ATTORNEY-GENERAL OF SOUTH AUSTRALIA v MEGAN RUTH BROOKS [2024] SASC 148

Applicant: ATTORNEY-GENERAL OF SOUTH AUSTRALIA Counsel: MS A DOEKE KC WITH MS J CLARE - Solicitor: CROWN SOLICITOR (SA) Respondent: MEGAN RUTH BROOKS Counsel: MR T COX KC WITH MR A KALALI - Solicitor: WALLMANS LAWYERS Interested Party: CORONER'S COURT OF SOUTH AUSTRALIA No Attendance Hearing Date/s: 04/11/2024 File No/s: CIV-24-008415 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL OF SOUTH AUSTRALIA v BROOKS [2024] SASC 148 Judgment of the Honourable Justice B Doyle 18 December 2024 ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EVIDENCE ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - ORDERS TO QUASH DECISION MAGISTRATES - CORONERS - INQUESTS AND INQUIRIES - PROCEEDINGS AT INQUEST OR INQUIRY - EVIDENCE The Deputy State Coroner (‘the Coroner’) is conducting an inquest into the circumstances of the deaths of three individuals (‘the Inquest’). The Inquest is proceeding on the basis of a common issue, relating to delayed transfer of care to the emergency department (known as ‘ramping’). The Coroner is inquiring into ramping at the time of the deaths and more generally. The respondent, Dr Megan Brooks, is an emergency physician who had at relevant times held leadership positions at the Royal Adelaide Hospital and within the Central Adelaide Local Health Network. Dr Brooks sent an email to the Coroner providing information, attaching documents and indicating a willingness to provide more information. Subsequently, a summons was issued to her to appear at the Coroner’s Court. In response to the summons, Dr Brooks appeared as a witness in the Inquest. She was asked questions by counsel retained to represent her which elicited an answer that she was aware that if she was to disclose official information acquired in the course of her employment without authority she would be in breach of the Code of Ethics (‘Code’) to which she was subject under the Public Sector Act 2009 (SA) and that because of the risk of disciplinary action she objected to answering questions on information acquired during the course of her employment on the topic of ramping. The Coroner ruled that Dr Brooks had reasonable grounds for making an objection and that the interests of justice required that she answer questions or produce documents on the topic of ramping, within the meaning of those expressions in s 23A of the Coroners Act 2009 (SA) (‘the Act’). The Coroner issued a certificate to Dr Brooks which stated that answers given by her in response to a question or a series of questions on the topic of ramping including any records or documents -- 1 of 73 -- produced by her in response to those questions or as required by the Court were evidence to which s 23A of the Act applied, with the consequences contemplated by s 23A(8) of the Act applying to it (‘the Certificate’). By originating application for review the Attorney-General seeks relief in the nature of certiorari quashing the Certificate. By agreement, Dr Brooks acts as contradictor. The Coroner’s Court of South Australia has not participated in the application for review. The Attorney-General contends that the Coroner misapprehended the statutory scheme in various respects, submitting, inter alia, that: 1. the Coroner permitted an objection to a foreshadowed body of evidence rather than requiring an objection to a question, and considering the application of s 23A on a question-by-question basis, and in circumstances where Dr Brooks was not subject to compulsion or potential compulsion by reason that she was being asked questions by counsel retained to represent her interests; 2. the Coroner applied the wrong test to consider whether there were ‘reasonable grounds’ by not considering whether there was a ‘real and appreciable’ danger of being exposed to a penalty, and by failing to consider whether particular questions might involve disclosing ‘official information’ within the meaning of the Code, or whether the answers might be ‘required by law’ within the meaning of the Code; 3. the Coroner failed properly to interpret and apply what the ‘interests of justice require’; 4. the Coroner purported to issue the Certificate before Dr Brooks had answered any questions to which the Certificate related. Held, granting the application for judicial review and quashing the Certificate: 1. there had not been an objection taken to a question which itself required an answer which might have the tendency to make Dr Brooks liable to a penalty under an Australian law or foreign law. The questions posed merely elicited Dr Brooks’ attitude should such questions be asked; 2. questions posed of Dr Brooks by her counsel were not, without more, attended by the requisite degree of compulsion or potential compulsion so as to be capable of engaging s 23A of the Act; 3. the Coroner erred by proceeding on the footing that s 23A may be engaged where even though answering a question would not have the tendency to reveal anterior conduct that might result in a penalty under Australian law or foreign law, the giving of the answer might itself amount to conduct that might have that consequence; 4. the Coroner erred by issuing a certificate before the evidence to which it was to relate had been given. Coroners Act 1997 (ACT); Coroners Act 1980 (NSW) s 61; Coroners Act 1993 (NT) s 38; Coroners Act 2003 (SA) ss 9(1)(a), 15, 20(1)(a), 23(1)(a), 23A(1)(b), 23A(2), 23A(3), 23A(4), 23A(5), 23A(5)(a), 23A(7), 23A(8), 23A(9), 23A(10); Coroners Act 2008 (Vic) s 57; Coroners Act 1999 (WA) s 47; Corporations Act 2001 (Cth) s 597(12A); Criminal Evidence Act 1898 (UK) s 1(e); Crown Proceedings Act 1992 (SA) s 9(1)(a); Evidence Act 1995 (Cth) s 128; Evidence Act 2011 (ACT) s 128; Evidence Act 1977 (Qld) s 10(1); Evidence Act 1929 (SA) ss 18(1), 33(1); Evidence Act 2008 (Vic) s 128; Evidence Act 2001 (Tas) s 128; Evidence Act 1906 (WA) ss 11, 13 and 24; Evidence Act 1851 ch 99 14 and 15 Vict; Evidence (National Uniform Legislation) Act 2011 (NT); Health Care Act 2008 (SA); Independent Commission Against Corruption Act 2012 (SA) cl 8(5) of sch 2; Legislation Interpretation At 2021 (SA) ss 14 and 19(1); Public Sector Act 2009 (SA) ss 6, 15(2), 15(2)(c), 53(1)(d), 54(1)(d) and 55(1); Supreme Court Act 1970 (NSW) ss 69(4) and 80, referred to. C v National Crime Authority (1987) 78 ALR 338; Construction, Forestry, Mining and Energy Union of Australia v Australian Building and Construction Commission (2018) 259 FLR 20; Duncan v Bert -- 2 of 73 -- Farina Constructions Pty Ltd [2024] SASCA 67; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Song v Ying (2010) 79 NSWLR 442; Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107, applied. Ollis v Melissari [2005] NSWSC 1016, distinguished. Chao v Chao [2008] NSWSC 584; Ferrall v Blyth (2000) 27 Fam LR 178, not followed. Australian Crime Commission v Stoddart (2011) 244 CLR 554; Emission Assessments Pty Ltd v James Jackson [2022] WASC 60; Hammond v The Commonwealth (1982) 152 CLR 188; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; Inquest into the death of Josephine Nellie Florence Spain [2010] NSWLC 14; Kempley v The King [1944] ALR 249; McGuinness v Attorney- General (Vic) (1940) 63 CLR 73; Price v McCabe; Ex parte Price (1984) 55 ALR 319; R v Associated Northern Collieries (1910) 11 CLR 738; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; R v Beydoun (1990) 22 NSWLR 256; R v Medich (No 29) [2018] NSWSC 133; Re Vista Capital Pty Ltd (in liq) (2013) 93 ACSR 163; Rees v Krazmann (1965) 114 CLR 63; Rich v Attorney General of New South Wales [2013] NSWSC 877; Rich v Attorney General of New South Wales [2013] NSWCA 419; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475; Sorby v The Commonwealth (1983) 152 CLR 281; Stucterre Consulting Engineers (NSW) Pty Ltd v Townend [2020] NSWSC 1476; Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248, discussed. A v Hayden (No 2) (1984) 156 CLR 532; AB (a pseudonym) v Independent Broad-based Anti- corruption Commission (2025) 98 ALJR 532; [2024] HCA 10; Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Aitken v Murphy [2011] FamCA 785; Attorney-General (NSW) v Borland [2007] NSWCA 20; Attorney-General v Lundin (1982) 75 Cr App R 90; Bell v Deputy Coroner of South Australia (2020) 138 SASR 467; Calbassi v Vila (1940) 64 CLR 130; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Clayton Utz (a firm) v Dale (2015) 47 VR 48; Collins v Blantern (1765) 2 Wils KB 341; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Construction, Forestry, Mining and Energy Union of Australia v Alfred (2004) 135 FCR 459; Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385; Cornwell v The Queen (2007) 231 CLR 260; Correll v Attorney-General (NSW) [2007] NSWSC 1385; Craig v South Australia (1995) 184 CLR 163; Crawford v Crawford (No 3) [2016] NSWSC 704; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Decker v State Coroner of New South Wales (1999) 46 NSWLR 415; De Lutis v De Lutis [2017] VSC 505; Deputy Commissioner of Taxation of the Commonwealth of Australia v Shi (2021) 273 CLR 235; Director of Public Prosecutions v Peters (a pseudonym) (2019) 59 VR 203; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Field v Kingston [2018] FamCAFC 145; In the matter of Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration) [2014] NSWSC 1898; Jamieson v The Queen (1993) 177 CLR 574; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Kontis v Coroners Court of Victoria [2022] VSC 422; Korp v Deputy State Coroner [2006] VSC 282; LG v The Minister for Families and Communities [2012] SASCFC 72; McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; Marshall v Director General Department of Transport (2001) 205 CLR 603; Meiko Australia Pacific Pty Ltd v Hinchliffe [2009] NSWSC 354; Migration Agents Registration Authority v Frugtniet (2018) 259 FCR 219; Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31; Police Service Board v Morris (1985) 156 CLR 397; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; QC Resource Investments Pty Ltd (in liq) v Mulligan [2016] FCA 813; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; R v Bikic [2001] NSWCCA 537; R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; R v Magistrates Court at Melbourne; Ex parte Cross [1987] VicSC 73; R v Skinner (1772) Lofft 54; 98 ER 529; R v South London Coroner; Ex parte Thomson [1982] 126 SJ 625; R v The Coroner; Ex parte Alexander [1982] VR 731; Re ACPH (No 2) (2012) 93 ACSR 130; Redfern v Redfern [1891] P 139; Registrar, Supreme Court of South Australia v Zappia (2003) 86 SASR 388; Reid v Howard (1995) 184 CLR; Rolfe v The Territory Coroner [2023] NTCA 8; Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436; Shanahan v Jatese Pty Ltd (2018) 107 NSWLR 430; Shekholeslami v Tolcher (2009) 75 NSWLR 418; Sogelease Australia Ltd v Griffin [2003] NSWSC 178; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Thomas v Nash (2010) 107 SASR 309; Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 7) [2022] VSC 549; Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96; Valantine v Technical and Further Education Commission [2007] NSWCA 208, considered. -- 3 of 73 -- -- 4 of 73 -- ATTORNEY-GENERAL OF SOUTH AUSTRALIA v BROOKS [2024] SASC 148 Civil: Application for Judicial Review 1 B DOYLE J: In the course of an inquest into the circumstances of the deaths of Mrs Anna Panella, Mr Bernard Skeffington and Mr Graham Jessett (‘the Inquest’),1 on 26 August 2024, the Deputy State Coroner (for convenience, ‘the Coroner’) issued a certificate to Dr Megan Brooks (‘the Certificate’) in reliance upon s 23A(5) of the Coroners Act 2003 (SA) (‘the Act’). 2 By originating application for review filed on 4 September 2024, the Attorney-General seeks judicial review of the decision to issue, and seeks orders in the nature of certiorari quashing, the Certificate. By agreement, the respondent, Dr Brooks, acts as a contradictor to the application. The Coroner’s Court of South Australia is an interested party but, consistent with accepted practice and principle,2 has not actively participated in the application for judicial review. 3 For the reasons that follow, I would quash the Certificate. It was issued in circumstances affected by jurisdictional error. Background 4 The Inquest is proceeding on the basis of a common issue, being that all three deceased persons were transported to hospital by ambulance and all experienced a delayed transfer of care to the emergency department, remaining in the ambulance for a period of time. The Coroner is inquiring into this issue, which is commonly referred to as ‘ramping’, both at the time of each patient’s death and at the present day. 5 Mrs Panella and Mr Skeffington died at the Royal Adelaide Hospital (‘RAH’) on 28 April 2019 and 30 September 2021. Mr Jessett died at the Flinders Medical Centre (‘FMC’) on 22 March 2022. 6 Dr Brooks is employed as a Consultant Emergency Physician at the RAH and holds other roles in the public health system. She has previously held leadership positions at the RAH and has worked as a Registrar and Senior Registrar/Fellow at FMC. 7 The Inquest commenced on 23 April 2024. 8 On 29 April 2024, Dr Brooks sent an email to the Coroner directly which attached two documents. 1 Being Inquest No 24/2024 (0847/2019, 2112/2021, 0662/2022). 2 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ). -- 5 of 73 -- [2024] SASC 148 B Doyle J 2 9 The first was a letter that in her then-capacity as Site Director of the RAH Emergency Department, she had, together with the Network Director of Emergency Services for Central Adelaide Local Health Network Incorporated (‘CALHN’), jointly authored to the Executive Director of Medical Services and the Executive Director of Clinical Governance for CALHN, dated 5 September 2018. The letter was expressed to be written on behalf of the Consultant Emergency Physicians employed at the RAH Emergency Department and expressed serious concerns about the overcrowding in recent months at the RAH. The letter addressed medicolegal and indemnity concerns held by the Consultant group. 10 The second attached document was a copy of a Parliamentary Briefing Note said to have been prepared by Dr Brooks at the request of Ms Lesley Dwyer, a former Chief Executive Officer of CALHN in September 2019, apparently setting out the history of what the email describes as the Emergency Department ‘escalation process’ from 2014-2019. A claim of parliamentary privilege in respect of the note was made and upheld before the Coroner and it was not in evidence in this proceeding. 11 In her email, Dr Brooks stated that she had shared these, and other relevant documents, with CALHN ‘so that they may be included in the institutional response’. She went on to say, however, that the import of the documents was such that she wished to ‘personally ensure that they have been provided to [the Coroner]’. The email also stated as follows: It is my understanding that the RAH ED Consultant group will also provide you information separately to the institutional response. This includes the 2022 request to CALHN Executive (prompted by the death of Mr Skeffington) to have the several patient incidents related to ED Overcrowding/ramping classified as a cluster event to support further investigation. This request was declined by the Deputy CEO/Executive Director of Clinical Governance of CALHN. I am most willing to be contacted to provide further information. 12 The following day, counsel assisting the Coroner provided a copy of the email to the practitioners appearing in the Inquest, advised that the Coroner had not responded or engaged with the email, and stated that he ‘had a summons issued for Dr Brooks’ attendance at the Inquest’. 13 A summons dated 30 April 2024 was issued to Dr Brooks (‘Summons’) in these terms: WHEREAS the Coroner’s Court has reason to believe that you can give evidence in an inquest to ascertain the cause or circumstances of the death of Anna Vincenza Panella, Bernard Anthony Skeffington and Graham Henry Jessett. Now by virtue of the provisions of the Coroners Act 2003 and all other enabling powers you are required to personally appear before the Coroner’s Court, Coroners Court 302 King William Street Adelaide in the State of South Australia on the ninth day of May 2024 at -- 6 of 73 -- [2024] SASC 148 B Doyle J 3 10:00 o’clock in the forenoon, then and there to be examined and give evidence concerning the matter the subject of this inquest. … NOTE: Failure to comply with the requirements of the summons may render you in contempt of the Court and liable to a fine not exceeding $10 000 or a period of imprisonment for a specified term not exceeding 2 years or until the contempt is purged. 14 This summons was issued pursuant to s 23(1)(a) of the Act, to which I will return. On that date there was brief discussion during the course of the Inquest as to the possibility that Dr Brooks might be independently represented and as to whether she might provide a written statement or affidavit or would alternatively be ‘led’ by her representative ‘cold’. Concerns were expressed by senior counsel appearing for various witnesses for the State about the desirability of having some notice of her likely evidence so as to ensure procedural fairness. 15 On 6 May 2024, Dr Brooks’ counsel appeared at the inquest and indicated that Dr Brooks objected to providing an affidavit in advance of her giving evidence and that, in fact, her position would be that she would object to answering questions on the basis that there were reasonable grounds that it might incriminate her. In that context, counsel for Dr Brooks said with reference to Dr Brooks’ email to the Court: In that communication there was an email and two documents and fundamentally at its core the doctor will be providing information to the court and at present the Code of Ethics in relation to the South Australian Public Sector is the divulging of information outside the ordinary use amounts to misconduct unless required by law. So my client may fall foul if she provides information to the court in advance which falls outside the remit of her work. So the affidavit would do that. … And her evidence no doubt and answering questions about her work unless compelled to do so would fall foul of potential misconduct and so it’s on that basis we say that there is reasonable cause. 16 The Coroner indicated that in principle he was willing to give a certificate. Reference was made to procedural aspects of the timing of the issue of any certificate. Senior counsel appearing for the State sought the opportunity to take instructions and made general submissions to the effect that the certificate (the draft of which she had not seen) needed a level of particularity. Later that day, counsel assisting the Coroner sent an email to the interested parties attaching a proposed certificate. The draft certificate was broadly cast. It certified that evidence given by Dr Brooks in the form of an affidavit or oral evidence in relation to her work as a medical officer or any matter related to that work, including documents produced with the affidavit or during oral evidence, and any records or documents produced incidentally to her attendance as a witness, was evidence to which s 23A of the Act applied. -- 7 of 73 -- [2024] SASC 148 B Doyle J 4 17 On 7 May 2024, senior counsel appearing for the State expressed a concern that the form of the certificate may not properly engage with s 23A, but that she required further time to obtain complete instructions. The Coroner indicated he would sign the form of certificate presented to counsel the previous day on the understanding it might be superseded. He did so. 18 By letter dated 29 May 2024, the Crown Solicitor, now specifically instructed by the Attorney-General, who was entitled to appear in the proceedings pursuant to s 20(1)(a) of the Act, and who in any event intervened pursuant to s 9(2)(a) of the Crown Proceedings Act 1992 (SA), wrote to counsel assisting the Coroner and the other interested parties. In that letter, it was contended that the certificate had been issued in circumstances involving jurisdictional error. The letter acknowledged that, whilst there was an argument that s 23A(10) might nevertheless preserve its effect, there was doubt about that. Amongst other things, by the letter, Dr Brooks was invited to provide a draft affidavit to ‘break the impasse’. The letter stated that Dr Brooks’ solicitors had indicated they would not produce the affidavit until the issues surrounding the certificate’s validity were resolved. In response to a request that had been sought for an assurance from SA Health that it would provide Dr Brooks with an undertaking that no action would be taken by it in relation to evidence she may give to the Coroner, the Crown Solicitor wrote that: I am instructed that SA Health declines to give the undertaking sought by Dr Brooks. SA Health, as a public sector agency and employer, has an obligation to protect the integrity of its policies and processes under the legislation pursuant to which it operates. It is not appropriate for a public sector employer to give a blanket undertaking blindly in relation to information which may be given by an employee without knowledge of what is likely to be said and the materials that [an] employee wishes to provide. This position is underscored by the fact that it is the employee who has made direct contact with the Court, not the Deputy Coroner who is seeking specific information from a prospective witness as is the usual course. In any event, the entire purpose of the insertion of s 23A is to provide the scheme by which employer and employee relations are balanced for the purposes of giving evidence in the Coroner’s Court. That is the course that should be followed. It would be highly regrettable if a public sector employer voluntarily tied its hands such that evidence given by an employee (oral or written) waived legal professional privilege, breached public interest immunity, breached an obligation of confidence, was illegal or otherwise was a breach of legislative or regulatory obligations and the employee was immune from being dealt with by the employer in relation to that. … SA Health is also not able to provide a blanket authority for information to be provided to the Deputy Coroner. In this regard, it is particularly important that SA Health has not been advised of the documents which Dr Brooks seeks to provide. As with the example of the Parliamentary Briefing Note Dr Brooks sought to put before the inquest in her email to the Deputy Coroner on 29 April, there may be certain documents which SA Health will not consent to being put before the Court, even if (as may or may not be the case), SA Health does not object to the contents of the document. 19 Later that day, in view of the issues raised and the undesirability of judicial review proceedings consuming scarce resources, the Coroner indicated that a -- 8 of 73 -- [2024] SASC 148 B Doyle J 5 practical approach would be to withdraw the certificate and defer consideration of the granting of a certificate until her attendance to give evidence. No party represented at the hearing opposed that course. The Coroner formally withdrew the certificate. No issue arises in this proceeding as to the efficacy of that certificate or its withdrawal. 20 On 7 June 2024, the Crown Solicitor wrote to Dr Brooks’ solicitors requesting an articulation or identification of the nature of the evidence she proposed to give, so as to afford procedural fairness, and so as to allow the parties to understand what the possible scope of argument regarding penalty privilege might be. The letter concluded: Having regard to the manner in which Dr Brooks’ resignation letter was widely circulated through CALHN, there is an appreciable risk that this is really an attempt to set up a situation for her to attempt to embarrass the State without notice. 21 On 26 August 2024, Dr Brooks appeared before the Inquest and was called as a witness. The transcript records that Dr Brooks was called by the Coroner. She was examined in chief by counsel retained on her behalf. Counsel asked questions directed towards Dr Brooks’ qualifications and experience, including at the FMC and the RAH. Dr Brooks explained her role as Site Director of the Emergency Department at the RAH. She explained that, amongst other things, that entailed acting as an interface between emergency clinicians and paramedics, or ambulance officers. Dr Brooks was also asked about the nature of her role when she was appointed Medical Lead, Acute and Urgent Care, in October 2019, a position in which she remained until December 2022. Finally, Dr Brooks explained the nature of the role she had been performing between February 2023 and June 2024, as Clinical Liaison, Medical State Health Coordination Services. Dr Brooks said that from June she had returned to her substantive role as an Emergency Physician at the RAH. 22 Dr Brooks confirmed that she understood that the Inquest concerned the deaths of two patients who had been admitted to the RAH and that it was also concerned with delayed transfer or ‘ramping’. She was then asked whether she had authority from her employer, the Department of Health and Wellbeing or CALHN to disclose official information she acquired through the course of her employment with regards to ramping and delayed transfer of care, to which she answered ‘no’. Her counsel then asked her whether she understood that without the authority or unless required by law, she must not disclose official information acquired through the course of her employment, to which she answered ‘yes’. 23 The following exchange then occurred: Q Are you aware that if you disclose official information you acquired through the course of your employment without authority you would be in breach of the Code of Ethics for the South Australian Public Sector. A Yes, I understand. -- 9 of 73 -- [2024] SASC 148 B Doyle J 6 Q Do you understand that if you did disclose information without authority you may be liable to disciplinary action. A Yes. Q In the circumstances do you object to answering a question or questions on information you acquired during the course of your employment on the topic of ramping. A I am not willing to answer questions because I am placing myself in the jeopardy described that you have described. Q So if you’re unwilling is it the case that you would only answer questions if you’re compelled by law to do so. A I will answer questions if I am compelled to do so. 24 Counsel for Dr Brooks said that he could not ask further questions of Dr Brooks, subject to the issue of a s 23A certificate. The Coroner asked a question which elicited confirmation that Dr Brooks was subject to the Public Sector Act 2009 (SA) (‘PS Act’) and, by reason thereof, the Code of Ethics for the South Australian Public Sector (‘the Code’). 