Australia: Section 89A Evidence Act 1995 (NSW) and Examinations by Commonwealth Agencies

Last Updated: 12 November 2013
Article by Philip Stern and Catherine Nguyen

Type : Focus Paper


The Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act 1995 (NSW) by adding a new section 89A.

Section 89A(1) provides:

In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact..
(b) that is relied on in his or her defence in that proceeding.

This provision only applies to "criminal proceedings for a serious indictable offence1", relevantly any offence punishable by imprisonment for at least five years.

The new provision permits an unfavourable inference to be drawn during proceedings for a serious indictable offence in circumstances where a defendant failed to mention during an interview with investigating officials something the defendant relies upon in the proceedings, and of which he/she would have been aware during the investigative phase. This inference cannot be drawn, however, if it is the only evidence of the defendant's guilt.2

The Commonwealth Evidence Act 1995 does not include this section. The NSW Evidence Act 1995 is applicable legislation with respect to the rules of evidence that apply in the trial of a person charged with an offence under the Corporations Act 2001 (Cth) (Corporations Act) (or other laws of the Commonwealth), in NSW.

Whilst the impetus for the new provision was to facilitate police interviews3, this article explores elements to the provision, in the context of Australian Securities and Investments Commission (ASIC) and other government agencies' private examinations, to determine its potential applicability to them.

Investigating Officials

The range of persons that constitute an "Investigating Official" to which section 89A(1) potentially applies is wide.

"Investigating Official" is defined as:

  1. a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
  2. a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences.4

ASIC, and other Commonwealth agencies (i.e. the Australian Taxation Office (ATO) and the Australian Competition and Consumer Commission (ACCC)) have power to require any person to attend their offices and undertake an interview if it has reason to suspect contraventions of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and Corporations Act, or other laws concerning the management of a company or fraud and dishonesty in relation to a company or financial products5, (for company law offences). By Section 23B Crimes Act 1914 (Cth) Australian Federal Police members are investigating officials for the purposes of that Act and so to are Commonwealth investigative officers if they have power to make arrests for offences under relevant legislation. Generally, it is the Federal Police who make arrests on referrals from the other statutory bodies.

To potentially enliven the provision, ASIC and other Commonwealth agencies must have reason to believe the examinee has committed a serious indictable offence.6 The belief does not need to be based on reasonable grounds. Whether a serious indictable offence is being investigated is to the particular agency's discretion, depending on the circumstances of the investigation.7

ASIC and other Commonwealth agencies' examinations are conducted by specified members or staff members.8 It is likely those officers are Investigating Officials as defined under section 3(b) Evidence Act 1995 (NSW), as the examiners are appointed and exercising their powers under the relevant statute to investigate possible serious indictable offences.

The conduct of the examinations likely constitute "official questioning" as defined under section 89A(9).9

Special Caution

Section 89A(1) captures a failure to mention a fact that the examinee could reasonably have been expected to mention in the circumstances existing at the time. Therefore, regardless of whether specific questions are asked, section 89A may apply and a negative inference may be drawn, if examinees do not provide all known information relating to the circumstances at the time.

Section 89A(2) further stipulates that the inference can only be drawn if an investigating official provides a "special caution" to the person before the failure or refusal to mention a fact.

A special caution is a caution to the effect that saying or doing nothing may result in an inference being drawn that may harm the person's defence because of his/her failure or refusal to mention a fact that is later relied on at trial.10 It may be a direct inconsistency with Section 23F Crimes Act 1914 (C'th), whereby the investigating official must give a caution before a person starts to answer questions that the person does not have to say or do anything, but that anything the person does say or do may be used in evidence.

Formal Notices of Examination

Prior to an ASIC examination, a formal notice of examination in the prescribed form, which states the general nature of the matter being investigated, must be issued on any person being examined.11 The notice must notify the examinee of the examinee's right to have their lawyer present, who may address the inspector and re-examine, and the abrogation of self- incrimination privilege.12 Notifications with words to the same effect are set out under a section 15513 notice issued by the ACCC, and under a section 26414 notice issued by the ATO.15

In a formal examination by the Commonwealth agencies, the examinee must answer all questions put to him or her. An answer given under an ASIC or ACCC examination may be (and usually is) required to be on oath16, whereas it must be given on oath in an ATO examination.17 The right to silence is removed by sections 68 of the ASIC Act, 155(7) of the Competition and Consumer Act and 8D of the TAA, which state that an examinee cannot refuse to, or fail to, give information. There is no discretion to refuse to, or fail to, answer a question.

Examinees can claim privilege against self-incrimination before responding to each question. The answer cannot be admitted in evidence in criminal or penalty proceedings,18 however is admissible in civil proceedings, proceedings for a disqualification order or banning order and proceedings against other persons.

