The High Court finds privilege against self-incrimination is thinner than most imagined – DCT v Shi [2021] HCA 22 (4 August 2021)

5 August 2021
Glenn McGowan KC, Partner, Melbourne

DCT v Shi

[2021] HCA 22 (4 August 2021)

Majority: Kiefel CJ, Gageler, Gordon & Gleeson JJ

Minority: Edelman J


The High Court has found that the privilege against self-incrimination is thinner than most imagined, ordering disclosure of information claimed to be privileged.

A witness can object to giving evidence on the ground that to do so may tend to prove the witness has committed an offence or is liable to a civil penalty – s128(1). The Court judges whether the objection is reasonable – s128(2)-(4).

Section 128A provides a further exception to the privilege beyond those in s128(2)-(4).

Section 128A is concerned only with freezing orders and the usual disclosure order which accompanies them. The objection based on the privilege against self-incrimination must then disclose the information in a ‘privilege affidavit’ delivered to the Court in a sealed envelope – s128A(2). The Court then assesses whether there are reasonable grounds for the objection – s128A(4). The outcome of that assessment, together with a determination of whether doing so is in the interests of justice, determines if the contents of the privilege affidavit are disclosed to the other parties – s128A(6).

Even if disclosed, the information cannot be later used in other proceedings except as to its falsity – s128A(8).

The High Court determined by majority that in this case Mr Shi’s privilege affidavit should be disclosed in the interests of justice – s128A(6)(c). Specifically, the High Court held that it was irrelevant and wrong for the lower courts, in determining whether the information should be disclosed, to take into account whether the information could be more appropriately obtained through some other compulsory process, eg s108 Civil Procedure Act 2005 (NSW) or s353-10 of Sched 1 to Taxation Assessment Act 1953 (Cth).

The High Court’s decision in this case will set the precedent for the ways in which information can be obtained and collected in future. Our advice is that all avenues for the obtaining of such information are explored, especially where government agencies are involved.

Please contact the authors or your usual Gadens partner if you would like us to work with you to explore the avenues available in your particular circumstances.

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Authored by:

Glenn McGowan QC, Partner
Hayley Phillips, Senior Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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