25 Senior counsel appearing for the Attorney-General submitted that the topic identified (questions about ramping or delayed transfer of care) was insufficiently precise to properly engage s 23A. She submitted that within that topic there would be matters already within the public domain. She also submitted that it was unclear what the actual question(s) to which objection was said to be taken was or were. In response to the Coroner’s observation that the section could be engaged with respect to a series of questions, senior counsel submitted: It could be but there’s got to be a question and at the level of generality that is put at the moment, any question with respect to ramping it is in my submission too broad to properly engage the provision. … [T]he word ‘question’ directs attention to a very precise inquiry. Insofar as the Code of Ethics operates to prevent the disclosure of official information that disclosure has to be information which is not otherwise in the public domain. It’s not protecting information which is not confidential. … And so it’s not apparent to me that the certificate is required because there’s not been an exhausting of material that’s otherwise in the public domain or before this inquest. Then the other matter that needs to be taken into account is the proper operation of s 15 of the Public Sector Act. … 26 There was then an exchange concerning the exceptions to s 15(2) of the PS Act. Senior counsel submitted that there were not demonstrated ‘reasonable grounds’ for the objection because, framed as generally as the topic had been, it -- 10 of 73 -- [2024] SASC 148 B Doyle J 7 could not be determined there was a real and appreciable risk that any answer by Dr Brooks would expose her to a penalty. Counsel continued: In my submission the broad objection to any question with respect to ramping is too broad. It does not reflect a question. It does not reflect a question for which the answer is sufficiently clear that it would put Dr Brooks at risk of penalty so as to justify your Honour to determine that there is reasonable grounds for the objection. 27 Counsel assisting the Coroner then made submissions including that the complaint about the level of generality was ‘also the level of generality with which Dr Brooks’ employer has refused to authorise her to speak’. Counsel assisting submitted: I pose the question, ‘How do you delve deeper into that topic when SA Health has refused her permission to speak at that general level?’. SA Health has not reached out and refused her to speak about a particular meeting she was at, or a particular document she received. They have refused her permission to speak about ramping. … My submission is that a complaint about the level of generality must be met with a response about the level of generality of the refusal to approve her to speak. The difficulty, your Honour is essentially hamstrung because your Honour can’t delve into the topic because Dr Brooks can’t speak deeper about topics because she has not been authorised to speak deeper about topics. 28 Counsel for Dr Brooks then made submissions directed towards the reasonable grounds for the objection said to arise under s 23A(1)(b). He submitted that pursuant to s 6 of the PS Act, public sector employees were required to observe the Code of Conduct and that there were potential consequences under other provisions of the Act for a breach.3 He handed up the Code and made reference to passages in the Code concerned in particular with ‘Handling Official Information’. The relevant provisions of the Code are contained within a chapter titled ‘Professional Conduct Standards’. They are reproduced below. PUBLIC COMMENT Public sector employees will only make public comment in relation to their duties, the public sector or the Government – including policy and programs – when specifically authorised to do so. Such comment will be restricted to factual information and professional advice and avoid the expression of personal opinion. Public comment includes providing information or comment to or in any media (electronic and print), including posting comment on the internet and speaking engagements. Notwithstanding the above, public sector employees may engage in a private capacity in conduct intended to influence public opinion on an issue, or promote an outcome in relation to an issue of public interest except in the circumstances set out in section 15(2) of the Public Sector Act 2009. 3 See ss 53(1)(d), 54(1)(d) and 55(1) of the PS Act, and the discussion in Bell v Deputy State Coroner of South Australia (2020) 138 SASR 467 at [113]-[131] (Blue J). -- 11 of 73 -- [2024] SASC 148 B Doyle J 8 These provisions do not apply to certain statutory office holders (or other authorised officers or employees) who are entitled to make independent public comment, either through convention, under legislation or pursuant to delegated authority. HANDLING OFFICIAL INFORMATION By virtue of their duties, public sector employees frequently access, otherwise deal with, and/ or are aware of, information about issues, facts and circumstances that they know, or where a reasonable person in the circumstances would know, needs to be treated as confidential. Public sector employees will not access or attempt to access official information other than in connection with the performance by them of their duties and/or as authorised. Public sector employees will not disclose official information acquired through the course of their employment other than is required by law or where appropriately authorised in the agency concerned. Public sector employees will not misuse information gained in their official capacity, including, but not limited to: • purchasing shares or other property on the basis of confidential information about the affairs of a business or of a proposed Government action; or • seeking to use information for personal benefit or gain or for the personal benefit or gain of another. Public sector employees will maintain the integrity and security of official information for which they are responsible. Employees will also ensure that the privacy of individuals is maintained and will only release information in accordance with relevant legislation, industrial instruments, policy, or lawful and reasonable direction. 29 Counsel relied upon correspondence of 29 May 2024 and 7 June 2024 with a view to demonstrating that, within the meaning of the Code, Dr Brooks’ employer had not given authorisation to disclose official information that she had acquired in the course of her employment. He drew attention to the final sentence of the second letter, which is set out earlier in these reasons. 30 In respect of s 15(2) of the PS Act, counsel submitted that it concerns conduct by an employee in their private capacity intended to influence public opinion on an issue or promote an outcome in relation to an issue of public interest. He argued that answering questions under a summons would not meet that description. He also pointed to the exception in s 15(2)(c) of the PS Act, which does not permit conduct that is disgraceful or improper conduct that reflects seriously and adversely on the public sector. In relation to the exception in the Code concerning disclosure ‘required by law’, he submitted that being summonsed to attend did not mean Dr Brooks was required by law to answer questions. Counsel continued: We say that the topic of ramping or delayed transfer of care is the exact reason why she has been summoned to appear before this Inquest. It is her knowledge that she’s acquired through the course of her employment with regards to the delayed transfer of care or ramping is the precise reason why she has been summoned to appear before your Honour. -- 12 of 73 -- [2024] SASC 148 B Doyle J 9 So, her answers would draw from information that she’s acquired in the course of her employment. That is the basis for her answers. For Dr Brooks to be able to delineate which information she can reveal without civil penalty in contrast to what she can’t places her in an impossible position. We say that this situation requires the, what I call a global approach to the topic of ramping by your Honour, and your Honour will know that [sub-s] (7) of the Coroners Act, which deals with – the section may relate to more than one question or to a combination of one or more questions. We say that if your Honour deals with it in this way then we can move this Inquest efficiently. The alternative is that we look at every question and we have to delineate whether the answer to that question is official information she acquired in the course of her employment invoking potentially [sub-s] (3) and if your Honour will then have to advise and move onto [subs-s] (4). So, we say that sub-s 23A(7) of the Coroners Act which deals with the combination of one or more questions adequately deals with the issue that your Honour faces. As you Honour has pointed out, the case of Bell pre-dates the legislation. Blue J set out the common law and it’s right that in Bell, generally, it should be by question-by-question but the Act itself does not make any mention of that other than [sub-s] (1) which uses question as opposed to questions. In my submission sub-s (7) deals with the issue that we have today. I submit there are reasonable grounds for the objection and your Honour would now need to move onto sub-s (3) and if necessary sub-s (4) of the Act. 31 Following a brief adjournment, the Coroner delivered a ruling. The settled form of the ruling was in these terms: Ruling of Coroner in the Course of Inquest An Inquiry taken on behalf of our Sovereign King at Adelaide in the State of South Australia by the Coroners Court of the said State, constituted of Ian Lansell White, Deputy State Coroner, concerning Anna Vincenza Panella, Bernard Anthony Skeffington and Graham Henry Jessett. 1. Dr Megan Brooks is currently giving evidence to assist the Inquest into the death of the late Mrs Panella, the late Mr Skeffington and the late Mr Jessett. These Inquests have been heard together. They have a common issue. The late Mrs Panella and the late Mr Skeffington died at the Royal Adelaide Hospital where Dr Brooks worked at the time as far as I can glean from the evidence. Mr Jessett died at the Flinders Medical Centre, also a place of her previous employment as a doctor. 2. Dr Brooks has had a significant input into public health since 2004 both as a clinician and on a more non-clinical level as an executive. She has been summoned to give evidence by the Court. Mr Kalali appears for her and has led her evidence so far. She has now objected to further questions on the basis her answers to questions about the topic of ramping may tend to make her liable to a penalty under Australian law. She has identified the Public Sector Act 2009 and, in particular, the Public Sector Code of Conduct that applies under Section 6 of that Act also known as a Code of Ethics. 3. Part of the Code of Ethics’ narrative that was tendered as part of the document states that: ‘Public sector employees will not disclose official information acquired through the course of their employment other than is required by law or where appropriately authorised in the agency concerned’. She has not received authorisation to do so. She has sought permission from her agency but that has been declined. -- 13 of 73 -- [2024] SASC 148 B Doyle J 10 4. I have seen correspondence of this topic but I need not go into the merits of the ultimate decision declining her permission. She therefore has raised an objection that her answers to questions about ramping may offend her duties under the Public Sector Act and the Code. I therefore must decide the reasonableness of that objection under Section 23A of the Coroners Act 2003. 5. I have heard submissions from Mr Kalali, Ms Doecke KC for the Honourable Attorney-General who has a right of appearance under Section 20 of the Act and Counsel Assisting, Mr Evans. I thank counsel for their submissions and I thank Ms Doecke KC for her assistance in providing me with a copy of Rich v Attorney General of NSW referred by her in submissions on behalf of the Honourable Attorney-General. 6. The key Section I must act upon is Section 23A(2) of the Act. That says: ‘The Court must determine whether or not there are reasonable grounds for the objection’. I am then left to decide that topic. 7. I have considered all the evidence provided and all the submissions made on this topic. I find her objection does disclose reasonable grounds, namely answers may tend to make her liable to a breach of the code or the Public Sector Act even to the extent of Section 15 of the Act. She then may be subject to penalties under the Public Service Act. She may also be subject to a complaint from an independent person to another investigative agency of the State. I am also aware that a breach of the Code or the Public Service Act makes her liable to penalties under the Public Service Act or sanctions if they are enforced. 8. Therefore, I find that her objection has been based on reasonable grounds and I find that there are reasonable grounds for her objection. 9. In doing so I have noted all the submissions, I have noted the case of Rich which discusses the global approach of parties in that Inquest to such a claim that was made in New South Wales based on self-incrimination. That Inquest was based on a killing by a New South Wales policeman of a very mentally unwell man. The issues were very serious but very stark in that matter in my opinion. 10. I have been given submissions by the Honourable Attorney that I should interpret the Section strictly and of course take into account it refers to a question when dealing with such an objection. To interpret the Section strictly as a question, or a short series of questions, on this important and multifaceted topic would be very difficult and distracting to all involved, and in particular the families of the late Mrs Panella, Mr Skeffington and Mr Jessett, who have shown a deep interest in the respective Inquests. 11. I therefore find that the objection in the terms that it’s been raised is reasonable. This is a very multifaceted topic and to proceed in the narrow way, if I can call it that, rather than the global way would border on unworkable. 12. I now inform you Dr Brooks under Section 23A(3) that you need not answer a question or produce a record or document unless required by the Court to do so under Subsection (4). You have made it plain that you are not willing to answer the questions on the topic of ramping. Therefore I have to consider whether I should require you to answer questions on that topic or produce records or documents. I can do so if I am satisfied that any answer to a question or series of questions, record or document, will not incriminate you or make you liable to a penalty under a foreign law. No-one suggests that it is even a remote possibility. -- 14 of 73 -- [2024] SASC 148 B Doyle J 11 13. The second limb I must apply is whether the interests of justice require that you answer the questions or produce records or documents. I have considered that question very carefully. You are a very senior figure at the relevant times of the deaths involved in this Inquest. You have had a full career in public health. It has been submitted or there is an argument in the interests of justice to receive your evidence based on your career alone and your involvement with the Royal Adelaide Hospital, SA Health and the Flinders Medical Centre are overwhelming, in favour of finding that the interests of justice would be served by requiring you to answer those questions. I agree with that line or thought or submission. Therefore I find that it is appropriate. Having done so, the Court is bound under law to give you a Certificate concerning that topic. 32 Prior to actually issuing the Certificate, senior counsel for the Attorney- General sought an adjournment to seek instructions as to whether judicial review proceedings would be commenced. The Coroner considered it would be preferable to issue the Certificate. The Certificate is in these terms: Certificate I, the undersigned Deputy State Coroner, hereby certify that evidence in these proceedings given by Megan Brooks, namely: • answers given in response to a question or a series of questions on the topic of ‘ramping’ (delayed transfer of care) including any records or documents produced by Megan Brooks in response to those questions or as required by the Court is evidence to which section 23A of the Coroners Act 2003 applies. In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence-- (a) an answer given, or a record or document produced, by Megan Brooks in respect of which this certificate has been given; and (b) any information, document or thing obtained as a direct or indirect consequence of Megan Brooks having answered a question, or produced a record or documents, cannot be used against Megan Brooks. However, this certificate does not apply to a criminal proceeding in respect of the falsity of the answer given, or the record or document produced. … Date 26 August 2024 33 The following morning it was confirmed that judicial review proceedings would be commenced. The Coroner agreed not to proceed with Dr Brooks’ evidence. -- 15 of 73 -- [2024] SASC 148 B Doyle J 12 Application for judicial review 34 The application for judicial review is premised upon a contention that the Coroner erred in interpreting and applying s 23A of the Act such that the issue of the Certificate was affected by jurisdictional error. 35 More particularly, the Attorney-General contends that the Coroner misapprehended the statutory scheme and fell into jurisdictional error in four essential respects. The Attorney-General submits that: (1) the Coroner permitted an objection to a foreshadowed body of evidence, rather than requiring an ‘objection’ to a ‘question’. In this regard it is contended that: (a) there was not a ‘question’ asked that the answer to which might have tended to make Dr Brooks liable to a civil penalty; and (b) in circumstances where the only questions Dr Brooks had been asked were by her counsel, she was not, at the relevant time, compelled or potentially compellable to answer any question with the result that any desire not to answer such questions did not amount to an ‘objection’ in the relevant sense; (2) the Coroner applied the wrong test to consider whether there were ‘reasonable grounds’ for Dr Brooks’ objection (and thereby committed jurisdictional error), in that: (a) the Coroner’s ruling did not sufficiently engage with the nexus between the objection made by Dr Brooks and an exposure to civil penalty such as was capable of establishing ‘reasonable grounds’; (b) there was no basis to consider that all answers given by Dr Brooks on the identified topic would involve drawing on (or disclosing) ‘official information’ within the meaning of the Code; and (c) a witness who is directed to answer questions in the course of evidence in the Coroner’s Court would be ‘required by law’ within the meaning of the Code, and therefore not in breach of it; (3) the Coroner misapprehended the statutory test as to when a witness can be required to give evidence by failing properly to interpret and apply what ‘the interests of justice require’ in this case; (4) the Coroner purported to give the Certificate before Dr Brooks had answered any questions. 36 The Attorney-General makes the overarching submission that the Coroner’s ruling focused on the efficiency of proceedings and the potential utility of the -- 16 of 73 -- [2024] SASC 148 B Doyle J 13 foreshadowed body of evidence without the witness having been asked a relevant question or identifying topics (more precisely than ‘ramping’). 37 The claim for relief was founded on a claim of jurisdictional error. The Attorney-General has not submitted that certiorari should issue on the basis of error of law on the face of the record.4 There is no doubt that relief in the nature of certiorari may issue to the Coroner’s Court in respect of jurisdictional error.5 Whether an error of law by an inferior court, such as the Coroner’s Court, is jurisdictional, will depend upon the proper construction of the relevant statute.6 38 Accordingly, essential to the claim for judicial review is an exercise in statutory construction and, in particular, an identification of the proper construction of s 23A of the Act. Approach to statutory construction 39 The Court of Appeal recently summarised the required approach in the following terms.7 [39] The fundamental task of the Court in construing legislation is, of course, to give the words used in the relevant provisions the meaning that the legislature is taken to have intended.8 [40] The contemporary approach to this task is conveniently summarised in the following passage from the reasons of Kiefel CJ, Gordon and Nettle JJ in SZTAL v Minister for Immigration & Border Protection:9 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose10. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense11. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in 4 Cf Rich v Attorney General of New South Wales [2013] NSWCA 419. It is apparent from the first instance decision (Rich v Attorney General of New South Wales [2013] NSWSC 877) that reliance was placed upon error of law on the face of the record. In New South Wales, the ‘face of the record’ includes the reasons expressed by the court or tribunal for its ultimate determination: s 69(4) of the Supreme Court Act 1970 (NSW). In South Australia, the position as described in Craig v South Australia (1995) 184 CLR 163 continues to apply. 5 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 5-6 (Hunt J); R v The Coroner; Ex parte Alexander [1982] VR 731; Korp v Deputy State Coroner [2006] VSC 282; Bell (2020) 138 SASR 467. 6 Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 at [55] (Gordon, Edelman, Steward and Gleeson JJ). 7 Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67 at [39]-[45] (Doyle and Bleby JJA and Blue AJA). 8 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ). 9 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). 10 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]. 11 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. -- 17 of 73 -- [2024] SASC 148 B Doyle J 14 its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [41] Similarly, in CIC Insurance Ltd v Bankstown Football Club Ltd,12 Brennan CJ, Dawson, Toohey and Gummow JJ emphasised that context in its widest sense and statutory purpose are to be considered from the outset, and not only when an ambiguity might be thought to arise on the text. This may include consideration of matters such as the existing state of the law, and the mischief which the legislation was intended to remedy. [42] In the case of South Australian statutes, s 14 of the Legislation Interpretation Act 2021 (SA) expressly provides that the interpretation that best achieves the purpose or object of the Act (even if not expressly stated in the Act) is to be preferred to any other interpretation. [43] Any inconvenience or improbability in the result of a construction may indicate a meaning other than the literal meaning of the relevant provision.13 Whether a particular construction assists or interferes with the coherent operation of the relevant legislation scheme may also be a relevant consideration. [44] At the same time, contextual and purposive indications may not be used to rewrite the legislation; the meaning derived must be consistent with the language in fact used in the relevant legislation.14 Further, the purpose must be one which may be discerned from the legislation itself, read in the context of any relevant extrinsic material. Legislation must not be construed on the basis of some a priori assumption as to the statutory purpose, or as to the desirable reach or operation of the relevant provision.15 [45] In SZTAL v Minister for Immigration & Border Protection, Gageler J described the task as one involving “constructional choice” between the competing meanings that may be available:16 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.17 12 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 13 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 14 Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575 at [15] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). 15 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [26] (French CJ and Hayne J). 16 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [38] (Gageler J). 17 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 557 [66]. -- 18 of 73 -- [2024] SASC 148 B Doyle J 15 40 As the reference to the decision in Certain Lloyd’s Underwriters v Cross18 makes clear, purpose is derived from the text and structure of legislation and not from assumptions about the desired or desirable reach or operation of the relevant provisions. The constructional task is not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.19 Section 23A of the Act and comparable provisions 41 Section 23A of the Act was introduced by the Coroners (Inquests and Privilege) Amendment Act 2021 (SA) (‘Amending Act’). It provides: 23A—Privilege in respect of self-incrimination and penalty (1) This section applies if a person objects to answering a question, or producing a record or document, at an inquest on the ground that the answer, record or document may tend to— (a) in the case of a natural person—incriminate the person in respect of an Australian law or a foreign law; or (b) in any case—make the person liable to a penalty under an Australian law or a foreign law. (2) The Court must determine whether or not there are reasonable grounds for the objection. (3) If the Court determines that there are reasonable grounds for the objection, the Court is to inform the person— (a) that the person need not answer the question, or produce the record or document, 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 person willingly answers the question, or produces the record or document, without being required to do so under subsection (4); or (ii) the person answers the question, or produces the record or document, after being required to do so under subsection (4); and (c) of the effect of such a certificate. (4) The Court may require the person to answer the question, or produce the record or document, if the Court is satisfied that— (a) the answer, record or document does not tend to incriminate the person in respect of, or make the person liable to a penalty under, a foreign law; and (b) the interests of justice require that the person answer the question, or produce the record or document. (5) If the person— (a) willingly answers the question, or produces the record or document, without being required to do so under subsection (4); or 18 (2012) 248 CLR 378. 