Deputy Commissioner of Taxation v Shi

The High Court of Australia heard an appeal by the Deputy Commissioner of Taxation (the appellant) against Mr Shi (the respondent). The dispute concerned the disclosure of information within a "Privilege Affidavit" prepared by Mr Shi, which he had sought to withhold from the Deputy Commissioner on the grounds that it might tend to incriminate him. This affidavit was prepared in response to disclosure orders made ancillary to worldwide freezing orders obtained by the Deputy Commissioner to secure Mr Shi's alleged unpaid taxation liabilities.

The central legal issues before the High Court were whether information contained within Mr Shi's Privilege Affidavit could be disclosed to the Deputy Commissioner under section 128A(6) of the *Evidence Act 1995* (Cth), and whether the interests of justice required such disclosure. The High Court also considered the onus of proof in establishing a claim for privilege against self-incrimination, particularly in relation to foreign law offences, and the application of the principle of legality to the interpretation of section 128A.

The High Court reasoned that the onus of establishing reasonable grounds for an objection based on self-incrimination rests with the party claiming the privilege, not the party seeking disclosure. Once reasonable grounds are established, a prima facie privilege arises, and the court is generally not to require the disclosure of the information. The Court noted that section 128A(6) does not impose a higher burden on the party claiming privilege than that already established by sections 128A(2) and (4). Furthermore, the principle of legality, which presumes that Parliament does not intend to impair fundamental rights like the privilege against self-incrimination without clear indication, supported an interpretation that placed a significant obstacle in the way of abrogating this privilege, especially concerning foreign law offences.

The High Court allowed the appeal with costs, setting aside the orders of the Full Court of the Federal Court. In their place, the High Court ordered that Mr Shi's Privilege Affidavit be filed and served on the Deputy Commissioner, subject to a stay pending a hearing by a single judge of the Federal Court to determine whether suppression or non-publication orders should be made under section 37AF of the *Federal Court of Australia Act 1976* (Cth). The Court also granted a certificate under section 128A(7) of the *Evidence Act 1995* (Cth) in respect of the Privilege Affidavit.