The penalty privilege: assessing its relevance in trade practices cases

Brenda Marshall, University of Queensland

Abstract

This article focuses on the current status of the privilege against self-exposure to a civil penalty, although its close relationship with the privilege against self-incrimination necessitates some degree of parallel discussion. Whilst trade practices cases once provided a relevant forum for successful claims to the penalty privilege, recent judicial and statutory developments, including the enactment of the Evidence Act 1995 (Cth), lead to the inevitable conclusion that scope for the continued operation of the penalty privilege in such cases is extremely limited.