Justice Blue’s clear and thorough reasons in Bell v Deputy Coroner of South Australia  SASC 59 usefully rehearse and summarise the law relating to the privilege against penalties, its application in non-curial settings, and the circumstances in which an intention will be imputed to parliament to abrogate the privilege, including in the situation where express provision is made in relation to the separate and distinct privilege against self incrimination. His Honour found at  –  that:
- the Coroner’s Court is a court of record, so it is not a non-curial setting for the purposes of penalty privilege analysis;
- there is a tension in the dicta of the High Court as to the applicability of the penalty privilege in non-curial settings which did not need to be decided in this case;
- the will of parliament is an abstract concept and is not ascertained by speculating about what was probably going through parliamentarians’ minds (at );
- it is wrong to say that where specific exceptions by reference to common law privileges are given by statute to a statutory obligation to comply with a power of compulsion, other statutory privileges should be taken by implication to have been abrogated;
- rather, it is correct to start from the proposition that common law privileges are not intended to be abrogated otherwise than by clear words or necessary intendment;
- s. 23 of the Coroners Act 2003 (SA) (reproduced below) did not impliedly abrogate the privilege against penalties: parliament legislated specifically in relation to the privilege against self-incrimination out of an abundance of caution (), and the fact that it did not also do so in relation to the penalty privilege is neither here nor there.
A second set of reasons, including in relation to costs is at  SASC 77.
Section 23 of the Coroners Act 2003 (SA) provides:
‘(1) The Coroner’s Court may …
(a) by summons, require the appearance before the inquest of any person; or
(b) by summons, require the production of any relevant records or documents ….
(2) If a person fails without reasonable excuse to comply with a summons to appear before the Court … the Court may issue a warrant to have the person arrested and brought before the Court…
(4) A person who fails, without reasonable excuse [to comply] commits a contempt of the Court.
(5) However, a person is not required to answer a question, or to produce a record or document, under this section if–
(a) the answer to the question, or the contents of the record or document, would tend to incriminate the person of an offence; or
(b) answering the question, or producing the record or document, would result in a breach of legal professional privilege.’
Paragraph 24 provides that the Court is not bound by the rules of evidence and may inform itself on any matter as it thinks fit, and must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.
- Penalties privilege and the corporate interrogee
- The concurrent operation of the new Evidence Act, 2008 and of the Legal Profession Act, 2004
- Anonymous tip-offs and litigation privilege
- Changes to legal professional privilege operate retrospectively
- High Court on whether client’s identity can be privileged