Attorney-General of South Australia v Brooks

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ATTORNEY-GENERAL OF SOUTH AUSTRALIA v BROOKS
[2024] SASC 148
Judgment of the Honourable Justice B Doyle
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 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 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.

ATTORNEY-GENERAL OF SOUTH AUSTRALIA v BROOKS
[2024] SASC 148
Civil: Application for Judicial Review

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’).
[1] Being Inquest No 24/2024 (0847/2019, 2112/2021, 0662/2022).
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.
[2] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
For the reasons that follow, I would quash the Certificate. It was issued in circumstances affected by jurisdictional error.
Background
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.
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.
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.
The Inquest commenced on 23 April 2024.
On 29 April 2024, Dr Brooks sent an email to the Coroner directly which attached two documents.
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.
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.
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.
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’.
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 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.
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.
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.
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.

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.
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.
Later that day, in view of the issues raised and the undesirability of judicial review proceedings consuming scarce resources, the Coroner indicated that a 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.
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.
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.
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’.
The following exchange then occurred:
QAre 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.
AYes, I understand.
QDo you understand that if you did disclose information without authority you may be liable to disciplinary action.
AYes.
QIn 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.
AI am not willing to answer questions because I am placing myself in the jeopardy described that you have described.
QSo if you’re unwilling is it the case that you would only answer questions if you’re compelled by law to do so.
AI will answer questions if I am compelled to do so.
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’).
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. …
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 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.
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.
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.
[3] See ss 53(1)(d), 54(1)(d) and 55(1) of the PS Act, and the discussion in Bellv Deputy State Coroner of South Australia (2020) 138 SASR 467 at [113]-[131] (Blue J).
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.
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.
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.
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. 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.
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.
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.
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.

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
The following morning it was confirmed that judicial review proceedings would be commenced. The Coroner agreed not to proceed with Dr Brooks’ evidence.
Application for judicial review
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.
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.
The Attorney-General makes the overarching submission that the Coroner’s ruling focused on the efficiency of proceedings and the potential utility of the foreshadowed body of evidence without the witness having been asked a relevant question or identifying topics (more precisely than ‘ramping’).
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]
[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).
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
The Court of Appeal recently summarised the required approach in the following terms.[7]
[7]    Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67 at [39]-[45] (Doyle and Bleby JJA and Blue AJA).
[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 purpose[10]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense[11]. 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 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]
[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.
[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].
As the reference to the decision in Certain Lloyd’s Underwriters v Cross[18] 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]
[18] (2012) 248 CLR 378.
[19] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [65] (Gageler and Keane JJ).
Section 23A of the Act and comparable provisions
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
(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.
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 Australia[20] (‘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
(b) answering the question, or producing the record or document, would result in a breach of legal professional privilege.
[20] (2020) 138 SASR 467.
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]
[21] Bell (2020) 138 SASR 467 at [195].
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.
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.
[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).
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
(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.

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).
[23] Evidence Act 1995 (Cth); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act 2011 (NT).
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.
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.
[24] Rolfe v The Territory Coroner [2023] NTCA 8 (‘Rolfe’).
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 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])
[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).
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, 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.
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]
[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).
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 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.
There are three main differences[31] 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.
[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.
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.
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 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.
Two general observations may be made before considering the more difficult questions of construction requiring resolution.
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]
[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.
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 including[35] 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]
[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).
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.
[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).
Penalty privilege and self-incrimination privilege
This action for judicial review is concerned with the application of s 23A of the Act in the context of exposure to civil penalty.
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]
[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).
Penalty privilege has been recognised in curial proceedings since at least the sixteenth century[39] 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]
[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).
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]
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.
[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.
Despite its long lineage, a question arose in Pyneboard Pty Ltd v Trade Practices Commission[46] (‘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]
[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.

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’.
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]
[186] See, eg, Kontis v Coroners Court of Victoria [2022] VSC 422 at [151] (O’Meara J).
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 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.
[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].
Interests of justice
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.
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:
[188] [2013] NSWCA 419.
[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
(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 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.
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]
[189] [2022] VSC 422 at [155].
[190] [2022] VSC 422 at [163].
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]
[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).
Requirement that an answer have been given before certificate issues
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).
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.
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.
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]
[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].
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.
[194] Cornwell v The Queen (2007) 231 CLR 260 at [91] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
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]
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.
[195] New South Wales, Parliamentary Debates, Legislative Assembly, 17 October 2007, 2815.
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.
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.
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.
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).
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).
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.
…
(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.
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.
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]
[196] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
Its possible effect and implications may be analysed by assuming, as the text and structure of s 23A suggests, that the sequence[197] 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.
[197] Cf Shanahan v Jatese Pty Ltd (2018) 107 NSWLR 430 at [13] (Hammerschlag J).
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.
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.
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.
[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.

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.
[199] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
The grounds of review and the identification of jurisdictional error
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.
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 mistakes[201].
[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].
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 Sky[202] 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]
[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).
The plurality reasons in Stanley[205] 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]
[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).
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 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.
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.
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.
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.
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 law[210]), but that, it seems to me, is an error within jurisdiction. An error in respect of whether the section is concerned with being required to reveal (as distinct from commit) misconduct, seems to me to be more fundamental.
[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).
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.
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.
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 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.
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.
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.

[2024] SASC 148

18 December 2024