19 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [65] (Gageler and Keane JJ). -- 19 of 73 -- [2024] SASC 148 B Doyle J 16 (b) answers the question, or produces the record or document, after being required to do so under subsection (4), the Court must cause the person to be given a certificate under this section in respect of the answer, record or document. (6) The Court must also cause a person to be given a certificate under this section if— (a) the objection has been overruled; and (b) after the question has been answered, or the record or document produced, the Court finds that there were reasonable grounds for the objection. (7) A certificate under this section may relate to more than 1 question, record or document (or to a combination of 1 or more questions, 1 or more records and 1 or more documents). (8) In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence— (a) an answer given, or a record or document produced, by a person in respect of which a certificate under this section has been given; and (b) any information, document or thing obtained as a direct or indirect consequence of the person having answered a question, or produced a record or document, cannot be used against the person. (9) However, subsection (8) does not apply to a criminal proceeding in respect of the falsity of the answer given, or the record or document produced. (10) Subsection (8) 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. (11) This section does not derogate from Parts 7 and 8 of the Health Care Act 2008. (12) In this section— Australian law means a law of this State, another State, the Commonwealth or a Territory of the Commonwealth; foreign law means a law of a foreign country or of a part of, or in force in a part of, a foreign country. 42 The introduction of this section, and a related amendment to s 23(5) of the Act as it previously stood, was evidently prompted by the decision in Bell v Deputy State Coroner of South Australia20 (‘Bell’). At the time Bell was decided, s 23(5) provided, by way of exception to the compulsive powers and obligations elsewhere set out in s 23, that: (5) However, a person is not required to answer a question, or to produce a record or document, under this section if— (a) the answer to the question, or the contents of the record or document, would tend to incriminate the person of an offence; or 20 (2020) 138 SASR 467. -- 20 of 73 -- [2024] SASC 148 B Doyle J 17 (b) answering the question, or producing the record or document, would result in a breach of legal professional privilege. 43 Justice Blue held that notwithstanding that s 23(5)(a) was concerned only with the privilege against self-incrimination, and not the privilege against self- exposure to penalty, s 23 did not abrogate common law penalty privilege. He held it was available to a witness at an inquest as a ground for declining to answer a question or produce a document, provided that the witness has claimed and established an entitlement to the privilege in answer to a specific question or request for production of a specified document.21 44 The Amending Act excised the privilege against self-incrimination from s 23(5) (leaving legal professional privilege as the only basis for a complete refusal to answer a question, or to produce a record or document) and inserted a regime for making and resolving claims of self-incrimination and penalty privilege alike (viz, the new s 23A). In delivering the Second Reading Speech, the Attorney- General said:22 It had been previously assumed by those practising in the coronial jurisdiction that penalty privilege was not available to witnesses giving evidence in coronial inquests. It follows, therefore, that the Bell decision has significantly altered this widespread perception of the application of this type of privilege. Without addressing this issue legislatively, there is a real risk that the Coroner will not be able to conduct full and thorough inquests or be able to obtain the information from witnesses that is necessary. The amendments contained in the bill will also bring the South Australian Coroners Act more closely into line with other jurisdictions. All other Australian jurisdictions have provisions that allow the Coroner to require that a witness answer a question even if the evidence would tend to incriminate the person or expose them to a penalty. Western Australia, New South Wales, Victoria and the Australian Capital Territory and the Northern Territory employ a certificate-style system whereby the Coroner issues a certificate to the witness in respect of the relevant incriminating evidence, certifying that it cannot be used in other later proceedings. The provisions in this bill will implement a certificate system that is very similar to one used in those jurisdictions. My department and those exceptionally intelligent people in it, particularly in Legislative Services, have looked at other models but, on recommendation, I considered the different models and I also sought the valuable advice of the Coroner in these matters. In short, in the end the certificate model is the one we are advancing in this bill. The provisions in the bill deal with both the privilege against self-incrimination and penalty privilege in the same way and allow the State Coroner to require the witness to answer a question if it is in the interests of justice, even where the answer tends to incriminate them or expose them to a penalty. The Coroner will then issue a certificate in respect of that evidence, and the evidence will not be able to be used against that witness in any other proceedings, including civil proceedings. The only exception to this is in criminal proceedings in relation to the falsity of that evidence. 21 Bell (2020) 138 SASR 467 at [195]. 22 South Australia, Parliamentary Debates, House of Assembly, 14 October 2020, 3010-3013 (Vickie Chapman, Deputy Premier, Attorney-General, Minister for Planning and Local Government). -- 21 of 73 -- [2024] SASC 148 B Doyle J 18 These amendments will help to improve the quality of evidence that the Coroner is able to obtain during inquests and reflects a sensible and balanced approach, I suggest, by the government to the issues that have recently arisen within the jurisdiction. 45 In New South Wales, the relevant provision is s 61 of the Coroners Act 2009 (NSW). It provides: 61—Privilege in respect of self-incrimination (1) This section applies if a witness in coronial proceedings 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 coroner in the coronial proceedings must determine whether or not there are reasonable grounds for the objection. (3) If the coroner determines that there are reasonable grounds for the objection, the coroner is to inform the witness— (a) that the witness need not give the evidence unless required by the coroner to do so under subsection (4), and (b) that the coroner 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 coroner may require the witness to give the evidence if the coroner 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 coroner must cause the witness to be given a certificate under this section in respect of the evidence. (6) The coroner is also to cause a witness to be given a certificate under this section if— (a) the objection has been overruled, and -- 22 of 73 -- [2024] SASC 148 B Doyle J 19 (b) after the evidence has been given, the coroner finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court within the meaning of the Evidence Act 1995 or before any person or body authorised by a law of the State, or by consent of parties, to hear, receive and examine evidence— (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. (9) A reference in this section to doing an act includes a reference to failing to act. (10) A certificate under this section can only be given in respect of evidence that is required to be given by a natural person. 46 That provision, like its predecessor s 33AA of the Coroners Act 1980 (NSW), adopts a similar structure to that found in s 128 of the Evidence Act 1995 (NSW) and the other uniform evidence legislation provisions,23 which in turn was largely based upon s 57 of the now repealed Evidence Ordinance 1971 (ACT). 47 Section 57 of the Coroners Act 2008 (Vic) adopts a very similar form to s 61 of the Coroners Act 2009 (NSW). Section 51B of the Coroners Act 1997 (ACT) is also similar. 48 Those sections differ from s 38 of the Coroners Act 1993 (NT), which, it has recently been held,24 was modelled on s 47 of the Coroners Act 1996 (WA) and does not extend to penalty privilege. 49 Because there is a significant body of authority considering s 128 (and s 128A, which employs some common terminology to that found in s 128) of the Evidence Act 1995 (NSW), and the materially identical provisions of the Commonwealth, Victorian, Tasmanian, ACT and Northern Territory evidence legislation (‘the uniform evidence legislation’), it is useful to reproduce s 128 as it presently stands. (In South Australia, there is no generally applicable statutory provision respecting self-incrimination or penalty privilege, and s 33(1) of the Evidence Act 1929 (SA) abrogates the privilege against self-incrimination only in respect of a person who is required to answer a question or produce a document or 23 Evidence Act 1995 (Cth); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act 2011 (NT). 24 Rolfe v The Territory Coroner [2023] NTCA 8 (‘Rolfe’). -- 23 of 73 -- [2024] SASC 148 B Doyle J 20 thing in civil proceedings for defamation.25 In Western Australia, there is a certificate provision that applies in respect of self-incrimination.26 In Queensland, the common law position with respect to self-incrimination is essentially preserved.27) 50 Section 128 of the NSW Act provides: 128—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, 25 Section 33(2) provides that any answer given to a question, or document or thing produced, by a natural person in compliance with the requirement is ‘not admissible in evidence against the person in any other action or proceedings’. 26 Evidence Act 1906 (WA) s 11 (see also ss 13, 24). 27 Evidence Act 1977 (Qld) s 10(1). -- 24 of 73 -- [2024] SASC 148 B Doyle J 21 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 a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence— (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. Note — This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an “Australian Court” instead of a “NSW court”. (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. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant— (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. (12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection. (14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth. -- 25 of 73 -- [2024] SASC 148 B Doyle J 22 51 As will be explained, sub-ss (8) and (9) were inserted in response to the decision of the High Court in Cornwell v The Queen (‘Cornwell’).28 Sub-section (10) has no equivalent in the South Australian, New South Wales or Victorian coronial legislation, for obvious reasons. It reflects the idea that a defendant who has decided, notwithstanding the right to silence, to give evidence, cannot sensibly insist on a privilege against self-incrimination.29 That is an idea that has been reflected in legislation since the time when reform was made to the non- competence of an accused person in a criminal trial.30 52 In common with s 61 of the Coroners Act 2009 (NSW), s 57 of the Coroners Act 2008 (Vic) and s 128 of the uniform evidence legislation, s 23A of the Act: • contemplates a person objecting to ‘answering a question, or producing a record or document, at an inquest’ (in the case of the comparable legislation, the objection is to ‘giving particular evidence, or evidence on a particular matter’); • obliges the Court to determine whether or not there are ‘reasonable grounds’ for the objection; • contemplates that, if so, the person is to be informed that they need not ‘answer the question, or produce the record or document’ (or, in the case of the comparable legislation, ‘give the evidence’), unless required to do so under a later sub-section; • contemplates further that the person will be informed that the Court will give them a certificate if they ‘willingly [answer] the question, or [produce] the record or document’ (or, in the case of the comparable legislation, ‘willingly [give] the evidence’) without being required to do so; • contemplates further that the Court may ‘require’ the person to ‘answer the question, or produce the record or document’ (or, in the case of the comparable legislation, ‘give the evidence’) if the Court is satisfied of two matters, relevantly including that ‘the interests of justice require’ that the person do so; • provides that where the person has willingly answered the question or produced the record or document (or, in the case of the comparable legislation, given the evidence) or has done so after being required to do so under the relevant sub-section, they will be given a certificate under the 28 (2007) 231 CLR 260. 29 In Clayton Utz (a firm) v Dale (2015) 47 VR 48 at [165], Tate JA (with whom Ashley JA agreed) referred to this as involving waiver. 30 See Criminal Evidence Act 1898 (UK) s 1(e) and Evidence Act 1929 (SA) s 18(1)(d). An accused remains not competent to give evidence as a witness for the prosecution. For the position in other States and Territories, see Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107 at [166] (Jagot J). -- 26 of 73 -- [2024] SASC 148 B Doyle J 23 section ‘in respect of the answer, record or document’ (or, in the case of the comparable legislation, ‘in respect of the evidence’); • provides that in any proceeding in a court of the (relevant) State or Territory (or in the case of the Commonwealth legislation, any Australian court), or before any person or body authorised by a law of the (relevant) State or Territory, or by consent of parties, to hear, receive and examine evidence: (a) ‘an answer given, or a record or document produced’ (or, in the case of the comparable legislation, ‘evidence given by the person’) in respect of which a certificate under the section has been given; and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having answered a question, or produced a record or document (or, in the case of the comparable legislation, given evidence). That preclusion does not apply to a criminal proceeding in respect of the falsity of the answer given, or record or document produced (or, in the case of the comparable legislation, the falsity of the evidence); and • provides that the preceding provision 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. 53 There are three main differences31 between the language with which s 23A of the Act is constructed and the comparable legislation. The first has been noted. It is that the South Australian provision refers to an objection ‘to answering a question, or producing a record or document, at an inquest’, whereas the comparable legislation refers to an objection to ‘giving particular evidence, or evidence on a particular matter’. Section 128 is concerned with evidence to be adduced in court, and not ancillary pre-trial civil or criminal processes such as discovery or subpoenas.32 This difference flows through the balance of the provisions of each section. 54 The second, related, difference, is that s 23A(7) of the Act provides that a certificate may relate to ‘more than 1 question, record or document (or to a combination of 1 or more questions, 1 or more records and 1 or more documents). There is no equivalent sub-section in the comparable legislation. 55 The third concerns the phrasing of the first sub-section of s 23A which articulates the ground upon which an objection may be made. The comparable legislation identifies the ground as being that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law 31 One further difference between s 23A of the Act, on the one hand, and s 61 of the Coroners Act 2009 (NSW) and s 33AA of the Coroners Act 1980 (NSW) on the other, may be noted. In the NSW legislation, there is and was a separate provision to the effect that except as otherwise provided by the Act, a witness who is a natural person cannot be compelled to answer questions which might tend to incriminate them or make them liable to a civil penalty: see s 58(2) of the Coroners Act 2009 (NSW) and s 33 of the Coroners Act 1980 (NSW). 32 See s 131A of the uniform evidence legislation. -- 27 of 73 -- [2024] SASC 148 B Doyle J 24 or a law of a foreign country, or is liable to a civil penalty. Section 23A of the Act identifies the ground as being that the answer, record or document may tend to incriminate the person in respect of an Australian law or a foreign law, or make the person liable to a penalty under an Australian law or a foreign law. It will be necessary to return to the question whether there is a significance in this different phrasing. 56 Two general observations may be made before considering the more difficult questions of construction requiring resolution. 57 First, the provisions deal both with the privilege against self-incrimination and penalty privilege. Whilst the content of the interests of justice inquiry might differ according to the privilege involved, it seems likely that the sections should be construed as applying in a procedurally consistent manner irrespective of the privilege invoked. For that reason, whilst I will canvass some aspects of penalty privilege, the approach taken to the construction of the provisions must be one which is also suitable having regard to the fact that they concern self-incrimination privilege, the fundamental status of which is not in question.33 58 Secondly, the provisions deal with the two privileges in a fashion that is quite different to the position at common law.34 At common law, where the privileges were available, they operated as a basis to resist compulsion with the result that the relevant evidence would not be given, or the document would not be produced. By contrast, under these provisions, where the Court is satisfied there are reasonable grounds for the objection, three possibilities arise. First, the witness may decide, with the benefit of the certificate, to give the evidence (or produce the document) without being required to do so. Secondly, the Court may decide that it is in the interests of justice that they be required to do so, and so direct. Thirdly, the Court may decide, for reasons including35 that it is not in the interests of justice to do so, that the witness should not be required to give the evidence or produce the document.36 33 Sorby v The Commonwealth (1983) 152 CLR 281 (‘Sorby’); Reid v Howard (1995) 184 CLR 1; cf Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at [129] (Kirby J, dissenting), referring to the lesser status of penalty privilege. 34 In Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 at [85], Edelman J described s 128 as involving a ‘radical change to the operation of the common law privilege’. 35 Seemingly, the overarching discretion that the Court has, subject to satisfaction or non-satisfaction of the specified criteria, appears to be one to which the deferential standard of appellate review associated with House v The King (1936) 55 CLR 499 applies: Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 at [3] (Kiefel CJ, Gageler and Gleeson JJ), in respect of s 128A of the Evidence Act 1995 (Cth). 36 In that respect it differs from provisions such as cl 8(5) of Schedule 2 to the Independent Commission against Corruption Act 2012 (SA) and s 597(12A) of the Corporations Act 2001 (Cth), pursuant to which a form of protection against use is conferred but where the claim of privilege never provides a basis to refuse to answer the question. Perhaps for that reason it has been said that the latter section is ‘better understood as displacing [the] privilege but substituting a statutory exclusion of evidence in the specified circumstances’: Re Vista Capital Pty Ltd (in liq) (2013) 93 ACSR 163 at [9] (Black J). -- 28 of 73 -- [2024] SASC 148 B Doyle J 25 59 It will be necessary to return to the considerations that may inform the ‘interests of justice’, but they include, at least, the importance of the evidence in the proceeding, and the extent of the protection (or shortfall in the protection) offered by the certificate.37 Speaking generally for the moment, it would seem consistent with the structure of the provision that it be interpreted and applied in a fashion that will facilitate the Court making the ‘interests of justice’ assessment on an informed basis. Penalty privilege and self-incrimination privilege 60 This action for judicial review is concerned with the application of s 23A of the Act in the context of exposure to civil penalty. 61 Although the text of s 23A must be closely considered, an understanding of the underlying concept of penalty privilege, including its relationship with self- incrimination and other privileges, provides the context for, and may inform the purpose of, the section.38 62 Penalty privilege has been recognised in curial proceedings since at least the sixteenth century39 and, although it has often been considered together with the privilege against self-incrimination and the privilege against exposure to ecclesiastical censure, the so-called trilogy of privileges are distinct from one another.40 For these purposes, a penalty includes not only a penalty that might be imposed under statute in a civil matter (ie, a ‘civil penalty’) but also an order for disqualification of a person from acting as a company director,41 or an order disciplining an officer or public servant, including by way of reduction in rank or dismissal.42 63 The self-exposure to penalty doctrine originated in courts of equity but came to be recognised as a rule of the common law.43 Thus, in Redfern v Redfern,44 Bowen LJ said:45 37 See, eg, Attorney-General (NSW) v Borland [2007] NSWCA 201 at [19] (Handley AJA, Ipp and McColl JJA agreeing); Rich v Attorney General of New South Wales [2013] NSWCA 419 at [39] (Leeming JA, Bathurst CJ and Beazley P agreeing); Kontis v Coroners Court of Victoria [2022] VSC 422 at [159] (O’Meara J). See also Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 at [96] (Edelman J). 38 That the section is concerned with the privileges against self-incrimination and self-exposure to penalty is confirmed by its heading: Legislation Interpretation Act 2021 (SA) s 19(1). 39 Smith v Read (1736) 1 Atk 526, cited in Bell (2020) 138 SASR 467; [2020] SASC 59 at [135] (Blue J). 40 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [13] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 41 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129. 42 Police Service Board v Morris (1985) 156 CLR 397; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; Rich v Attorney General of New South Wales [2013] NSWCA 419 at [9] (Leeming JA, Bathurst CJ and Beazley P agreeing). 43 J D Heydon, LexisNexis Butterworths, Cross on Evidence, vol 1, (at Service 219) [25125]. 44 [1891] P 139. 45 [1891] P 139 at 147. -- 29 of 73 -- [2024] SASC 148 B Doyle J 26 It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure. 64 Despite its long lineage, a question arose in Pyneboard Pty Ltd v Trade Practices Commission46 (‘Pyneboard’) as to its potential application in a non-curial context. The issue was whether it was available in answer to a s 155 notice under the Trade Practices Act 1974 (Cth). The Court held it was not available, with the plurality holding that although they were not prepared to hold the privilege was inherently incapable of applying in non-judicial proceedings, its ultimate availability was a matter of construction, to be undertaken with regard to the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges.47 A similar approach was taken by Gibbs CJ (with whom Wilson and Dawson JJ relevantly agreed) in Police Service Board v Morris.48 65 However, in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission49 (‘Daniels Corporation’) where the question was the availability of legal professional privilege in the context of s 155 of the Trade Practices Act 1974 (Cth), the plurality said that the double negative proposition articulated by the plurality in Pyneboard was not a holding that penalty privilege is available in non-judicial proceedings. Their Honours went on to observe that there seemed ‘little, if any, reason why the privilege should be recognised outside judicial proceedings’, observing that ‘no decision of this Court says it should be so recognised, much less that it is a substantive rule of law’.50 66 That being said, the plurality referred, with apparent approval, to the judgment of Burchett J in Trade Practices Commission v Abbco Iceworks Pty Ltd, in which it was acknowledged, with extensive reference to authority, that the privilege was not limited to curial proceedings in which a penalty or forfeiture was sought.51 The proposition that penalty privilege may apply in curial proceedings irrespective of whether the penalty could be imposed in the proceeding is consistent with later authority.52 That proposition was common ground in Bell,53 46 (1983) 152 CLR 328. 47 (1983) 152 CLR 328 at 342 (Mason ACJ, Wilson and Dawson JJ). 48 (1985) 156 CLR 397 at 403. 49 (2002) 213 CLR 543. 50 (2002) 213 CLR 543 at [31] (plurality). 51 (1994) 52 FCR 96 at 127-129 (Burchett J, Black CJ, Davies and Gummow JJ agreeing), referring, in particular, to R v Associated Northern Collieries (1910) 11 CLR 738 at 742-743 (Isaacs J) and Refrigerated Express Lines (A/asia) v Australian Meat and Livestock Corporation (1979) 42 FLR 204 at 208 (Deane J). 