Australian Workers' Union v Registered Organisations Commissioner (No 5)

The Australian Workers' Union took legal action against the Registered Organisations Commissioner, seeking to compel a witness to testify in the Federal Court. The witness, Mr De Garis, had invoked the privilege against self-incrimination to avoid answering certain questions, thereby objecting to giving the evidence. This objection invoked s 128 of the Evidence Act 1995 (Cth), which pertains to the privilege in respect of self-incrimination in other proceedings.

The central legal issue before the court was whether the judge should compel Mr De Garis to give the evidence he had objected to, under s 128(4) of the Evidence Act. This section permits the court to require a witness to give evidence if the court is satisfied that the evidence does not tend to prove that the witness has committed an offence or is liable to a civil penalty, and that the interests of justice require the witness to give the evidence. The court had to determine if these conditions were met.

The court found that Mr De Garis had invoked the privilege against self-incrimination reasonably, as he had genuine concerns about the potential for the evidence to incriminate him. However, the court also considered the broader context of the proceedings and the importance of the evidence to the case. The court concluded that the interests of justice required Mr De Garis to give the evidence, as it was necessary to resolve the dispute between the Australian Workers' Union and the Registered Organisations Commissioner. Therefore, the court exercised its discretion under s 128(4) of the Evidence Act to compel Mr De Garis to give the evidence.

The final orders of the court required Mr De Garis to give the evidence he had objected to, subject to the protections provided by s 128 of the Evidence Act. This included the issuance of a certificate to shield him from the use of the evidence or any information derived from it in any criminal proceedings related to the falsity of the evidence.