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  • Penalty privilege applies to natural persons in Fair Work Act proceedings.
  • Where a person claims the penalty privilege, the person need only file a bare defence. The person can also file evidence after the applicant has closed its case.
  • A person may waive the penalty privilege by taking steps inconsistent with it, hence care must be taken when drafting a defence.

Those alleged to be accessories in civil remedy proceedings under the Fair Work Act 2009 (Cth) are often natural persons. Natural persons, unlike corporations, are entitled to rely on a privilege against exposure to penalties. This makes it harder for applicants and the regulator to prove the allegations against them.

This article examines ‘penalty privilege’. It discusses the extent to which the penalty privilege has been abrogated by the Fair Work Act and how to rely on the penalty privilege during judicial proceedings in light of court rules and the Evidence Act 1995 (Cth) (‘Evidence Act’).

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