Silent Partners? Trade Unions, Corporations and Penalty Privilege in the Federal Court of Australia

Abstract

‘Penalty privilege’ is sometimes referred to as ‘the right to silence’ or more correctly the privilege against self-exposure to civil penalty. It is a procedural rule that applies equally to trade unions and corporations in Australian federal courts. This article critically investigates this equality of this treatment, revealing its historical evolution and arguing that it results in unequal outcomes, relative to the social and historical roles of unions and corporations. But it also discovers distinct incoherence in the application of penalty privilege, along with a host of related legislative interventions that have sought to entrench the equal treatment of trade unions and corporations more broadly. Accordingly, this article proposes a range of reform, with a particular focus on the application of penalty privilege in the federal arena. A more coherent application of penalty privilege, it is proposed, is one that applies in proportion to the social power exercised by persons and entities before the Court.