Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2)

In *Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2)*, the Federal Circuit Court of Australia considered an interlocutory application by the second and third respondents, Michael and Rowena Parkes, concerning their privilege against self-incrimination under section 128 of the *Evidence Act 1995* (Cth). The Fair Work Ombudsman had commenced proceedings alleging contraventions of the *Fair Work Act 2009* (Cth) and applicable awards by the first respondent company, and involvement in those contraventions by the Parkes. The Parkes sought to object to giving evidence that might tend to prove they had committed an offence against Australian or foreign law, and also sought a pseudonym order to protect their identities during the determination of this objection.

The primary legal issue before the Court was whether the Parkes had validly invoked their privilege against self-incrimination under section 128 of the *Evidence Act 1995* (Cth) and, if so, whether the Court should require them to give evidence subject to a certificate, or refuse the objection. A secondary issue concerned the application for a pseudonym order to protect the identities of the Parkes and the employees involved in the proceedings. The Court was required to determine if the objection was made on reasonable grounds and if the interests of justice warranted requiring the evidence.

Judge O'Sullivan reasoned that the objection under section 128 of the *Evidence Act 1995* (Cth) was premature and lacked sufficient clarity and specificity to be properly considered. The Court found that the respondents were not under any compulsion to give evidence at that stage, and the objection was advanced at an abstract level without identifying particular questions or matters. Consequently, the Court determined that section 128 was not enlivened and that there were no reasonable grounds for the objection as presented. The application for a pseudonym order was also dismissed, as the Court found no basis to grant it given the premature and unclear nature of the self-incrimination objection.

The Court ordered that the objection made on behalf of the second and third respondents be refused. Furthermore, an interim order made on 1 November 2017 was discharged, and the amended application in a case filed on 4 September 2017 was dismissed.