52 See, eg, Re ACPH (No 2) (2012) 93 ACSR 130 at [81] (Robson J); QC Resource Investments Pty Ltd (in liq) v Mulligan [2016] FCA 813 at [19]-[25] (Edelman J); LM Investment Management Ltd v Drake [2017] QSC 34 at [38] (Jackson J); Chardon v Bradley [2017] QCA 314 at [32] (Morrison JA, Fraser and McMurdo JJA agreeing); Construction, Forestry, Mining and Energy Union of Australia v Alfred (2004) 135 FCR 459 at [50] (Marshall J, Wilcox J agreeing). 53 Bell (2020) 138 SASR 467 at [149]. -- 30 of 73 -- [2024] SASC 148 B Doyle J 27 and it was accepted by the Northern Territory Court of Appeal in Rolfe v The Territory Coroner (‘Rolfe’).54 67 There is, as Blue J observed in Bell, a tension between the seriously considered obiter remarks of the plurality in Daniels Corporation and the earlier decisions of Pyneboard,55 Police Service Board v Morris,56 and also Sorby v The Commonwealth.57 It is little wonder, then, that the correct approach to determining the availability of penalty privilege in non-curial proceedings,58 and the basis for distinguishing curial or non-curial proceedings for these purposes,59 has not proved to be a straightforward matter. 68 In my respectful view, it is tolerably clear60 that in considering whether penalty privilege was available in the course of an inquest under the Act prior to the introduction of s 23A, Blue J proceeded on the footing that an inquest was a curial proceeding. He made observations respecting the approach for determining the availability of the privilege in a non-curial context because the parties had made submissions about that matter, but he decided it was not necessary for him to resolve the tension he had identified61. That is consistent with proceeding on the basis that an inquest under the Act is relevantly curial for these purposes. The Northern Territory Court of Appeal took a different view in Rolfe,62 but would have decided the question of the availability of penalty privilege the same way had it been persuaded that an inquest under the Coroners Act 1993 (NT) was relevantly curial.63 69 At all events, s 23A clearly provides, albeit with different consequences to those at general law, for the recognition of a privilege against self-exposure to penalty. 70 In order to resolve contentious questions respecting the application of the provision, it is useful to reflect on the essential nature and concern of the privileges against self-incrimination and self-exposure to penalty, as well as some practical aspects of the way in which, at general law, the privileges are claimed and applied. That is because the parties’ contentions about how and when s 23A applies should be considered against an understanding of the position at general law. 54 [2023] NTCA 8 at [58] (Grant CJ, Barr and Brownhill JJ). 55 (1983) 152 CLR 328. 56 (1985) 156 CLR 397. 57 (1983) 152 CLR 281. 58 See Valantine v Technical and Further Education Commission [2007] NSWCA 208 at [69] (Gzell J, Beazley and Tobias JJA agreeing); cf Migration Agents Registration Authority v Frugtniet (2018) 259 FCR 219 at [52] (Siopis, Robertson and Bromwich JJ) and Rolfe [2023] NTCA 8 at [44] (Grant CJ, Barr and Brownhill JJ). 59 See Rolfe [2023] NTCA 8 at [50]-[53] (Grant CJ, Barr and Brownhill JJ). 60 Cf Rolfe [2023] NTCA 8 at [43] (Grant CJ, Barr and Brownhill JJ). 61 Bell (2020) 138 SASR 467 at [163] (Blue J). 62 Rolfe [2023] NTCA 8 at [50]-[55] (Grant CJ, Barr and Brownhill JJ). 63 Rolfe [2023] NTCA 8 at [59] (Grant CJ, Barr and Brownhill JJ). -- 31 of 73 -- [2024] SASC 148 B Doyle J 28 Essential nature and concern of the privileges 71 First, it is relevant to appreciate that the nature of the privilege against exposure to penalty, as with the privilege against self-incrimination, is that it is a privilege against a compulsory process. The very nature of a privilege is that it constitutes a bar to a compulsory process, and is not a rule of inadmissibility.64 72 Out of court, there is a more general right not to answer questions, whether or not the answers might incriminate the person. The privilege against self- incrimination, however, operates in a context where, subject to the privilege, the person may not otherwise refuse to answer questions put to them, or produce relevant documents or information.65 73 Further, a privilege confers an exemption from a requirement to give particular evidence or from the obligation to produce particular documents. It is associated with, but may be distinguished from, the exemption accorded by law to particular persons from an obligation to give any evidence at all in certain proceedings (that being a question of immunity from compellability or incompetence).66 Strictly it may be correct to say that the taking of an objection based on the privilege against self-incrimination or self-exposure to penalty involves an objection not to the question but to answering the question.67 74 Next, central to the character of the privileges against self-incrimination and self-exposure to penalty is that they exempt a natural person from giving or producing the inculpatory material – they are not immunities from access being had to inculpatory material per se. Thus self-incrimination is not an answer to a warrant permitting seizure of incriminating documents from a person. As Gibbs CJ, Mason and Dawson JJ have said:68 whilst the privilege, apart from any statutory exclusion, would protect a person against a requirement that he produce or identify incriminating documents or reveal their whereabouts or explain their contents in an incriminating fashion, it has no application to the seizure of documents or their use for the purpose of incrimination provided they can be proved by some independent means. The privilege is not a privilege against incrimination; it is a privilege against self-incrimination: see Andresen v State of Maryland (1976) 427 US 463. 64 See, eg, Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 566, 570 (Gummow J). 65 See, eg, Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 526- 527 (Deane, Dawson and Gaudron JJ). 66 J D Heydon, LexisNexis Butterworths, Cross on Evidence, vol 1, (at Service 219) [25005]. The author observes that ‘[t]herefore a witness intending to rely on privilege must respond to the court subpoena and, being called and sworn or affirmed, must object to answer specific questions on a ground which must be made apparent to the court: Gamble v Jackson [1983] 2 VR 334 (FC); Scanlan v Swan [1984] 1 Qd R 21 (FC); Price v McCabe; Ex parte Price (1984) 55 ALR 319 at 325 (Qld FC)’. 67 R v Magistrates Court at Melbourne; Ex parte Cross (Supreme Court of Victoria, Gobbo J, 10 March 1987), referred to in C v National Crime Authority (1987) 78 ALR 338 at 342 (Northrop J). 68 Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393. -- 32 of 73 -- [2024] SASC 148 B Doyle J 29 75 Finally, and relatedly, the privilege against self-incrimination and the privilege against exposure to penalty are concerned with excusing a person from being obliged to discover or reveal that which will subject him to a penalty or criminal punishment: whether that be by way of the giving of an answer or the production of a document. The privileges have not been applied, so far as I am aware, to excuse a person from giving evidence or producing a document where the act of giving evidence, or producing the document, would bring about the commission of an offence that would then subject the person to criminal punishment, or a breach of discipline or some other norm of conduct that would subject the person to a penalty in the relevant sense. 76 In my view, that is consistent with the rationale of the doctrine of self- incrimination being expressed in the maxim nemo tenetur seipsum prodere (or accusare) – no one is bound to betray (or accuse) himself.69 It is designed to protect human dignity; ‘not to provide a shield against conviction but a shield against conviction by testimony wrung out of the mouth of the offender’.70 The privilege against self-exposure to penalty has developed by analogy from that privilege.71 That is to say, the privileges guard against a person themselves being compelled to reveal or assist in the proof of their own wrongdoing and thereby to place themselves in jeopardy; they are not concerned to guard against a person committing wrongdoing by the giving of evidence. 77 Where a question arises as to whether the giving of particular evidence would itself contravene some particular law, the question whether that is so, and if so, what should occur, will require a consideration of the interaction between the law said to be at risk of infringement by the giving of the evidence (or the revelation or statement of the fact) and the interest in the administration of justice in a witness giving relevant evidence (and, if under compulsion, the obligation of the witness to do so) in a legal proceeding. 78 Where, on proper construction, a statute prohibits the giving of the evidence, it may be that that statute applies of its own force to prohibit the giving of the evidence, and no question of privilege will arise. In other cases, where the receipt of evidence would entail a breach of the law, the court’s powers to guard against an abuse of process may be engaged.72 69 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 497-498 (Mason CJ and Toohey J). See also Rich v Australian Securities and Investments Commission (2003) 203 ALR 671 at [322] (McColl JA); Clayton Utz (a firm) v Dale (2015) 47 VR 48 at [118] (Tate JA, Ashley JA agreeing). 70 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 514 (Brennan J), referring to Rees v Kratzman (1965) 114 CLR 63 at 80 and Hammond v The Commonwealth (1982) 152 CLR 188 at 202-203. 71 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 504-505 (Mason CJ and Toohey J). 72 See, eg, Thomas v Nash (2010) 107 SASR 309. Doyle CJ declined to receive evidence of a recording of a conversation made in contravention of s 4 of the Listening and Surveillance Devices Act 1972 (SA) because its publication or communication to the Court would give rise to a breach of the Act and the -- 33 of 73 -- [2024] SASC 148 B Doyle J 30 79 However, it may be that, on proper analysis, if the evidence truly is given under compulsion, no offence will have been committed, or a defence may be available. Indeed, even absent an element of compulsion, it may be noted that in R v Skinner,73 Lord Mansfield said:74 … neither party, witness, counsel, jury or Judge, can be put to answer, civilly or criminally, for words spoken in office. 80 Whilst examples of the application of this principle may not be easy to identify,75 the dictum has been generally accepted as authority for the proposition that, perjury, contempt, or other offences designed to protect the substantive administration of justice aside, statements made in the course of and with respect to judicial proceedings may not be made the subject of a criminal prosecution based directly on the making of such statements.76 81 As concerns private law duties that might be breached by the giving of evidence, a witness has an immunity from civil suit.77 Further, private law duties, such as a duty of confidentiality, may be subject to an implied exception where disclosure would otherwise be required by law,78 or where it is relevant to a criminal proceeding, or where its enforcement would be contrary to the administration of justice.79 A contract for reward not to give evidence may be void (or perhaps unenforceable) as against public policy.80 A code of ethics may also be found, on analysis, to yield to the law of the land, with the result that a person required by a court to answer a question does not commit a breach of an ethical obligation to preserve confidentiality.81 In other contexts, the law may recognise a privilege from disclosure that prevails over an obligation to give evidence of a protected communication.82 Privileges of that kind are not animated by a desire to commission of an offence. His Honour said (at [55]) that he ‘cannot allow the tender of evidence when to do so would give rise to an offence under the Act’. 73 R v Skinner (1772) Lofft 54; 98 ER 529. 74 R v Skinner (1772) Lofft 54 at 56; 98 ER 529 at 530. The principle was endorsed by a unanimous Court of Exchequer Chamber constituted by ten judges in Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 264 (Kelly CB, Martin, Bramwell, Channell, Pigott and Cleasby BB, Byles, Keating, Brett and Grove JJ). 75 Jamieson v The Queen (1993) 177 CLR 574 at 582 (Deane and Dawson JJ), at 591 (Toohey and McHugh JJ). 76 R v Beydoun (1990) 22 NSWLR 256 at 260 (Hunt J, Wood and McInerney JJ agreeing); Jamieson v The Queen (1993) 177 CLR 574 at 582 (Deane and Dawson JJ), 594-595 (Gaudron J), cf 591 (Toohey and McHugh JJ). See also Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268 at [41]-[42] (Beazley JA, Mason P and Young CJ in Eq agreeing). 77 Cabassi v Vila (1940) 64 CLR 130. 78 In a passage referred to by Stephen J in Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 at 488, Diplock LJ said, in Parry-Jones v Law Society [1969] 1 Ch 1 at 9, that a contractual duty of confidence ‘is subject to, and overridden by, the duty of any party to that contract to comply with the law of the land’. No private undertaking can be regarded as an excuse for a failure to comply with the legal obligations imposed upon all witnesses to answer relevant questions: Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 117-118 (King CJ, Zelling and Wells JJ agreeing). 79 A v Hayden (No 2) (1984) 156 CLR 532 at 553-556 (Mason J). 80 Collins v Blantern (1765) 2 Wils KB 341 at 350; 95 ER 847 at 852 (Wilmot CJ), referred to in A v Hayden (No 2) (1984) 156 CLR 532 at 554 (Mason J). 81 See, eg, Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31 at 51-52 (Perry J). 82 See, eg, McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 87 (Rich J). -- 34 of 73 -- [2024] SASC 148 B Doyle J 31 protect the person from censure for breach of their obligation of confidentiality but by the law’s recognition that the importance of preserving confidences outweighs the importance in the administration of justice in ascertaining the truth. Where there appears to be an apparent conflict between two statutory provisions made by the same Parliament, one of which appears to preclude disclosure or communication of a matter, and the other of which entitles a court or body to require the answer to a question, before reaching the conclusion that the two laws would, absent some privilege, expose the person to conflicting obligations, it would be appropriate to seek a harmonious construction of the two laws.83 82 The point of present significance is that the problem, if there is one, that arises where a witness fears not so much that the giving of the evidence will tend to reveal past conduct which might expose them to prosecution or civil penalty, but rather that by giving evidence they will commit or engage in conduct that would render them so exposed, is not one which, at common law, has hitherto been mediated or resolved through the prism of the privileges against self-incrimination or self- exposure to penalty. 83 In Registrar, Supreme Court of South Australia v Zappia (‘Zappia’),84 Bleby J said:85 The privilege protects the person from being required to make admissions or statements concerning past conduct which might later be able to be used against that person on prosecution for a criminal offence. 84 One possible exception to the availability of the privilege as relates to past conduct is the situation considered in Zappia itself, but it is not an exception which suggests that the privilege is available where the giving of evidence would involve the commission of an offence. In Zappia, Bleby J considered that a witness cannot under cross-examination claim a privilege against self-incrimination for perjury in respect of evidence given by him or her earlier in the same proceeding. The ‘exception’ is best understood as a species of waiver. As Bleby J explained:86 Once a witness gives sworn evidence-in-chief or makes a voluntary sworn statement in proceedings knowing it to be false, he does so knowing that he exposes himself to submission to cross-examination by any proper means designed to elicit the truth in those proceedings. That includes a process which may expose the witness to a charge of perjury. He effectively waives his right to claim the privilege in those proceedings. By making a knowingly false statement on oath he knows that he is submitting himself to the due process of the court in ascertaining the truth in those proceedings. 85 It may be noted that s 23A(9), and the equivalent provision in the uniform legislation, also limits the effect of a certificate where evidence given under the certificate is alleged to be false. 83 Mark Leeming, Resolving Conflicts of Law (Federation Press, 2011) at [3.2]. 84 (2003) 86 SASR 388. 85 (2003) 86 SASR 388 at [62] (emphasis added). 86 (2003) 86 SASR 388 at [72]. -- 35 of 73 -- [2024] SASC 148 B Doyle J 32 Practical operation of the privileges 86 In Bell, Blue J identified the following propositions about claiming and establishing privilege in a curial context and said that they applied equally to penalty privilege and self-incrimination privilege:87 1 A witness who wishes to rely on the privilege must make a specific claim to entitlement to the privilege as a ground for not answering a question or producing a document (although the claim can be made by a lawyer representing the person on the person’s behalf).88 2 Generally, the privilege must be claimed in respect of individual questions and documents rather than a blanket objection being made to answering any questions or producing any documents.89 3 The onus lies on a person claiming the privilege to establish an entitlement to it.90 4 To establish the privilege, the apprehended danger must be real and appreciable; a mere assertion by a witness on oath of a risk is insufficient.91 In an oft-cited passage, Cockburn CJ in R v Boyes92 said: we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things – not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.93 5. The claim must be made in good faith for the purpose of protecting the person against the apprehended danger and not for a collateral purpose.94 87 In Zappia, Bleby J expressed his agreement95 with the following statement by Kirby P in Accident Insurance Mutual Holdings Ltd v McFadden:96 Just as the Court must protect the privilege, it must also make sure that the rule is not abused; but applied only where its invocation is justified: see Triplex Safety Glass Co Ltd 87 Bell (2020) 138 SASR 467; [2020] SASC 59 at [150]. 88 Spokes v Grosvenor & West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124 at 132-133 per Lord Esher MR; R v Coroner; Ex parte Alexander [1982] VR 731 at 736 per Gray J; Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478 at 489-490 per Wilcox J; C v National Crime Authority (1987) 78 ALR 338 at 342-343 per Northrop J; Authors Workshop v Bileru Pty Ltd (1989) 88 ALR 211 at 216 per Lockhart J. 89 Spokes v Grosvenor Hotel Co Ltd [1897] 2 QB 124 at 132 per Lord Esher MR and 133 per AL Smith LJ; Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478 at 490 per Wilcox J; C v National Crime Authority (1987) 78 ALR 338 at 342-343 per Northrop J. 90 Deputy Commissioner of Taxation v Alvaro (1990) 21 ATR 726 at 734 per O’Loughlin J. 91 R v Boyes (1861) 121 ER 730 at 760-761 per Cockburn CJ (delivering the judgment of Cockburn CJ, Crompton, Hill and Blackburn JJ); Brebner v Perry [1961] SASR 177 at 180-181 per Mayo J; R v The Coroner; Ex parte Alexander [1982] VR 731 at 736 per Gray J; Deputy Commissioner of Taxation v Alvaro (1990) 21 ATR 726 at 735 per O’Loughlin J. 92 (1861) 1 B & S 311 (121 ER 730). 93 R v Boyes (1861) 1 B & S 311 at 330. 94 Adams v Lloyd (1858) 3 H & N 351 at 362 per Pollock CB; Brebner v Perry [1961] SASR 177 at 182- 183 per Mayo J; Re National Safety Council of Australia (Vic) (in liq) (1989) 1 ACSR 293 per Beach J. 95 (2003) 86 SASR 388 at [12]. 96 (1993) 31 NSWLR 412 at 423. -- 36 of 73 -- [2024] SASC 148 B Doyle J 33 v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403. The proper procedure in a claim for privilege is to object to each question as it is asked: see Ex parte Reynolds; Re Reynolds (1882) 20 Ch D 294 (at 294); Brebner v Perry [1961] SASR 177 at 180. It is not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection from the privilege. Such a refusal may amount to a contempt of court: see Smith v The Queen (1991) 25 NSWLR 1 at 9. Nevertheless, a point will be reached in questioning where it will be unnecessary to persist with an entire cross-examination which is clearly futile by reason of the invocation of the privilege against self-incrimination. To demand a tedious repetition of questions, rebuffed every time by a claim of privilege which is upheld, would be pointless … 88 As was noted earlier, at general law, in the context of testimonial evidence, privilege against self-incrimination provides a basis for objection to answering a question. That will logically entail that a question will have been asked, and, save for exceptional cases, that the objection must be taken on a question-by-question basis. As Wilcox J said in Warman International v Envirotech Australia Pty Ltd:97 The first principle is that the privilege may be claimed only at the point at which the risk of actual incrimination arises. Thus it is not a proper answer to a summons to administer interrogatories that they may include a question, the answer to which may disclose criminality. The objection must be taken to the specific question, when its tendency may be considered … 89 In C v National Crime Authority,98 Northrop J considered a claim based on s 30(4)(a) of the National Crime Authority Act 1984 (Cth), which provided that it was a reasonable excuse for a person to answer a question if the answer to the question might tend to incriminate him. His Honour considered that whether a ‘blanket objection’ was permissible was not resolved simply by the fact that the section referred to ‘a question’, since the singular included the plural.99 It was necessary to consider the question asked in order to determine whether, on the face of the question, or in light of any argument or evidence relied upon by the person, it could be seen that there were reasonable grounds for the objection.100 His Honour observed that in that case only preliminary questions had been asked and ‘[n]o specific question had been asked which itself revealed that the material sought was “of a criminal and therefore incriminating nature”’ and nor was any material before the Authority ‘which suggested that any line of questions which, on its face was innocent, sought “material which may form a link in a chain of incriminating material”.’ He considered the decision in R v Coroner; Ex parte Alexander was not on all fours. It could not be said that any answer would tend to incriminate the witness.101 90 In R v Coroner; Ex parte Alexander,102 the Court could not conceive of any question which could be seen to be free of self-incriminating potential,103 and in 97 (1986) 11 FCR 478 at 490. 98 (1987) 78 ALR 338. 99 (1987) 78 ALR 338 at 341. 100 (1987) 78 ALR 338 at 342-342. 101 (1987) 78 ALR 338 at 343. 102 [1982] 2 VR 731. 103 [1982] 2 VR 731 at 737-738. -- 37 of 73 -- [2024] SASC 148 B Doyle J 34 the particular circumstances of that case, an order was made that the Coroner excuse the witness. 91 In Sogelease Australia Ltd v Griffin,104 Palmer J affirmed that the general rule was that a ‘blanket objection’ could not be taken on the ground of privilege against self-incrimination, but said that the general rule was not immutable. He went on:105 Its rationale is to prevent persons from abusing the privilege by invoking it too readily to avoid making disclosures which may well be prejudicial but do not really have a tendency to incriminate. … there may be cases in which the Court can readily see from the surrounding circumstances that all disclosures within a certain area of enquiry are likely to have a tendency to incriminate. In such a case, there is no point in requiring the person claiming the privilege to perform the tedious ritual of objecting separately to all the questions asked or all the disclosures sought: the Court will permit and uphold a blanket objection: see eg Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 423 per Kirby P. The statutory procedure 92 Against that background of the essential nature of the privileges and the general law’s approach to the making and consideration of claims of privilege, it is necessary to consider the proper construction of s 23A of the Act, recognising that for various reasons106 its construction will be informed but not necessarily controlled by the approach taken with respect to the privileges at general law. 93 As has been observed, to a significant extent, the drafting reflects the model found in the uniform evidence legislation and the Coroners Act 2009 (NSW). 94 In considering the proper construction of s 23A, and paying due regard to any differences in the statutory text, it will therefore be helpful to have regard to the authorities which have considered the approach required under that legislation to: • any requirement that the objection be raised in respect of a question or particular questions; • any requirement of compulsion that may attend the availability of a claim (so as to satisfy the requirement that there be an ‘objection’); • the nature of the jeopardy which may provide the basis for an objection; • the degree of risk of jeopardy required to be found (before there will be ‘reasonable grounds’ for the objection); and 104 [2003] NSWSC 178. 105 [2003] NSWSC 178 at [17]-[18]. 106 These include that, as earlier observed, where reasonable grounds for objection are established, the privileges operate very differently under s 23A of the Act. -- 38 of 73 -- [2024] SASC 148 B Doyle J 35 • the nature of the ‘interests of justice’ inquiry. Requirement that an objection be in respect of a question or questions 95 I have earlier described the position that applied at general law where a claim of privilege against self-incrimination or self-exposure to penalty has been relied upon as a basis for refusing to answer a question. Generally speaking, the required approach is that objection is taken to particular questions, and on a question-by- question basis, rather than to ‘topics’ in an abstract way. 96 As has been noted, the uniform evidence legislation, and the Coroners Act 2009 (NSW), share the same basic structure as s 23A of the Act, but those provisions contemplate objection being taken to the witness ‘giving particular evidence, or evidence on a particular matter’. In its original form, s 128 of the uniform evidence legislation referred only to an objection to ‘giving particular evidence’. So did s 33AA of the Coroners Act 1980 (NSW). 