlement negotiations24
(1) In this section —25
dispute means a dispute of a kind in respect of which relief may26
be given in an Australian or overseas proceeding;27
power means a power conferred by or under an Australian law.28
(2) Evidence must not be adduced of —29
(a) a communication that is made between persons in30
dispute, or between 1 or more persons in dispute and a31