Examinees that refuse to give an answer or fail to mention a fact expose themselves to being liable for contempt of the various agencies or the legislation. To illustrate, contempt of ASIC or the ASIC Act may attract penalties including $11,000.00 or 2 years in prison, or both.


The requirement under section 89A(2)(c) and (d) is that the special caution must be given in the presence of an Australian legal practitioner who was acting for the defendant at that time whom the defendant had been allowed a reasonable opportunity to consult with about the general nature and effect of special cautions. Presence is not defined, but its everyday interpretation means that the solicitor must be physically present.19

The provision can be circumvented if the examinee does not instruct a solicitor to be present.

This has serious implications as solicitors may be in a position where it is arguably in the best interests of their client to not have a solicitor present at examinations, to avoid the consequences of the special caution, particularly in circumstances of a failure to mention a fact. That is a reality for a solicitor, for example, who attends the NSW Police for an alleged fraud (which can also be a breach of Commonwealth legislation). However because a special caution explicitly pertains to the right to remain silent, which does not arise in ASIC and other specific Federal regulator examinations, it would appear not to have application to those examinations (but may in certain Australian Federal Police examinations). In those Federal agencies examinations there is an obligation to answer specific questions, but with privilege against self-incrimination able to be claimed. However in a police interview there are significant advantages also to the person being examined having a solicitor present; the solicitor may remind the examinee to refuse to answer questions, to clarify questions which may be confusing or ambiguous and preserve rights of clarification by reply to particular questions. The solicitor may also seek to seek a brief adjournment of the examination/investigation to properly take client instructions. All this is obviously lost if there is not a solicitor present.


It is unlikely that the new legislation applies to many Commonwealth regulatory examinations in NSW for serious offences but will apply to State examinations, (but not including by the Independent Commission Against Corruption where it is also compulsory to answer questions – see Section 37 Independent Commission Against Corruption Act 1988 (NSW)). It likely will apply to most Australian Federal Police examinations in NSW but there may be inconsistency between State and Commonwealth legislation. If so, the latter prevails by Section 109 Constitution. The examinee of a NSW State based investigation needs to consider whether to have a solicitor physically present during the examination and to volunteer material information at the examination even if not otherwise questioned on it, in order to preserve rights at trial. However to volunteer information may give the regulator information on which to prosecute the examinee or others, which it was otherwise unaware of, or lead to a trail of further enquiry in that regard. On balance it is our view that an examinee is better served by having a solicitor present, but the examinee needs to be informed in advance of the potential adverse implication by doing so arising from the new legislation. It is also anticipated that, at least initially, NSW regulatory authorities other than the State Police may not appreciate that the special caution legislation could apply to their examination and in the absence of giving a special caution any adverse inference by the failure to mention a fact would not be able to be drawn in a criminal trial. It is important if a person is being examined in New South Wales for the relevant legislation to be reviewed to see whether question answering is compulsory, or not and thus to see whether the special caution has application.


1A "Serious indictable offence" is an indictable offence punishable by imprisonment for life or for a term of 5 years or more.
2Evidence Act 1995 (NSW) Section 89A(5)(b).
3Evidence Amendment (Evidence of Silence) Bill 2013, Second Reading- The Hon. Michael Gallacher, Wednesday 20 March 2013.
4Evidence Act 1995 (NSW) Section 3.
5ASIC Act Section 13(1).
6Evidence Act 1995 (NSW) Section 89A(4).
7Evidence Amendment (Evidence of Silence) Bill 2013, Second Reading -The Hon. Michael Gallacher, Wednesday 20 March 2013.
8ASIC Act Section 19(2); Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) Section 155(1)(c) and Taxation Administration Act 1953 (Cth)(TAA) Section 8D(1).
9official questioning of a defendant in relation to a serious indictable offence means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence.
10Evidence Act 1995 (NSW) Section 89A (9).
11ASIC Act Sections 19(2) and 19(3); and Form 1 Schedule 1 ASIC Regulations 2001 (Cth).
12ASIC Act Section 19(3)(b). 13Competition and Consumer Act see Sections 155(5) and 155(7).
14Income Tax Assessment Act 1936 (Cth) Section 264.
15Dunkel v FCT (1990) 21 ATR 1279 (FCA).
16ASIC Act Section 19 and Competition and Consumer Act Sections 155(3) and 155(3)(A).
17TAA Section 8D( 2).
18ASIC Act Sections 68(3) and 76(1)(a) and Competition and Consumer Act Section 155(7).
19Evidence Amendment (Evidence of Silence) Bill 2013, Second Reading- The Hon. Michael Gallacher, Wednesday 20 March 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.