97 In Rich v Attorney General for New South Wales (‘Rich’),107 Leeming JA observed that that formula of words reflected ‘the traditional approach at general law’,108 referring to the passage in the judgment of Kirby P in Accident Insurance Mutual Holdings Ltd v McFadden109 set out earlier in these reasons. He noted, however, that following the recommendations by the Australian and New South Wales Law Reform Commissions in 2005 that a more flexible approach be adopted, the words ‘evidence on a particular matter’ were added.110 98 Despite this, he expressed some reservations about the fact that, in the matter before him, the question whether Senior Constable Rich should be excused from giving evidence or should, in the interests of justice, be required to give evidence with the benefit of a certificate, had been dealt with on a global basis, having regard to the ‘global’ nature of the objection that had been made. There was no real doubt in that matter that there were reasonable grounds for the objection but Leeming JA observed that the interests of justice might present differently depending on the precise nature of the questions asked. Because no issue was taken on appeal about the propriety of the global approach, he did not need to decide whether the approach was correct, nor examine what was said in Correll v Attorney-General (NSW) (‘Correll’).111 He noted, however, that one consequence of an ‘in globo’ approach having been adopted was that the applicant could make a further application, and the Coroner could revisit the question, in respect of some particular topic of evidence. What Leeming JA meant by that was that the Coroner might decide not to require the witness to answer some particular questions. His Honour did not need to consider the difficulty that might arise if, in respect of a 107 [2013] NSWCA 419. 108 [2013] NSWCA 419 at [46] (Leeming JA, Bathurst CJ and Beazley P agreeing). 109 (1993) 31 NSWLR 412 at 423. 110 Uniform Evidence Law (ALRC Report No 102; NSWLRC Report No 112, December 2005) [15.95], recommendation 15.7. 111 [2007] NSWSC 1385 at [55] (Bell J). -- 39 of 73 -- [2024] SASC 148 B Doyle J 36 question falling within the apparent scope of the certificate, it was considered there was not a proper basis for the claim of privilege. 99 As the Attorney-General has submitted on this appeal, both Rich and Correll were cases in which the view was expressed that any questioning of the witness on a topic relevant to the inquest necessarily had the potential tendency to incriminate the witness. It may also be noted that, in Correll, Bell J placed some significance on the fact that the objection had been made under s 33 (not s 33AA). 100 In my view, it is significant that Parliament chose not to adopt the concept, found in the uniform evidence legislation, of an objection to the giving of particular evidence, or evidence on a particular matter, and adopted instead the concept of an objection to answering a question. 101 I do not overlook that the singular includes the plural, so that s 23A(1) can be read as applying if a person objects to answering questions, but that is neutral on the question whether a separate objection is required in respect of each question. 102 Sub-section (3) provides that if the Court determines that there are reasonable grounds for the objection, the Court must inform the person of certain things and then, under sub-s (4), the Court may (assuming the witness has not willingly answered the question) require the person to answer ‘the question’. Implicit in that structure is that the Court may also determine not to require the person to answer ‘the question’. 103 It can be accepted that there will be cases, as there were at general law, where it can be concluded that any relevant question that might be asked of a witness would be one in respect of which there would be reasonable grounds for an objection. 104 But the considerations which may bear on the appropriate course to be adopted if there are reasonable grounds for an objection appear to be, as Leeming JA observed in Rich, inherently question-sensitive. Indeed, the witness is given an option under sub-ss 23A(3)(b)(i) and (5)(a) in respect of which there were reasonable grounds for objection, to give the evidence willingly (with the benefit of a certificate). If the section were to be construed on the basis that a singular objection in respect of multiple (foreshadowed but not specifically articulated) questions may be taken and dealt with on a global basis, that would seem to deny the facility that the section creates for a differential approach to be taken, by the witness and the Court, to the particular questions. 105 It is true that s 23A(7) expressly provides that a certificate may relate to more than one question, record or document, or to a combination of them, but that does not suggest, and in any case does not strongly suggest, that the section contemplates that the Coroner’s Court will deal with a single objection in respect of multiple questions. It likely reflects the fact that it would be a significant administrative burden to produce a separate certificate in respect of each question -- 40 of 73 -- [2024] SASC 148 B Doyle J 37 which is either willingly answered or required to be answered following the Court’s satisfaction that reasonable grounds exist for the objection. The structure of the section makes apparent that the certificate issues after the relevant answer is given. It would plainly be convenient in the ordinary course to produce a single certificate at the conclusion of a witness’ evidence which identifies the answers to the questions which are the subject of it. 106 I accept that the necessity to make objection on a question-by-question basis is more cumbersome in the context of s 23A than it is at general law, where the successful claim stops the process dead in its tracks. Within the framework of s 23A, a question-by-question approach would appear to require, in addition to a consideration of whether there are reasonable grounds for the objection, the provision of information to the person, the giving to them of an opportunity to answer willingly, and then, if that opportunity is not taken up, a further ruling about the interests of justice. 107 The inconvenience that this may cause is a matter that may bear on the proper construction of the section, because a construction which best achieves the evident purpose or object of the Act may be preferred.112 In the end, though, I am not persuaded that it carries the constructional day. First, there are a variety of ways in which the Parliament could have made clear that the Court could and should determine the grounds for and consequence of an objection in respect of evidence on particular topics or issues, if that had been intended.113 The potential for the section to be interpreted as operating on a question-by-question basis can hardly have escaped Parliament’s consideration, particularly given that in the very decision that prompted the amendment to the Act, Blue J had drawn attention to the general law position. 108 Secondly, for reasons that I will come to, the occasion for making an objection under s 23A is, in my view, more confined than appears to have been assumed in the course of submissions to the Coroner. The frequency with which objections are likely to be made is therefore less than may have appeared. 109 Thirdly, it would plainly be permissible and appropriate, particularly where a witness is represented, to adopt a short hand approach to the procedure, so as to avoid needless repetition. The stipulation that the Court ‘inform’ the witness of the matters in s 23A(3) where there are reasonable grounds for the objection in the 112 Legislation Interpretation Act 2021 (SA); Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [100] (Nettle J). This is likely what the Coroner was bringing to bear in paragraph 10 of the ruling. Where a constructional choice is open, it is not wrong to consider the extent to which the rival constructions would better cohere with or advance the evident purpose of the Act and the scheme created by it. It can be inferred from s 24 of the Act that inquests are generally speaking intended to be conducted without undue technicality and sensitively to the impact of delay upon those who are particularly interested in the proceeding. Beyond this, however, the particular impact that a posited construction is likely to have on the particular relatives of the deceased persons the subject of a particular inquest does not bear on the construction of, as distinct from the manner of exercise of any discretion arising under, the Act. To the extent paragraph 10 of the ruling might be read as suggesting otherwise, it is wrong. 113 See, eg, Independent Commission Against Corruption Act 1988 (NSW) s 38. -- 41 of 73 -- [2024] SASC 148 B Doyle J 38 case of a second and subsequent objections, would be satisfied without the need for verbatim repetition. Submissions about the interests of justice need not be repeated ritualistically after each question. All that is necessary is that if and to the extent that questioning moves in a different direction or addresses a different topic, there is an opportunity for any submissions to be tailored accordingly. 110 Fourthly, the alternative construction is also not without its practical difficulties. If an objection in respect of topics is entertained and resolved on the basis that the Court will require the witness to answer all questions in respect of the topic, a problem may be created in ascertaining whether future questions are within or outside the identified topic. 111 Finally, if the interests of justice are to be considered on a global basis by reference to questions on a topic, the approach to be taken will have to be one which has some regard to the wide range of topics that might be asked by any person participating in the inquest. The Court may have no idea about the nature, extent or intensity of the questions that will actually be asked. Yet it will have to make a ruling that accommodates those possibilities. A global approach may introduce an unwarranted requirement of prognostication, and may yield rulings based on a suite of contemplated questions that end up bearing no resemblance to the questions asked. 112 I would therefore hold that in circumstances where, at least generally, the common law required an objection to be taken on a question-by-question basis, and where the South Australian Parliament has adopted language which essentially reflects that approach, but contemplates the Court undertaking an inquiry which, of its nature, is even more likely to be question-sensitive than is the inquiry whether there are reasonable grounds for the objection, the section should be construed on the basis that objections are to be taken on a question-by-question basis. 113 More fundamentally, however, I would hold that before the Court may embark upon the process provided for by s 23A, there must be at least be a question asked, the answer to which the witness claims may tend to incriminate them or make them liable to a penalty in the relevant sense. Questioning which merely elicits that the witness would object to questions which have that tendency falls short of that requirement. Whatever flexibility there may have been at general law if objection was taken in the course of questioning prior to the relevant (but foreshadowed) question being asked, s 23A appears to me to be clear. The same should follow in respect of an objection to the production of a record or document. An objection can only be made, and ruled upon within the framework of s 23A, if there is otherwise an occasion for the compulsory production of the record or document. Requirement of element of compulsion attending to a question objected to 114 As it concerns testimony, s 23A of the Act, like s 128 of the uniform evidence legislation, is premised upon the taking of an objection. -- 42 of 73 -- [2024] SASC 148 B Doyle J 39 115 What is the essential meaning of and requirement for an objection? Does a witness who ‘wants’ to give the evidence, but give it with the protection of privilege, ‘object’ to answering the question in the relevant sense? 116 That question was considered, but not decided (because it had not been the subject of a submission on the part of the Director of Public Prosecutions), by the plurality in Cornwell.114 The plurality said:115 This characterisation raises a question whether s 128(1), and hence s 128 as a whole, applies where a witness sets out to adduce in chief evidence revealing the commission of criminal offences other than the one charged. A criminal defendant might wish to present an alibi, the full details of which would reveal the commission of another crime. A civil defendant might wish to prove the extent of past earnings, being earnings derived from criminal conduct. This raises a question whether witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross- examination about some crime connected with the facts about which evidence is given in chief. The view that the accused’s claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word ‘objects’ in s 128(1). It also strains the word ‘require’ in s 128(5) — for how can it be said that a defendant-witness is being ‘required’ to give some evidence when his counsel has laid the ground for manoeuvres to ensure that the defendant-witness’s desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be ‘asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged’, which implies that the protection of the accused’s position in chief or in re-examination was a matter between the witness’s counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only. 117 One consideration not adverted to by the plurality in that analysis is that s 128(3)(b)(i) (like s 23A(3)(b)(i) of the Act) contemplates that following a ruling by the Court that there were reasonable grounds for the objection, the witness might elect willingly to give the evidence (with the benefit of a certificate that will later be issued in respect of it). That tends to suggest that the meaning of ‘object’ in this context likely embraces an objection to giving the evidence without the benefit of a certificate. Put another way, a witness who ‘wants’ to give the evidence but only with the protection of a certificate is not, for that reason alone, precluded from ‘objecting’. 118 Intermediate appellate courts considering this issue have not therefore adopted the view, possibly suggested by the plurality’s obiter observations in Cornwell, that a witness who wishes to give evidence subject to the protection of 114 (2007) 231 CLR 260. 115 (2007) 231 CLR 260 at [111]-[112] (Gleeson CJ, Gummow, Heydon and Crennan JJ) (citations omitted). -- 43 of 73 -- [2024] SASC 148 B Doyle J 40 a certificate may never engage the provision, nor have they adopted the position that the provision is incapable of applying to evidence in chief. Rather, as will be explained, the provision has been construed as being engaged only where there is an element of compulsion that, subject to the operation of the section, would or would potentially require the evidence to be given (irrespective of the witness’ subjective preparedness to give the evidence with the benefit of a certificate). 119 Applying that approach, a party witness giving evidence in chief has generally not been treated as subject to compulsion or potential compulsion of the requisite kind in respect of their evidence in chief, but a non-party witness who is giving evidence in chief, and who has no practical ability to cause the questioner to withdraw the question, may engage the section by ‘objecting’ to answering the question. 120 It is necessary to consider these authorities with a view to deciding whether they apply to s 23A of the Act and if so, ultimately, whether Dr Brooks was, when being questioned by her counsel Mr Kalali, subject to a degree of compulsion or potential compulsion so as to permit the conclusion that she was in a position to ‘object’ to questions asked by him. 121 Prior to the decision in Cornwell, there was authority to the effect that the regime laid down in s 128 could be engaged by a party witness in respect of evidence in chief to be provided by them by way of an affidavit. The Full Court of the Family Court so held in Ferrall v Blyton.116 In Ollis v Melissari,117 Campbell J held that, where a witness had objected to giving evidence on a matter in cross-examination, and had been directed to do so with the benefit of a certificate, they could be taken to object to evidence on the same subject matter given in re-examination.118 By contrast, in Meiko Australia Pacific Pty Ltd v Hinchliffe,119 Einstein J expressed the view that a certificate should ‘extend only to questions to which objection might be taken, that is, to questions put in cross- examination’.120 His Honour referred to the observation that had been made in Ross v Internet Wines Pty Ltd, that the purpose of s 128 was to protect against self- incriminatory disclosures by compulsion.121 122 Subsequent to the decision in Cornwell, in Chao v Chao,122 Brereton J applied Ferrall v Blyth, but in circumstances where it does not appear that any submission based upon Cornwell was made. In Sheikholeslami v Tolcher,123 Rein J expressed reservations about the correctness of Ferrall v Blyth, but not being satisfied it was ‘plainly wrong’, applied the decision. 116 (2000) 27 Fam LR 178 at [89]-[90]. 117 [2005] NSWSC 1016. 118 [2005] NSWSC 1016 at [5]-[6]. 119 [2009] NSWSC 354. 120 [2009] NSWSC 354 at [188]. 121 (2004) 60 NSWLR 436 at [104] (Giles JA, Spigelman CJ and McColl JA agreeing). 122 [2008] NSWSC 584. 123 (2009) 75 NSWLR 418 at [13] (Rein J). -- 44 of 73 -- [2024] SASC 148 B Doyle J 41 123 The issue was then the subject of intermediate appellate reconsideration in Song v Ying.124 Hodgson JA, with whom Giles and Basten JJA agreed, considered that the real issue was not whether s 128 was restricted to questions under cross- examination.125 He went on to say: [19] Under s 12 of the Evidence Act, except as otherwise provided in the Act, a person who is competent to give evidence is also compellable to give it. That compulsion can be exercised by use of subpoenas to get witnesses to court and into the witness box; and refusal to answer questions which a witness is compellable to answer (whether in chief or in cross-examination) can result in imprisonment. [20] Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and threat of imprisonment), or because of the availability of such compulsion if he or she does not do so, there is no reason why that witness may not object to giving evidence in chief on the ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give. [21] In Ferrall, the Court’s reasons for hold that it was within the discretion of the trial judge to grant a s 128 certificate were (at [89]-[90]): [89] We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. First, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine. [90] In the particular circumstances of the Family Court of Australia, evidence-in- chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s 128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence-in-chief, and had objected to doing so without the issue of such a certificate. [22] While I agree with the view that the availability of s 128 is not limited to questions in cross-examination, in my opinion these reasons are flawed in that they do not advert at all to the question of whether the witness was otherwise compellable to give the evidence objected to. 124 His Honour then referred to the plurality’s observations in Cornwell, before saying: [24] It is true that in par [112] the High Court focused on the distinction between examination in chief and cross-examination; but that was in a context of evidence 124 (2010) 79 NSWLR 442. 125 (2010) 79 NSWLR 442 at [18]. -- 45 of 73 -- [2024] SASC 148 B Doyle J 42 being given by a party to the case, namely the accused. When a witness is a party to the case, giving evidence in chief pursuant to questions asked by the witness’s own counsel, there would rarely, if ever, be a question that the evidence in chief is given under compulsion or because of liability to compulsion. I do not understand the High Court’s reasons to be authority for restricting s 128 to cross-examination. [25] In circumstances where there is conflict between a decision of the Full Court of the Family Court and dicta (albeit tentative dicta) of the High Court, I think it is appropriate for this Court simply to reach its own view, while paying regard to relevant persuasive authority. [26] In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party’s own legal representative, is not generally giving evidence which that party is, in any real sense, compellable to give: unless called by another party and asked questions in chief by that other party, a party’s evidence in chief is given entirely at the choice of that party and is not evidence that the party is compellable to give at the instance of anyone else. It is true that a party’s legal representative can ask questions in chief without specific instructions to ask them; but if the party instructed the representative to withdraw such a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply. [27] In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party’s own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word objects in s 128(1) and makes sense of the word “require” in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability. [28] In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party’s own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, “objects” to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression “objects” apposite. [29] This approach would not mean that a friend of a party (plaintiff or defendant) called to give evidence in the party’s case may not “object” to giving evidence within the meaning of s 128(1). Whether or not this friend wishes to support the party, this friend is compellable at the instance of the party and cannot give instructions to the party’s legal advisers as to what questions are to be asked. In those circumstances, I would not suggest that the court would need to inquire whether the friend is giving evidence because compellable, or because of a wish to give the evidence to help the party: I would say that the compellability of the witness to give the evidence at the instance of the party (subject to the provisions of s 128), and the lack of legal entitlement to refrain from giving that evidence if compulsion is sought (again subject to the provisions of s 128), is sufficient. -- 46 of 73 -- [2024] SASC 148 B Doyle J 43 [30] Similarly, witnesses called by the prosecution in a criminal case could, if the requirements of s 128 are otherwise satisfied, obtain a s 128 certificate. [31] This approach could raise difficulties where the party is a company, and the witness is a director of the company. The witness then is compellable at the instance of the company, and (at least unless the witness is the alter ego of the company) the witness may not be in a position either to prevent the company compelling the witness to give evidence or to give instructions as to what evidence is to be given. I would leave that question to be determined in a case when it arises. 125 Hodgson JA then went on to say that his approach was not inconsistent with Campbell J’s decision in Ollis v Melissari but emphasised that Campbell J’s reasoning had involved giving a wide interpretation to the expression ‘particular evidence’, which Hodgson JA considered was now ‘confirmed by the inclusion of the alternative formulation ‘evidence on a particular matter’ in the new version of s 128’.126 126 In Clatyon Utz (a firm) v Dale,127 Tate JA (with whom Ashley JA agreed) referred with apparent approval to the analysis of Hodgson JA in Song v Ying.128 Her Honour said that what is important is not whether the witness is a plaintiff or a defendant, or generally whether the evidence is given in chief or in cross- examination; what is important is whether there is an element of compulsion or potential compulsion. She referred with apparent approval to a ruling in a Family Court matter by Young J129 that the privilege was able to be claimed by an applicant who had filed an initiating application in the Family Court upon dissolution of a relationship seeking a final adjustment of property interests in respect of a financial statement and affidavit that was required to constitute full and frank disclosure. Young J accepted that the applicant was not volunteering but was compelled to give the evidence in question.130 127 In De Lutis v De Lutis,131 Elliott J was invited not to follow Clayton Utz (a firm) v Dale, noting that what had been said there was not strictly necessary for the decision. His Honour rejected that invitation, including because the decision in Song v Ying was required to be followed unless he was convinced it was plainly wrong.132 In that case, Elliot J decided that a certificate should be refused in respect of a plaintiff who sought to claim the protection of s 128 in respect of his evidence in chief by way of a witness statement. Elliot J pointed out that the Court had not required him to file a witness statement; it had been done of his own volition. 126 (2009) 79 NSWLR 442 at [33]. As has been observed, s 128 contemplates that objection may be taken to evidence on a particular matter, and a certificate will, in the relevant circumstances, be given ‘in respect of [that] evidence’. By contrast, s 23A contemplates that a certificate will be given in respect of ‘the answer, record or document’ (or to numerous such answers, records or documents). 127 (2015) 47 VR 48. A special leave application failed: [2015] HCATrans 338. 128 (2015) 47 VR 48 at [169]-[175]. 129 Aitken v Murphy [2011] FamCA 785. 130 (2015) 47 VR 48 at [176]-[179]. 131 [2017] VSC 505. 