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Clause 128A

provides a process to deal with objections on the grounds of self-incrimination when complying with a search order (Anton Piller) or a freezing order (Mareva) in civil proceedings other than under the proceeds of crime legislation. Examples of search orders and freezing orders can be found in Orders 37A and 37B of the Supreme Court (General Civil Procedure) Rules 2005. This clause addresses, but does not implement, recommendation 15-10 of the 2005 LRCs' Report. The clause is based upon the VLRC Implementation Report. It provides that the privilege against self-incrimination under the Bill applies to disclosure orders. The principal provisions are outlined below. Subclause (2) provides that where objection is taken to the provision of information required under a disclosure order, the person who is subject to the order must prepare an affidavit containing the required information to which objection is taken (called a privilege affidavit), deliver it to the court in a sealed envelope, and file and serve on each other party a separate affidavit setting out the basis of the objection. Subclause (5) provides that if the court finds there are reasonable grounds for the objection, unless the court requires the information to be provided pursuant to subclause (6), the court must not require the disclosure of the information and must return it to the person. Subclause (6) provides that if the court is satisfied that the information may tend to prove that the person has committed an offence or is liable to a civil penalty under Australian law, but not under the law of a foreign country, and the interests of justice require the information to be disclosed, the court may require the whole or any part of the privilege affidavit to be filed and served on the parties. Subclause (7) provides that the court must give the person a certificate in respect of the information that is disclosed pursuant to subclause (6). Subclause (8) provides that evidence of that information and evidence of any information, document or thing obtained as a direct result or indirect consequence of the disclosure cannot be used against the person in any proceeding, other than a criminal proceeding in relation to the falsity of the evidence concerned. Subclause (9) clarifies that the protection conferred by clause 128A does not apply to information contained in documents annexed to a privilege affidavit that were in existence before a search or freezing order was made. Subclause (10) provides that a certificate has effect regardless of the outcome of any challenge to its validity. As discussed in relation to clause 128(8) above, this clause is in response to the Cornwell decision, and serves the same function. Clause 187 sets out the circumstances in which bodies corporate cannot claim this privilege. Division 3—Evidence excluded in the public interest