132 [2017] VSC 505 at [27]-[30]. -- 47 of 73 -- [2024] SASC 148 B Doyle J 44 There was no element of compulsion with respect to what the witness chose to give by way of his evidence in chief.133 128 The approach in Song v Ying was then considered and affirmed by a Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner134 (‘CFMEU v ABCC’) and a Full Court of the Family Court in Field v Kingston.135 129 In CFMEU v ABCC, it was held that a union official who was one of the respondents to a civil penalty proceeding could not avail himself of a s 128 certificate in respect of evidence in chief proposed to be given by him. On appeal, the official did not contend that he had been under a relevant legal compulsion; he argued instead that Song v Ying was wrongly decided and there was no such requirement. Bromwich J (with whom Kenny and Tracey JJ agreed) undertook an analysis of the issues from first principles. He commenced by observing that when considering a statutory modification to a privilege or immunity it was necessary to look at the reasons behind the immunity in the first place, in order to better understand what the modification is seeking to achieve.136 Treating both self- incrimination and self-exposure to penalty privilege as a single privilege for the purposes of the discussion, he went on: [22] Properly understood, the privilege is to be understood as a negative right to resist compulsion. It reflects ‘the long-standing antipathy of the common law to compulsory interrogations about criminal conduct’…137 130 Bromwich J then considered at length the ALRC report that had preceded the formulation of s 128. His Honour then went on to observe: [35] What was lost in the statutory bargain that was ultimately legislated for by the enactment of s 128 was, in the confined circumstances in which that provision applied, the right to remain silent. The introduction of a means of compelling the giving of evidence that would otherwise be covered by the privilege was to be compensated for by protection from the use of that evidence in subsequent proceedings. The putative witness was, at least in a formal sense, worse off, but only to the extent that his or her evidence, which would otherwise be protected by the certificate, might be both known publicly and used in some way in the proceedings in which the evidence was given. To that extent, the privilege was wound back in a protected way, trading a private right or interest for a public interest. It was not a gain for the witness but, rather, a compensated loss. [36] By contrast, to extend that statutory bargain to a party witness in the absence of compulsion would be to bestow a gain on an individual to advance his or her private interest in litigation, protected from the adverse consequences that might otherwise arise from use of that evidence. Such an outcome would be divorced from the clear historical roots of the privilege as an immunity from compulsion that is closely 133 [2017] VSC 505 at [25]-[26]. 134 (2018) 259 FCR 20. 135 [2018] FamCAFC 145. 136 (2018) 259 FCR 20 at [21]. 137 Citing Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [1] (French CJ). -- 48 of 73 -- [2024] SASC 148 B Doyle J 45 related to the right to silence, as opposed to a positive right to advance a forensic desire. Even if there is any public interest to be had from such an outcome, it would be incidental and secondary to the private interest. That was not any part of the reasoning of the ALRC in recommending a limited modification of the privilege as an alternative to its complete abolition. 131 Bromwich J considered a number of textual and other arguments advanced by the appellant with a view to casting doubt upon the approach in Song v Ying. One such argument was that s 128 referred to an objection to giving evidence and not to answering a question (an argument which would not be available in the context of s 23A of the Act). Bromwich J concluded: [62] The above arguments are a valiant attempt to cast doubt on the meaning given to s 128 by Song. However, they cannot prevail against the reasoning in that case, both at first instance and on appeal, aided by the observations of the High Court in Cornwell. As observed in Cornwell, the construction advanced by the appellants strains the word “objects” in s 128(1). It is not to the point that s 128 would, in theory, be capable of applying to a witness who happens to be a party. An objection to giving evidence is, in history and context, directed to resisting compulsion, and is not merely a means of electing for the protection of a certificate to advance a forensic desire. This much is reflected in the ordinary meaning of “objects” as used in s 128(1). [63] As demonstrated by careful consideration of the ALRC Report, the certification procedure was not enacted simply as a way to maximise the available evidence to a court by narrowing the operation of the privilege against self-incrimination. Rather, it reflected a balance struck between the public interest in evidence being available to the Court, and the individual right to refuse to answer any question, or produce any document, if the production would tend to incriminate that person. To that end, the s 128 procedure offered a measure of protection for the circumstances in which the privilege was to be overridden by requiring a witness to give evidence that may tend to incriminate him or her. The need for compulsion as part of that equation is inescapable. 132 In Field v Kingston, Strickland, Ainslie-Wallace and Aldridge JJ followed the same approach. They had to decide whether particular rules applicable in the proceeding brought about the requisite degree of compulsion. They held that the rules did not achieve that outcome because they would not be taken to overcome the presumptively available privileges.138 However, their Honours observed that:139 where a party is directed to file an affidavit and the order specifies the subject matter of the affidavit, the requisite degree of compulsion may well arise permitting the issue of a certificate, for as we have said, it is being compelled to give the evidence which enlivens the privilege, not the means by which the compulsion arises (see Crawford v Crawford (No 3) [2016] NSWSC 704). 138 [2018] FamCAFC 145 at [43]. 139 [2018] FamCAFC 145 at [44]. In Crawford v Crawford (No 3) [2016] NSWSC 704, the relevant order was that the parties file and serve any further affidavit evidence on which they rely. Stevenson J held that this order did not require them to file or serve the relevant affidavits; it was for them to choose the evidence upon which they would rely (see [48]-[53]). -- 49 of 73 -- [2024] SASC 148 B Doyle J 46 133 Before turning to s 23A, I refer finally to an ex tempore ruling of Black J in In the matter of Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration).140 In that case a question arose as to the availability of a s 128 certificate in connection with an affidavit proposed to be given by a witness who was not themselves a party, and who had not, at the relevant time, been issued a subpoena. Black J said as follows: [2] … Mrs Moshos is not a witness, as I noted, under subpoena. She is, however, a witness who could have been called upon subpoena, so far as the first and third defendants would have had the ability to cause a subpoena directed to her to be issued by the Court. It is therefore not a case, for example, where an individual seeks to give evidence in his or her own case, where the proposition that he or she could subpoena himself or herself to give evidence is nonsensical. … [8] It seems to me that I am bound to apply the approach adopted by the Court of Appeal in Song v Ying above. As I understand that approach, it draws attention to the question of whether Mrs Moshos was compellable, rather than compelled, by the first and third defendants to give evidence in the proceedings. I respectfully consider that that is a sensible approach, which gives priority to matters of substance rather than of form. It seems to me that Mrs Moshos was compellable by the first and third defendants to give evidence. If, for example, having now taken independent advice, she were to indicate that she did not wish to give evidence, it is predictable that the companies might then cause a subpoena to be issued to her to give evidence. In that situation, it seems to me that it would be a triumph of form over substance if the Court were to decline to grant a certificate under s 128 of the Evidence Act when Mrs Moshos has indicated that she is concerned as to giving evidence without such a certificate, bringing about the consequence that such a subpoena were then issued and the Court then granted such a certificate because Mrs Moshos was compelled to give that evidence. 134 Therefore, on Black J’s reasoning, a non-party witness who could be made the subject of a subpoena and who then, whilst in the witness box, is asked to give particular evidence, is a witness who may, within the meaning of s 128, be taken to object to the giving of particular evidence. 135 But, does it follow that where a subpoena or summons has been issued to a witness, the evidence given by that witness in response to a question asked of them by counsel appearing on their instructions is therefore a question which is attended by the requisite degree of compulsion? Does the fact that the witness has been compelled to attend or appear mean that, notwithstanding the outcome in Sing v Yong, the witness does ‘object’ in the relevant sense to answers asked of them by their counsel? 136 That, it seems to me, is the question I have to consider, whilst allowing for the possibility that owing to its slightly different language and the context in which it is intended to apply (viz, in an inquest rather than an adversarial or accusatorial proceeding), s 23A might justify or even demand an approach which diverges from 140 [2014] NSWSC 1898. -- 50 of 73 -- [2024] SASC 148 B Doyle J 47 that which has been adopted with respect to s 128 in the uniform evidence legislation. 137 In the passage I earlier extracted, Black J suggested that it was non-sensical to posit that a party might subpoena themselves. So much may be accepted, but, of course, in a civil proceeding, rarely though it might occur, a party (who is a natural person) might be made the subject of a subpoena to give evidence by their opponent in the litigation. (Whilst the early common law position was that parties to legal proceedings were generally not competent witnesses, the Law of Evidence Amendment Act 1851 (UK)141 abolished the common law rule of party incompetency and non-compellability, except as between husband and wife.142) Thus it seems to me that the mere fact that the witness is compellable in a general sense does not, on the authority of Sing v Yong and the decisions that have followed, in and of itself have the consequence that when voluntarily giving evidence in chief, they can be taken to be giving the ‘particular evidence’ (or ‘evidence on a particular matter’) subject to the requisite actual or potential compulsion. I consider that in the context of the authorities I have analysed, potential compulsion means compulsion to answer a question asked by the counsel who has posed it. And the compulsion or potential compulsion must relate to the giving of the evidence in question. 138 In that context, the mere fact the witness is not present under subpoena is not decisive, where that witness is a non-party, because they could be the subject of a subpoena. Indeed, it seems to me that once a witness is in the witness box, they can be directed to answer a question (if counsel does not withdraw the question) whether or not they attended under subpoena and, so long as the question is relevant and necessary for the proceeding, they may be guilty of contempt if they fail to do so.143 Likewise, under s 23(1)(e) of the Act, the Coroner’s Court may, for the purposes of an inquest, ‘require any person appearing before the Court (whether summoned to appear or not) to answer any questions put by the Court or by any person appearing before the Court’ and, under s 23(4)(c) and (d), that person will commit a contempt of the Court if they refuse or fail to answer truthfully a question when directed to do so or otherwise refuse to obey a lawful direction of the Court. 141 Evidence Act 1851, 14 & 15 Vict, c 99. 142 Cornwell v The Queen (2007) 231 CLR 260 at [32] (Gleeson CJ, Gummow, Heydon and Crennan JJ). See Evidence Act 1929 (SA) s 16 (‘In any proceeding not being a criminal proceeding the parties thereto and the persons on whose behalf such proceeding is brought or defended, and the spouses of such parties or persons respectively, shall, subject to the provisions of this Act, be competent and compellable to give evidence on behalf of either or any of the parties to such proceeding’). Section 3 of the Evidence Act 1851 preserved, in general terms, the privilege against self-incrimination, but it has been argued that express provision was unnecessary: see Clayton Utz (a firm) v Dale (2015) 47 VR 48 at [150] (Tate JA, Ashley JA agreeing). In Attorney-General v Ingham (1948) 82 ILTR 79, Gavan Duffy P said (at 83): ‘The Evidence Act 1851, made all parties to any proceedings ‘competent and compellable’ witnesses, but the Act was not to render any person charged with an offence competent or compellable to give evidence against himself or to compel anyone to answer incriminating questions’. 143 Attorney-General v Lundin (1982) 75 Cr App R 90; Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31. -- 51 of 73 -- [2024] SASC 148 B Doyle J 48 139 It is likely that Black J referred to the potential for a subpoena only because the case he was considering involved the provision of a witness statement. When a witness statement is being prepared the witness is not yet subject to the Court’s control. But the potential that the party seeking to adduce evidence from them may issue a subpoena to them is sufficient to satisfy the compulsion requirement. 140 In submissions in this Court neither the Attorney-General nor Dr Brooks submitted that the mere fact that Dr Brooks appeared pursuant to a summons had the consequence, without more, that a failure by Dr Brooks to answer a question put to her by her counsel would result in a contempt. That is to say, it was accepted that Dr Brooks would only commit a contempt of the Coroner’s Court in the event she were to be directed by the Coroner to answer a particular question. It was nevertheless submitted on Dr Brooks’ behalf that the existence of the summons meant that Dr Brooks’ evidence was attended by the requisite degree of compulsion or potential compulsion. 141 I consider first whether, assuming s 23A of the Act is to be interpreted and applied conformably with the approach taken to s 128 of the uniform evidence legislation, it can be said that the summons issued to Dr Brooks was, in substance, a form of compulsion to answer questions including particular questions in respect of which there were reasonable grounds to object on the basis of privilege. 142 Although the summons issued to Dr Brooks recited that the Coroner has reason to believe that she can give evidence in an inquest to ascertain the cause or circumstances of the death of the three individuals, in my view, the legal effect of the summons is simply to require Dr Brooks’ attendance. It cannot be assumed or inferred that the Coroner would require Dr Brooks to answer any and every question asked by any person appearing at the Inquest. 143 In my view, unless and until another represented person with a right to examine or cross-examine,144 or the Coroner (including through counsel assisting), asked a question to which (subject only to the operation of s 23A) they were in a position to require be answered, s 23A was not engaged. 144 Dr Brooks cannot be said to have been ‘required’ to answer questions posed to her by her counsel which might have tended to incriminate or expose her to a penalty because it may be inferred that any such questions asked of her were asked consistently with her instructions. Supposing the Coroner took a view, inconsistent with hers, that there were not reasonable grounds for objection, it is not to be inferred that her counsel would have pressed her to answer the question. Dr Brooks could have instructed it be withdrawn. 145 Of course, here, no precise question was in fact asked before the relevant ruling was given, but supposing that Dr Brooks had been asked by her counsel to explain what she believed to be the root causes of the death of one of the 144 See sub-ss 20(1) and 20(2) of the Act. -- 52 of 73 -- [2024] SASC 148 B Doyle J 49 individuals the subject of the Inquest, she was in a position to instruct her counsel to withdraw the question rather than risk self-exposure to penalty (if she had that concern). 146 Unless the Coroner, or the other parties present, chose to pose the question, there would be no occasion for a direction by the Coroner requiring an answer. The fact that the Coroner saw fit to issue the summons may suggest that had the process continued, it is likely that relevant questions, attracting the requisite degree of compulsion, and to which objection would have been taken, would have been posed. But here there were no questions asked that were attended by the requisite compulsion. 147 I next consider whether, bearing in mind that the proper construction of s 23A must be determined in light of the text, context and purpose of the provisions of that Act and not by the automatic adoption of authority respecting provisions in interstate legislation,145 there is a basis in either the language, context or purpose of s 23A of the Act to warrant a different approach. 148 It may be accepted that although the Coroner’s Court is a court of record,146 a coroner exercises an ‘anomalous jurisdiction’.147 Unlike the civil and criminal proceedings to which s 128 typically applies, coronial inquests by their design and purpose eschew the ordinary rules of procedure in favour of a system directed to discovering causes, direct and systemic, of a death.148 Section 24 of the Act confirms this. In R v South London Coroner; Ex parte Thomson,149 Lord Lane said: Once again it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use. 149 And in Mirror Newspapers Ltd v Waller,150 Hunt J said:151 The other section of the Coroners Act to which I referred in this context was s 33, which provides that the coroner is not bound to observe the rules of procedure and evidence 145 See, eg, Marshall v Director General, Department of Transport (2001) 205 CLR 603 at [62] (McHugh J); Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259. It is doubtful that s 23A of the Act could be said to form part of any relevant national scheme of legislation so as to attract the approach in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. As well, s 18 of the Legislation Interpretation Act 2021 (SA) provides that the enactment or re-enactment of a provision of an Act that has been construed in a particular manner (judicially or otherwise) in this State or elsewhere creates no presumption that Parliament has sanctioned or approved that construction. 146 Section 11 of the Act. 147 Decker v State Coroner of New South Wales (1999) 46 NSWLR 415 at [20] (Adams J). 148 Rolfe [2023] NTCA 8 at [53] (Grant CJ, Barr and Brownhill JJ). 149 [1982] 126 SJ 625. 150 (1985) 1 NSWLR 1. 151 (1985) 1 NSWLR 1 at 16. -- 53 of 73 -- [2024] SASC 148 B Doyle J 50 applicable to proceedings before a court of law. The need for such a departure from the rules of procedure is obvious, because an inquest or an inquiry does not have parties, and there are no pleadings, charges or indictments which define the issue to be tried. Although usually there are legal representatives for the interested parties, the coroner must consider the interests not only of those parties but also of other persons as well. It is often left to the coroner himself to maintain a vigilant eye upon the relevance of evidence, and objections to the evidence are not always readily apparent. The absence of defined issues is of paramount importance in relation to this question. Their absence necessarily requires the adoption of different procedures to those applicable to proceedings before the ordinary courts of law. 150 Having regard to the different nature of coronial proceedings, it might be argued that, in contrast to ordinary inter partes adversarial proceedings in which the parties define the issues and determine what evidence to lead, a witness who appears in an inquest, particularly one who has received a summons to attend, should not be taken to be ‘volunteering’ evidence even where he or she does so by answering questions asked by counsel appearing for them. 151 It might also be argued that so important, in the context of an inquest, is the objective of ‘gett[ing] to the truth’,152 that a construction which incentivises the giving of relevant evidence, rather than one which might disincentivise that approach, should be preferred. 152 Ultimately, I am not persuaded that these arguments militate against giving s 23A a construction that accords with the construction that has been given to s 128 of the uniform evidence legislation. I consider that the reasoning which underlies the construction given to s 128 is consistent with the essential nature of the privilege as a basis for excusing or avoiding compulsion, and is itself compelling. Indeed, I would add to the reasoning adopted in respect of the uniform evidence legislation that, in my view, the silent premise of s 23A(6) appears to be that where an objection has been ‘overruled’, the question will have been answered. The sub- section appears to assume that the question will have been pressed if the objection is not sustained. That textual consideration tends to confirm the approach that has been adopted in Song v Ying and later authorities, and is consistent with the essential nature of the privileges that are adapted and provided for by s 23A. 153 I do not consider that adopting that construction would frustrate, or fail to advance, the purposes of the Act.153 If a witness has relevant evidence to give, the Coroner may, through counsel assisting or any other party appearing at the inquest, require the witness to answer questions designed to elicit that evidence. If that occurs, the s 128 process will be engaged. 154 Because an inquest is inquisitorial, a Coroner might indicate that he or she requires, subject to the invocation of the s 23A regime, particular questions to be 152 Cf Rolfe [2023] NTCA 8 at [71] (Grant CJ, Barr and Brownhill JJ). 153 Nor do I consider that s 24 bears significantly on the construction of s 23A, which establishes its own regime in respect of what, at least in the case of privilege against self-incrimination, is a fundamental substantive right. Provisions of this kind were the subject of analysis by Stanley J (Vanstone and Peek JJ agreeing) in L, G v The Minister for Families and Communities [2012] SASCFC 72 at [94]-[119]. -- 54 of 73 -- [2024] SASC 148 B Doyle J 51 answered more frequently than would be appropriate or likely in an adversarial trial. But subject to that difference, I would hold that s 23A, like s 128 in the uniform evidence legislation, is not, without more, engaged when a witness’ own legal representative asks them questions. 155 I note for completeness that, so far as I have been able to gather, there is no decision respecting s 61 of the Coroners Act 2009 (NSW) or s 57 of the Coroners Act 2008 (Vic) that is to different effect.154 Nature of jeopardy capable of engaging s 23A 156 It is apparent from the course of the argument before the Coroner, and from the ruling, that Dr Brooks submitted, and the Coroner accepted, that s 23A of the Act would be engaged if the act of giving evidence might itself involve a breach of the Code (which would therefore render her liable to a civil penalty in the relevant sense), as distinct from s 23A only being engaged where the answer would reveal anterior conduct that might render her liable to a civil penalty. 157 Although this issue was not the subject of submissions on behalf of the Attorney-General before the Coroner, because it is fundamental to the operation of the provision, I consider it appropriate to consider the correctness of that approach.155 As well, a proper understanding of the reach of s 23A is relevant to a consideration of the other grounds that were squarely raised in the Coroner’s Court, such as the extent of any inconvenience caused by a requirement that objections be taken to particular questions. 158 In my view, as explained earlier in these reasons, at general law, the particular concern of the privileges against self-incrimination and self-exposure to penalty is with a person being required to take a step that places them in identified types of 154 Whilst not binding on me, I note that in the course of ruling that a claim could not successfully be made for the first time after evidence had been given in an inquest, a coroner exercising jurisdiction under the Coroners Act 2009 (NSW) has referred with apparent approval, to the approach taken by Ward J at first instance in Ying v Song [2009] NSWSC 1344, with the further apparent consequence that s 61 would only be available in respect of evidence which a witness was compelled to give: Inquest into the death of Josephine Nellie Florence Spain [2010] NSWLC 14. I note also that in R v Medich (No 29) [2018] NSWSC 133, Bellew J described the provisions of s 61 as ‘not dissimilar’ to the provisions of s 128 (at [20]). The decision in Kontis v Coroners Court of Victoria [2022] VSC 422 is consistent with the unsurprising proposition that the ‘interests of justice’ may present different considerations (and perhaps with different emphasis) in an inquest than in an adversarial civil proceeding, but does not contain a suggestion that the element of compulsion is not a requirement of the invocation of the statutory regime. 155 In the Attorney-General’s written submissions dated 16 October 2024, it was submitted (at [77]) that ‘[t]here is a distinction between liability for the act of giving evidence in court and liability arising for things done outside of court which are the subject of evidence in court’ and (at [78]): ‘Applying that distinction to this case, there is a difference between disciplining the Respondent for simply providing sworn testimony to the Coroner’s Court and disciplining her for other misconduct (ie earlier unauthorised access to information) which comes to light because of evidence given by her in court. It is the latter which is dealt with by penalty privilege, and to which s 23A operates. The former is dealt with by a proper reading of the Code and the Act regarding the effect of the summons, considered consistently with the common law principle of witness immunity’. In oral submissions, Dr Brooks contended that the language of the provision picks up ‘both incrimination through the answer revealing previous conduct but the answer itself may incriminate a person or expose them to a penalty. There’s no reason to read it only to apply to past conduct’ (at T75-76). -- 55 of 73 -- [2024] SASC 148 B Doyle J 52 jeopardy with respect to anterior conduct by them. As explained, the concern of the privileges is not to generally inhibit the revelation of crime, nor is it to guard against the engaging in of conduct that would be criminal in nature or contrary to some norm of conduct that exposes the witness to a civil penalty. It draws upon a concept that a person should not have to suffer the indignity of giving themselves away. It insists that those who allege criminality or other illegal conduct should prove it.156 159 The question for consideration is whether the position is any different under s 23A. As earlier observed, s 23A is engaged where ‘the answer, record or document may tend to—(a) in the case of a natural person—incriminate the person in respect of an Australian law or a foreign law; or (b) in any case—make the person liable to a penalty under an Australian law or a foreign law’. 160 This may be contrasted with s 128 of the uniform evidence legislation which, as earlier noted, does not apply to the required production of a record or document, does not distinguish natural from other persons, and refers to evidence that 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. In Director of Public Prosecutions v Peters (a pseudonym),157 Priest JA observed in passing that:158 Quite plainly, s 128 is limited in operation to evidence that may tend to prove the past commission by the witness of an offence – one that the witness has committed – and does not extend to the provision of any form of ad hoc indemnity to a witness for the commission of an offence constituted by, or arising out of, the evidence that he or she gives. Hence, although a privilege against self-incrimination for past perjury in other proceedings (and for other past crimes) must be seen to exist, s 128 provides no protection for future contemplated perjury. 161 It can be accepted that s 23A(1)(b) is, as a matter of language, capable of being given a wider berth. It entitles an objection to be made, where, inter alia, the answer may tend to make the person liable to a penalty under an Australian law or a foreign law. 162 In my view, however, the provision does not have that wider meaning or application. My reasons for that conclusion are as follows. • First, to permit an objection to be taken to an answer which would not reveal anterior conduct that exposes a person to a penalty, but which will involve engaging in conduct that might warrant a penalty, is to untether the privilege from its essential rationale at general law. 156 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [31] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 157 (2019) 59 VR 203. 158 (2019) 59 VR 203 at [78]. -- 56 of 73 -- [2024] SASC 148 B Doyle J 53 • Secondly, whilst s 23A must ultimately be construed in light of its text, context and purpose, and is plainly intended to alter the operation of the privilege to some extent (it would be pointless otherwise), the different way in which s 23A operates (when compared with the general law) in fact contraindicates the taking of a broader approach to the kind of jeopardy which may engage the section. • To conclude that s 23A(1)(b) could be engaged with respect to a contemplated contravention of a law that will result in exposure to a civil penalty would be to conclude that the Coroner’s Court is charged with deciding whether to sanction (and immunise from protection) such conduct. • Unless s 23A(1)(a) is also interpreted as being engaged where the giving of the evidence would not reveal an anterior crime but would result in the commission of a crime, it is unlikely that s 23A(1)(b) was intended to work in that way. There is no secure foundation for interpreting s 23A(1)(a) as being engaged where the giving of the answer would constitute an offence. That is not the sense in which the word ‘incriminate’ (or ‘criminate’, which is also frequently used in this context159) has been understood and applied. • Further, both paragraphs are introduced by the words ‘may tend to’. This language reflects the approach at general law to the question as to the extent to which the answer is likely to result in the relevant jeopardy.160 This language is inapt if the question is whether the giving of the evidence would itself amount to a crime or be conduct which would warrant the imposition of a civil penalty. That question would invite a binary analysis, not an inquiry into the tendency of the evidence. • Further, that Parliament’s intention is not with the avoidance or alternatively immunisation from consequence of commissions of criminal conduct or conduct that would result in the imposition of a penalty, is confirmed by the differential way in which the provision works in respect of foreign and Australian law. Where the evidence might tend to incriminate or make the person liable under foreign law, by dint of s 23A(4)(a), the person will not be required to answer the question, or produce the record or document. This differential treatment is explicable because of a concern as to the effective reach of a certificate. But if s 23A(1) has the broader scope presently under consideration, the result would be that whilst the Coroner may effectively require the commission of conduct that will result in a penalty under Australian law, it can never do so where the conduct will result in a penalty under foreign law. That would be a surprising result. 159 See, eg, Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375 (O’Connor J); R v Associated Northern Collieries (1910) 11 CLR 738 at 742 (Isaacs J); Kempley v The King [1944] ALR 249 (Starke J); Australian Crime Commission v Stoddart (2011) 244 CLR 554 at [69] (Heydon J). 160 Bell (2020) 138 SASR 467 at [183] (Blue J). -- 57 of 73 -- [2024] SASC 148 B Doyle J 54 • Further, many difficulties are likely to arise if s 23A is construed as providing a facility pursuant to which a witness may be compelled to engage in, and effectively immunised from the consequences thereof, the commission of conduct that amounts to a crime or results in exposure to penalty under Australian law apart from South Australian law. 163 Section 23A is not the first occasion on which the words ‘make the person liable to a penalty’ have been deployed in this kind of context. Those or very similar words: • appear in s 597(12A)(b) of the Corporations Act 2001 (Cth); • appear in s 58(2) of the Coroners Act 2009 (NSW) in a provision which, subject to s 61, provides a basis to resist compulsion; • appear in cl 8(4)(c) of Schedule 2 to the Independent Commission against Corruption Act 2012 (SA); and • appear in s 144(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic).161 164 Ultimately, I would conclude that the Parliament’s selection of the words ‘make the person liable to a penalty’, in preference to the formula in s 128(1)(b) (‘is liable to a civil penalty’), is not significant in the way contended for by Dr Brooks. The question whether the act of giving particular evidence itself attracts some criminal or legal consequence is dealt with by the application of those substantive laws, informed by and potentially subject to relevant immunities. 165 The point may be illustrated with reference to the feared exposure to sanction under the Code in this case. In my view, when properly construed, it would be a rare circumstance in which a public sector employee could be considered to have contravened the Code by answering a relevant question asked of them by counsel assisting or another party in the course of giving evidence in an inquest. 166 First, it may be doubted whether answering questions put to a witness appearing in answer to a summons at an inquest would amount to ‘public comment’ within the meaning of the Code, particularly where the questions are asked other than by the witness’ counsel. 167 Secondly, in respect of material that does not involve disclosing ‘official information’, a witness volunteering relevant evidence at an inquest (which is exploring broad systemic issues such as ‘ramping’) may well come within the entitlement to engage in conduct in their private capacity if it is intended to 161 The provision has been considered in R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 and was recently referred to in AB (a pseudonym) v Independent Broad-based Anti- corruption Commission (2024) 278 CLR 300. -- 58 of 73 -- [2024] SASC 148 B Doyle J 55 influence public opinion on an issue or promote an outcome in relation to an issue of public interest, subject only to the restrictions in s 15(2) of the PS Act. 168 Thirdly, even where the answering of a question posed by another would involve disclosing or revealing ‘official information’ acquired through the course of the person’s employment, it is likely that, at least where the question is one which the Coroner directs be answered, the giving of the answer would be ‘required by law’ and not prohibited by the Code. I would not read that proviso as only being engaged where a statute or legislative instrument requires in its own terms (that is, in a direct and self-executing way) the provision or revelation of information. In the context of the Code, I would expect that the provision of information is ‘required by law’ if it is required by a body or person who is authorised by law to impose the relevant requirement.162 169 However, for reasons I later explain, it is not necessary for me finally to resolve those issues of construction. To the extent the observations just made differ from the approach taken by the Coroner, it should be noted, in fairness, that there were submissions advanced on this application which were not made to him. Requirement for real and appreciable danger of penalty 170 The Attorney-General contends that the Coroner misapprehended the limits of his power in that he failed to apply what was said to be a common law requirement that, before the objection was upheld, it be concluded that the danger of penalty was ‘real and appreciable’. 171 That expression (‘real and appreciable’) derives from R v Boyes,163 as emerges from the summary of general law principles given by Blue J in Bell (reproduced earlier in these reasons). 172 The question whether any requirement for a ‘real and appreciable’ danger differs from the content otherwise to be given to the question whether there are ‘reasonable grounds’ for the objection, and, if so, whether that requirement should be taken to be imported as an additional or separate requirement, is not straightforward. 173 In R v Bikic,164 Giles JA, with whom Sully and David Levine JJ agreed, held that ‘reasonable grounds’ must be taken to relate to the question whether or not the witness can be placed in jeopardy by giving the particular evidence. It did not 162 As Dr Brooks submitted, examples of more expansive drafting can be identified, which deal distinctly with disclosure required under a court order, but I do not consider that these examples detract from the meaning in context which is suggested by ‘required by law’, noting that ‘by’ is a broad word of connection. The examples given were: Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248 at [157]; Emission Assessments Pty Ltd v James Jackson [2022] WASC 60 at [33]; Stucterre Consulting Engineers (NSW) Pty Ltd v Townend [2020] NSWSC 1476 at [6]. 163 (1861) 1 B & S 311; 121 ER 730. 164 [2001] NSWCCA 537. -- 59 of 73 -- [2024] SASC 148 B Doyle J 56 invite some broader inquiry.165 With respect to the likelihood or seriousness of the risk, his Honour said that the words used were similar to those found in the common law cases by which it was necessary that the court see that there are reasonable grounds to apprehend danger to the witness from his being compelled to answer.166 That said, his Honour recognised that the words must be construed for their proper meaning and effect without being confined by pre-conceptions from the common law. 174 In the slightly different context of s 128A of the uniform evidence legislation, some members of the Court made observations about the ‘reasonable grounds’ requirement in Deputy Commissioner of Taxation v Shi (‘Shi’).167 175 Kiefel CJ, Gageler and Gleeson JJ observed that for the court to be satisfied that there are reasonable grounds for the objection taken, the court must be satisfied on the evidence before it that there is a legal and factual foundation for the objection that is sufficient for the court itself to conclude that the objection is reasonably maintained at the time the court makes its decision.168 For that proposition, their Honours cited the following passage in the judgment of Hayne J in McKinnon v Secretary, Department of Treasury:169 But the question presented by s 58(5) makes no reference to the state of mind of any person. It asks whether there exist reasonable grounds for a claim that has been made. And it may seriously be doubted that the understanding of the Tribunal’s task is assisted by injecting notions of persuasion or satisfaction of the kind with which George v Rockett was concerned. Such notions are unhelpful in this context because they all too readily may be understood as requiring the Tribunal to make its own assessment of where the public interest lies. That is not what s 58(5) permits or requires. It requires an assessment of the grounds for the conclusion that disclosure is not in the public interest. Do reasonable grounds exist for that conclusion? 176 Justice Hayne went on to say, in the next paragraph:170 The expression “not irrational, absurd or ridiculous” is not synonymous with “reasonable grounds”. Of course, absurd, irrational or ridiculous grounds are not reasonable grounds. But the words “reasonable grounds” do not denote grounds which are “not irrational, absurd or ridiculous”. The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them. 177 Returning to Shi, Gordon J observed as follows:171 165 One member of the Court in Director of Public Prosecutions (Vic) v Peters (a pseudonym) (2019) 59 VR 203 considered that circumstances that might otherwise amount to a waiver at general law might deny the reasonableness of the grounds for an objection: see at [92] (Priest JA). Niall JA and Croucher AJA preferred not to explore questions of waiver: see at [117] and [123]. 166 [2001] NSWCCA 537 at [14]-[15]. 167 (2021) 273 CLR 235. 168 (2021) 273 CLR 235 at [7]. 169 (2006) 228 CLR 423 at [59]. 170 (2006) 228 CLR 423 at [60]. 171 (2021) 273 CLR 235 at [33]-[35]. -- 60 of 73 -- [2024] SASC 148 B Doyle J 57 [33] Section 128A(4) then provides that it is for the court to determine whether or not there are reasonable grounds for the objection. The test is objective and evaluative172. Once the privilege has been claimed, the question for the court is whether, in all the circumstances, reasonable grounds exist for apprehending danger to the relevant person from being compelled to comply with the disclosure order in relation to some or all of the information in the privilege affidavit. [34] In assessing whether there are reasonable grounds for the objection, the court must assess whether there is a "real and appreciable risk" of prosecution if the relevant information is disclosed173. The gist of the privilege is that disclosure of the information "would tend to expose the claimant to the apprehended consequence"174. The "reasonable grounds" inquiry requires the court to assess, having regard to the circumstances of the case and the nature of the information which the relevant person is required to disclose, whether there are reasonable grounds to apprehend danger to them from being compelled to disclose the information175. This requires consideration of whether information may tend to prove the commission of an offence, as well as the likelihood, or risk, of steps being taken to prosecute that offence. There must be some material upon which the court can be satisfied of these matters176. The court is not limited to information in the privilege affidavit or any other material filed by the relevant person. [35] There can be no real and appreciable risk of prosecution, and accordingly no reasonable grounds for invoking the privilege, where the limitation period for commencing a prosecution has expired177; where the person claiming the privilege has received a pardon or has already been convicted or acquitted of the crime178; or where "the taking of the step in question [the disclosure] will not add to the individual's jeopardy"179. Further, where a court determines that the claim is not made bona fide or is made for an ulterior purpose, such as to protect persons other than the applicant, the court would likely determine that there were not reasonable grounds for the objection180. 178 Justice Edelman observed that: [74] The centuries-old common law test is reflected in ss 128(3) and 128A(5) of the Evidence Act, which require a person claiming privilege to establish that (i) reasonable grounds exist, for (ii) an objection, that (iii) evidence or disclosure may tend to prove that the person has committed an offence. A stricter test in ss 128(4)(a) and 128A(6)(b) asks whether the evidence or disclosure of the information relevantly "does not tend to prove" the commission of an offence. There is a distinction experienced by many unsuccessful litigants between, on the one hand, whether a person has reasonable grounds to make a claim and, on the other hand, 172 See Application Concerning Section 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614 at [21]. 173 Rio Tinto Zinc Corporation [1978] AC 547 at 574; Sorby (1983) 152 CLR 281 at 290; Sadie Ville (2018) 357 ALR 695 at 717-718 [99]. 174 Sadie Ville (2018) 357 ALR 695 at 717 [98]. 175 Sorby (1983) 152 CLR 281 at 289. It is to be accepted, however, that considerable latitude is to be afforded because information, though at first sight apparently innocent, may afford a link in a chain of evidence and thereby be a means of bringing home the offence to the relevant person. 176 McFadden (1993) 31 NSWLR 412 at 423; Application Concerning Section 80 of the Supreme Court Act and Sections 119 and 128 of the Evidence Act [2004] NSWSC 614 at [24]. 177 Sorby (1983) 152 CLR 281 at 290; Sadie Ville (2018) 357 ALR 695 at 718 [100]. 178 Sorby (1983) 152 CLR 281 at 290. 179 Sadie Ville (2018) 357 ALR 695 at 718 [101]. 180 McFadden (1993) 31 NSWLR 412 at 430. -- 61 of 73 -- [2024] SASC 148 B Doyle J 58 whether their claim is ultimately accepted. Parliament cannot have intended to create a redundant exception, abolishing this distinction, when it omitted words like "reasonable grounds" or "objection" or "may tend" from ss 128(4)(a) and 128A(6)(b). But it is not merely the established meaning of the words of those paragraphs that requires a stricter test. The existence of a stricter test in ss 128(4)(a) and 128A(6)(b) is reinforced by the context, policy, and history of those paragraphs. … [83] In replicating the long-established position in relation to the privilege against self-incrimination, s 128(2) did not alter the extent of the onus at common law. The requirement that the grounds for objection be "reasonable" is concerned only with the grounds for the objection made by the party claiming the privilege, not with any ultimate conclusion. In R v Bikic181, Giles JA observed that this onus of proof at common law, and contained in s 128(2), does not require a party asserting the privilege to establish the conclusion that the evidence may tend to prove that the witness has committed an offence. It suffices that there are reasonable grounds for an objection that this may be so. This slight onus, contained in s 128(2), replicated the approach taken by the common law. As mentioned above, at common law, a "great latitude" was allowed to a witness "in judging for himself of the effect of any particular question"182. Hence, reasonable grounds were usually established unless "the Judge is perfectly certain that the witness is trifling with the authority of the Court, and availing himself of the rule of law to keep back the truth, having in reality no ground whatever for claiming the privilege"183. [84] The slight nature of the onus was reinforced at common law and in s 128(2), read with s 128(1), by the doubly tentative language of "may tend to prove". This expression was adopted against a long history at common law. A "cloud of authorities" established that the test was satisfied by "a single remote link in the chain of testimony, which may implicate [the witness] in a crime or misdemeanor"184, a link which Wigmore described as a "clue fact"185. 179 As the observations of Hayne J in McKinnon indicate, there is little to be gained by substituting different words for the requirement of ‘reasonable grounds’. 180 What is clear is that the inquiry is not limited to the question of whether the answer, record or document would reveal conduct that, as an abstract proposition, might attract criminal sanction or a penalty. It extends to a consideration of the likelihood of the person actually being the subject of a prosecution or the imposition of a penalty. That may require a consideration of whether time limits or other protections may be available to the person, or whether the conduct has already been dealt with.186 181 The test is not a demanding one, but nor is that to say that whenever the risk is not irrational, absurd or ridiculous, that there are reasonable grounds for the 181 [2001] NSWCCA 537 at [13]-[15]. 182 R v Boyes (1861) 1 B & S 311 at 330 [121 ER 730 at 738]. 183 Adams v Lloyd (1858) 3 H & N 351 at 362 [157 ER 506 at 510]. 184 Taylor, A Treatise on the Law of Evidence, as Administered in England and Ireland; with Illustrations from the American and other Foreign Laws (1887), vol 2, 1244 §1454 (emphasis in original). 185 Wigmore, Evidence in Trials at Common Law, McNaughton rev (1961), vol 8, 369-378 §2260. 186 See, eg, Kontis v Coroners Court of Victoria [2022] VSC 422 at [151] (O’Meara J). -- 62 of 73 -- [2024] SASC 148 B Doyle J 59 objection. It may be that the expression ‘real and appreciable risk’ more or less captures the essence of the inquiry,187 but I do not consider that that question must be posed as some distinct or separate inquiry. The inquiry is whether there are ‘reasonable grounds for the objection’. I would not accept that a failure to separately pose the question whether there is a real and appreciable risk involves an error of law, much less a jurisdictional error. Interests of justice 182 The Attorney-General submits that the Coroner’s assessment of the interests of justice was so narrow as to fail to take into account the whole of the relevant circumstances. The breadth of what may be brought to bear within the rubric of the ‘interests of justice’ is one thing. Whether a failure to bring to bear a particular consideration involves jurisdictional error warranting certiorari may be another. 183 The breadth of the concept of ‘interests of justice’, and the difficulties in challenging, by way of judicial review, a ruling with respect to the matter, are apparent from Leeming JA’s decision in Rich v Attorney-General of New South Wales.188 His Honour there said: [15] Subsection (2) imposes an initial obligation upon the Coroner before whom an objection is made first to determine whether there are reasonable grounds for it. This is done in advance of the evidence being given, and the question is whether the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty. That is to say, the threshold question is whether there is a well- founded risk of the type described by the subsection. In the present case, it was and is common ground that the applicant had reasonable grounds for his objection, based at least on the possibility of disciplinary action. It was and is also common ground that the immunity conferred by s 61(7) would not prevent the Commissioner from relying on the applicant's evidence. Section 61(7) applies to courts and other bodies authorised to receive evidence, not to information which may result in exercises of power under s 173 of the Police Act. In that event, the Coroner is required to inform the witness of the matters in subsection (3), including the consequences that flow depending upon whether the witness is willing to give the evidence, or is required to do so. [16] Subsection 61(4) confers power on the Coroner to require a witness to give evidence that may tend to prove that he or she has committed an offence or is liable to a civil penalty, even if he or she has objected and is unwilling to give evidence even if given a certificate. It provides: “(4) The coroner may require the witness to give the evidence if the coroner 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 187 The expression was used by Delany J in Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 7) [2022] VSC 549 at [98]. 188 [2013] NSWCA 419. -- 63 of 73 -- [2024] SASC 148 B Doyle J 60 (b) the interests of justice require that the witness give the evidence.” [17] There are two preconditions to the exercise of the power conferred by s 61(4). The first, in s 61(4)(a), was always made out (its premise is that no certificate could protect a witness against criminal proceedings or proceedings for a civil penalty in a foreign country, so that if that is the basis of the objection, there is no power to require the witness to give evidence). The second, in s 61(4)(b), which is of critical importance in these proceedings, is open-ended. It is merely that the Coroner is satisfied that the interests of justice require that the witness give the evidence. [18] Two difficulties confront a challenge to the exercise of power under s 61(4). The first is that the Act does not define "interests of justice". It has been said that in this context those words should be construed broadly, and can (in an appropriate case) authorise questions going to credit: Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 at [38] (Sheller JA, Meagher and Beazley JJA agreeing). In a different context, but in respect of the same Act, Kirby P said that the words were of the "widest possible reference" such that "there could scarcely be a wider judicial remit": Herron v Attorney-General for NSW (1987) 8 NSWLR 601 at 613. [19] Subsection 61(4)(b) is thus an instance of that class of broadly worded and undefined discretionary powers described by Dixon CJ in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 (to which Hayne, Kiefel and Bell JJ referred in Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 at [67]): “We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.” [20] The second is that the precondition of the exercise of power is not that the interests of justice require the evidence to be given under compulsion. The precondition is merely that the Coroner be satisfied that the interests of justice so require. That does not mean that the decision is unreviewable (although it once was, as Windeyer J observed in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 57). The state of satisfaction is a "jurisdictional fact": see D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [69]-[71] (Beazley P, with whose reasons Bathurst CJ agreed), where the ways by which a challenge may be made are reviewed. But it is plain from her reasons that the Coroner was satisfied, and where as here legislation requires the donee of power to be satisfied as to a matter of "opinion or policy or taste", there will be "a very wide discretion which cannot be effectively reviewed by the courts", as Gibbs J said in Buck v Bavone (1976) 135 CLR 110 at 119. … [29] The second [difficulty confronting the applicant’s formulated appeal grounds] is that there will ordinarily only be judicially reviewable error in failing to consider something which is a relevant consideration in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, being a consideration which the decision-maker "is bound to take into account in making -- 64 of 73 -- [2024] SASC 148 B Doyle J 61 that decision" (emphasis in original). Ambiguity in this context can be avoided by referring to a "mandatory relevant consideration", as Gageler J did with the agreement of all other members of the High Court in Mills v Commissioner of Taxation [2012] HCA 51; 87 ALJR 53 at [61]. But the Act in its terms mandates consideration of no particular consideration, save for the very evidence to which objection has been made, being "the evidence" which the Coroner must be satisfied that the interests of justice require to be given. Otherwise, it leaves it to the Coroner to assess what falls within the broad, undefined term "the interests of justice". It remains theoretically possible to imply, from its subject matter, scope and purpose, a limitation upon the matters to which the Coroner may have regard, but that is no easy task in the case of this legislation. [30] The third is that the weight to be accorded to any particular matter to which the Coroner had regard in reaching the state of satisfaction that the interests of justice required the evidence to be given was, so far as this Court's supervisory jurisdiction is concerned, entirely a matter for the Coroner, who was well placed to evaluate the competing considerations. [31] On their face, each of Grounds 1, 2, 3, 5 and 8 clash with those principles. Ground 1 identifies no judicially reviewable error, the remaining grounds ambitiously presuppose that the Act impliedly bound the Coroner to have regard to the matters alleged, and the alternative formulations within those grounds of failing to give "sufficient weight" or to "properly consider" tend to go beyond the limits of judicial review. Judicial review is about identifying and enforcing the limits of executive power: it is, as Gleeson CJ and Brennan J have emphasised, "the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law": Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [31]. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, not the court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 184 In Kontis v The Coroners Court of Victoria,189 O’Meara J described the interests of justice inquiry as ‘unavoidably expansive’. His Honour emphasised that an evaluation of the weight to be given to particular considerations in the whole of the circumstances does not give rise to any judicially reviewable error.190 185 Of course, context may dictate that a particular consideration is not within the range of matters properly bearing on the interests of justice. So, in the particular context of s 128A, the majority held in Shi that, because the premise for the operation of that section is that there were grounds to make an order requiring the provision of the relevant information, it was not proper to consider whether there might be alternative means by which the information could be obtained.191 Where, however, there was other evidence presently available that did tend to cover the same territory, that might militate against requiring disclosure.192 189 [2022] VSC 422 at [155]. 190 [2022] VSC 422 at [163]. 191 Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 at [11] (Kiefel CJ, Gageler and Gleeson JJ), [43] (Gordon J). 192 Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 at [43] (Gordon J). -- 65 of 73 -- [2024] SASC 148 B Doyle J 62 Requirement that an answer have been given before certificate issues 186 Section 23A(5) provides that a certificate will issue if the person has willingly answered a question, or produced a record or document, without being required to do so (but after reasonable grounds have been found for the objection), or if the person has answered the question, or produced the record or document after being required to do so under s 23A(4). 187 As the Attorney-General has submitted, it is possible that despite being required to do so under s 23A(4), the witness might fail to answer the question, or produce the record or document. They may be dealt with for contempt in those circumstances, pursuant to s 23 of the Act. Obviously enough, no certificate would then issue. The other circumstance in which a certificate will be given is where the objection has been overruled but, after the evidence has been given, or the record or document produced, the Court finds that there were reasonable grounds for the objection: s 23A(6). There is no point considering the interests of justice in that case; the evidence will have been given. The only fair thing is for the witness to receive a certificate. As has been noted, s 23A(7) facilitates the issue of a single certificate in respect of more than one question, record or document or in respect of combinations of them. 188 The structure of the provision is therefore consistent with a certificate being issued after, and not before, a relevant answer is given, or a relevant record or document is produced. 189 The importance of the sequential operation of the provision is also seen in the authorities which deny the potential for objection to be raised after the event. If no objection has been taken, no certificate can be given.193 190 Dr Brooks submits that Cornwell supports the proposition that the timing of the issue of the certificate is not material to its validity, and is merely a matter of convenience. In Cornwell, the plurality had said that the certificate had no intrinsic significance and was not a document constitutive of rights.194 Some care is required in relation to the continued status of those observations given the amendments that resulted in the presence of s 128(8) of the uniform evidence legislation and are reflected in s 23A(10) of the Act. 191 The effect of the provisions as amended is that where evidence is given (or produced) but there is a subsequent challenge to the efficacy of the certificate, the protection against use is unaffected. When the provision was introduced into the NSW legislation, Mr Barry Collier said, in the course of the second reading speech, that:195 193 See the analysis of Hammerschlag J in Shanahan v Jatese Pty Ltd (2018) 107 NSWLR 430 at [11]-[26]; Meiko Australian Pacific Pty Ltd v Hinchliff [2009] NSWSC 354 at [186]. 194 Cornwell v The Queen (2007) 231 CLR 260 at [91] (Gleeson CJ, Gummow, Heydon and Crennan JJ). 195 New South Wales, Parliamentary Debates, Legislative Assembly, 17 October 2007, 2815. -- 66 of 73 -- [2024] SASC 148 B Doyle J 63 This amendment has been made on the basis that the granting of a certificate under section 128 is not the same as any other evidential ruling. To ensure that the policy of section 128 is carried into effect, the witness must be certain of being able to rely on that certificate in future proceedings. 192 It will be remembered that one possibility is that, following a finding of reasonable grounds, a witness might willingly answer the question. They will be granted a certificate in that case. If the certificate is later quashed, they will have lost the capacity to seek to persuade the Court that they should not, in the interests of justice, have been required to answer. If the quashing of the certificate were to result in the loss of the relevant protection, the witness will have been prejudiced. That, it seems to me, is an aspect of the mischief sought to be addressed by the amendment. 193 It is therefore no longer the case that the Certificate lacks intrinsic significance. Having said that, on its face, s 23A(10) is widely cast, begging a question whether the quashing of the Certificate would lack a relevant consequence and, if so, whether relief should be withheld. 194 In my view, assuming jurisdictional error is made out, there would be utility in quashing the Certificate because it will enable (if not require) the future conduct of the Inquest to reflect the approach to s 23A indicated in these reasons. Whatever effect s 23A(10) has in a court or before a person or body in which there is an attempt to tender evidence received in the Inquest, the quashing of the Certificate will necessitate, within the course of the Inquest, fresh consideration to be given to objections that may be taken to particular questions asked of Dr Brooks. 195 That suffices to dispose of the utility question and I therefore need not finally determine how a future court or body might respond to a contention based on s 23A(10). 196 However, because it is at least capable of feeding into a consideration of whether and to what extent an error in the course of deciding whether to issue a certificate (and on what terms) is jurisdictional, I should consider, at least in a general way, the effect of s 23A(10). 197 For convenience, I reproduce below sub-ss 23A(8) and (10): (8) In any proceeding in a court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence— (a) an answer given, or a record or document produced, by a person in respect of which a certificate under this section has been given; and (b) any information, document or thing obtained as a direct or indirect consequence of the person having answered a question, or produced a record or document, cannot be used against the person. -- 67 of 73 -- [2024] SASC 148 B Doyle J 64 … (10) Subsection (8) 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. 198 I would observe, in passing, that s 23A(8)(b) must be read as though it says ‘such a question, or produced such a record or document’. Otherwise, s 23A(b) would have an effect unhinged from the evidence in respect of which the Certificate is given. The parties agreed with this proposition. 199 I consider that s 23A(10) should be given a meaning that is consistent with the perceived problem it was designed to address, but without seeking more generally to deny or limit this Court’s inherent and entrenched supervisory jurisdiction.196 200 Its possible effect and implications may be analysed by assuming, as the text and structure of s 23A suggests, that the sequence197 in which the section applies will be: (i) question asked; (ii) objection to answering made; (iii) determination as to reasonable grounds for objection; (iv) if upheld, either (a) question willingly answered, or (b) Court called upon to decide whether interests of justice require answer to be given; (v) if question willingly answered or if answer to (iv)(b) is ‘yes’, answer given; (vi) certificate issued. 201 If a witness (or another party with standing) challenges the correctness of a determination at step (iii) or a determination made at step (iv)(b), there exists the possibility that judicial review might be pursued before step (v) occurs. The Court might, if persuaded of relevant error, grant declaratory relief or even an order in the nature of prohibition which will prevent a certificate from issuing. In such a case, s 23A(8) would have no application, and s 23A(10) would never be engaged. 202 Where no such challenge is made and the evidence is given, it is to be expected that a certificate will issue promptly, if not immediately, following the giving of the evidence. Conceivably, another party might challenge the decision(s) that led to the certificate having been issued, or the form of the certificate issued. Yet the witness will have given evidence in the expectation of enjoying the immunity contemplated by s 23A(8). That may even have influenced them to elect to give the evidence willingly (step (iv)(a)) rather than seek to persuade the Court not to require the question to be answered (step (iv)(b)). It seems to me that s 23A(10) is designed to ensure that the witness in such a case continues to enjoy a protection. Its general effect and purpose is to ensure that a particular consequence continues to attach to what might otherwise be challenged. 196 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. 197 Cf Shanahan v Jatese Pty Ltd (2018) 107 NSWLR 430 at [13] (Hammerschlag J). -- 68 of 73 -- [2024] SASC 148 B Doyle J 65 203 In the present case, with a view to seeking to assist in crystallising issues for the purposes of a foreshadowed application for judicial review,198 a certificate has been issued (step (vi)) before the evidence in question has been given (step (v)). If for that reason (or others) I conclude that the Certificate should be quashed as infected by jurisdictional error, it is doubtful whether it will be true to say, when Dr Brooks comes to answer further questions in the inquest, that those answers will be answers ‘given … in respect of which a certificate under this section has been given’. I would also doubt whether a certificate framed in terms of evidence yet to be given (and framed instead by reference to topics) is a ‘certificate under this section’, to which s 23A(8) is capable of applying. 204 There may be other ways in which s 23A(10) should be denied the fullest operation that its language could naturally bear,199 but I need not pursue them. The grounds of review and the identification of jurisdictional error 205 I now turn back to the grounds for judicial review in this case. It is necessary to consider whether in issuing the Certificate the Coroner erred in law and, if so, whether the error was jurisdictional. 206 In dissent as to the outcome, but not as to the relevant principles, Gageler J said in Stanley v Director of Public Prosecutions (NSW) (‘Stanley’)200 that: There is accordingly no novelty in the proposition that a mistake on the part of an inferior court, even as to the proper construction of a statute which invests that court with jurisdiction, will not necessarily or even ordinarily deprive a resultant order of the authority conferred on the court to make an order of that kind: there are mistakes, and then there are mistakes201. 207 Distinguishing errors that go to the essential validity of a decision or exercise of power by an inferior court from those which do not involves a second layer of statutory interpretation (that is, over and above that which is required to determine whether an error of law has been committed). This is the Project Blue Sky202 inquiry, which looks to the language of the relevant provision and the scope and object of the whole statute.203 As Gageler J observed, at least where decisions and exercises of power on the part of an inferior court are concerned, a mandatory consideration is not, without more, a jurisdictional consideration.204 198 Transcript of Proceedings, Inquest into the death of Anna Vicenza Panella, Bernard Anthony Skeffington and Graham Henry Jessett (Coroner’s Court of South Australia, INQ-24-24, Deputy State Coroner White, 26 August 2024) 1784-1785. 199 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. 200 (2023) 278 CLR 1 at [18]. 201 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420. See also Wang v Farkas (2014) 85 NSWLR 390 at 400 [42]. 202 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] (McHugh, Gummow, Kirby and Hayne JJ). 203 Stanley v Director of Prosecutions (NSW) (2023) 278 CLR 1 at [55] (Gordon, Edelman, Steward and Gleeson JJ), and at [19] (Gageler J). 204 Stanley v Director of Prosecutions (NSW) (2023) 278 CLR 1 at [19] (Gageler J). -- 69 of 73 -- [2024] SASC 148 B Doyle J 66 208 The plurality reasons in Stanley205 affirm the essential approach in Craig v South Australia,206 which recognises that: • mistake in the identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are routine steps in the discharge of the ordinary jurisdiction of a court of law and will not, ordinarily, constitute jurisdictional error; 207 • similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error;208 but • an inferior court may fall into jurisdictional error if it misconstrues the statute conferring its jurisdiction and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case, or if it misapprehends or disregards the nature of limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist, or if it disregards some matter in circumstances where the statute conferring its jurisdiction requires that any particular matter be taken into account as a pre-condition of the exercise of any authority to make an order.209 209 In view of the conclusions that I have reached about the proper construction of s 23A, I would hold, with respect, that the Coroner erred in law in granting the Certificate, because: (1) there had not been an objection taken to a question which itself required an answer which might have the tendency to make Dr Brooks liable to a penalty under an Australian law or a foreign law. The questions posed merely elicited Dr Brooks’ attitude should such questions be asked. Indeed, they elicited her attitude to answering questions to the extent that her answers relied upon ‘official information’; (2) further, to the extent that it might be suggested that those questions involved, in substance, an implicit question about the causes and significance of ‘ramping’, either generally, or in connection with the deaths the subject of the Inquest, a question of that kind asked by her own legal representative was 205 Stanley v Director of Prosecutions (NSW) (2023) 278 CLR 1 at [56]-[57] (Gordon, Edelman, Steward and Gleeson JJ). 206 (1995) 184 CLR 163 at 179-180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). 207 Craig v South Australia (1995) 184 CLR 163 at 179-180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). 208 Craig v South Australia (1995) 184 CLR 163 at 179-180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). 209 Craig v South Australia (1995) 184 CLR 163 at 177-178 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). -- 70 of 73 -- [2024] SASC 148 B Doyle J 67 not one attended by the requisite degree of compulsion or potential compulsion to permit the conclusion that there was an ‘objection’ to a question in respect of which the Court might, if it overruled the objection, ‘require’ an answer, within the meaning of those words in s 23A; (3) further, whilst the Coroner may have also been concerned that evidence given by Dr Brooks might tend to expose her to penalty in respect of her earlier act in volunteering information and documents to the Coroner (by her email of 29 April 2024), his ruling clearly proceeded on the footing that reasonable grounds might be made out if the act of answering questions under oath in the Inquest might amount to misconduct or conduct which could then expose her to penalty. That was an error of law; (4) as well, and related to the first error, the issuing of the Certificate prior to, rather than after, any answers were given (much less records or documents produced) was an error of law. 210 In my view, the first and third of these errors is jurisdictional. I incline to the view that the second and fourth are as well. 211 As to the first, I consider that the taking of an objection to answering a question that has actually been asked is structurally fundamental to the operation of the section, and is akin to a jurisdictional fact necessary for the validity of a certificate issued under the section. Whilst I consider that it also involves error of law to fail to adhere to a question-by-question approach to objections, whether every failure to do so would infect the validity of a resultant certificate is less clear. 212 As to the second, for the same reasons which inform my view as to the implicit requirement for compulsion, I consider that a failure to attend to the need for compulsion is likely jurisdictional in nature. It overlooks a fundamental element of the nature of the privileges which are admittedly adapted and transformed in their effect by the section. My hesitation about the jurisdictional status of the error is partly a result of the nuance that may be involved in determining whether there is, in a given case, the requisite degree of compulsion. Some of the authorities I have earlier identified highlight the potential for that nuance. 213 In respect of the third, I consider that there is a distinction to be drawn between an error of law in the process of ascertaining whether an answer may tend to make a person liable to penalty under Australian law, and an error of law about what the expression ‘may tend to … make the person liable to a penalty under an Australian law’ means. An error in the construction of the Code likely amounts to an error of law (the position is undoubtedly different in respect of foreign law210), but that, it seems to me, is an error within jurisdiction. An error in respect of 210 Australian Courts are not presumed to have any knowledge of foreign law. The content of foreign law is proved as fact: Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115] (Gummow and Hayne JJ). -- 71 of 73 -- [2024] SASC 148 B Doyle J 68 whether the section is concerned with being required to reveal (as distinct from commit) misconduct, seems to me to be more fundamental. 214 As to the fourth, I consider the error is likely jurisdictional because it occurred in the circumstances of the first and third errors. If a relevant question had been asked, and the objection to answering it was found to be on reasonable grounds, and a certificate had been issued with reference to the question, but before the answer had been given, the position might be different. 215 At all events, I consider that on one or more of those bases, the Certificate was and is affected by jurisdictional error and it is appropriate to make an order in the nature of certiorari in respect of it. 216 It is not strictly necessary for me to address the other errors alleged, but, briefly stated, I consider that: (1) putting to one side the circumstance that the question of reasonable grounds was not considered in respect of particular objections to answering particular questions, I do not consider that the failure to frame the inquiry by reference to the existence of a ‘real and appreciable risk’ itself involves an error of law, much less a jurisdictional error; (2) the global approach taken by the Coroner in advance of particular questions being posed to Dr Brooks had the consequence that the ‘interests of justice’ inquiry was considered at too high a level of abstraction, and prematurely. But beyond that, I am not persuaded that the failure to bring to bear particular matters pointed to by the Attorney-General involved error of law, much less a jurisdictional error. For instance, the Attorney-General contended that it involved jurisdictional error to fail to take into account whether the evidence might otherwise be in the public domain and Dr Brooks’ own conduct in volunteering information and documents to the Coroner and offering assistance. In my view: (a) as to the former, to the extent that went to whether, in giving evidence, Dr Brooks would be contravening the Code (because it went to whether particular information fell within the meaning of ‘official information’ under the relevant provisions of the Code), that is a question relevant to whether giving evidence would amount to a breach of the Code, rather than whether giving evidence would tend to reveal an anterior breach of the Code. Even if I am wrong about that, and it has an independent relevance to the interests of justice, I do not consider it could be said to be a mandatory consideration, much less one which, if ignored, would result in the Coroner’s decision or exercise of power being beyond jurisdiction; and (b) as to the latter, again, I do not consider that failing to have regard to the circumstances that led to Dr Brooks being before the Coroner, and any -- 72 of 73 -- [2024] SASC 148 B Doyle J 69 culpability on her part, could be a mandatory consideration with respect to the interests of justice, much less one that would, if overlooked, warrant the conclusion of jurisdictional error. 217 In the event that, following my decision, the Coroner is called upon to decide, in the context of any future engagement of s 23A of the Act, whether Dr Brooks should be required to answer questions in respect of which there are reasonable grounds to object, the Coroner will no doubt do so mindful of the breadth of the considerations that are permissible in weighing the interests of justice. So long as the Coroner does not exclude from consideration as irrelevant any matters which, on the proper construction of the section, may be taken into account, the decision whether to give effect to particular considerations and, if so, the weight to be given to them, forms part of the ‘unavoidably expansive’ inquiry contemplated by s 23A. 218 I will make an order in the nature of certiorari quashing the Certificate. The Attorney-General’s written submissions also sought an order in respect of the underlying ruling. The originating application did not. I will hear the parties as to the precise form of the final relief. -- 73 of 73 --