Why you MUST know what a Section 128 Certificate is...

A section 128 certificate refers to section 128 of the Evidence Act 1995 (Cth/ACT/NSW).

It allows a witness — including YOU — to give evidence that might otherwise incriminate you, without that evidence being usable against you in future criminal proceedings.

In other words:

It lets you answer questions fully and truthfully

without risking self-incrimination

(except for perjury).

This is crucial in FVO hearings, because they are civil proceedings, but often involve allegations that — if true — could form the basis of a criminal charge.

The certificate removes the “criminal jeopardy” from your evidence.

WHEN SHOULD YOU SEEK A S128 CERTIFICATE?

Three main situations:

1. When cross-examination is heading into criminal territory

If a question could imply:

• assault,

• stalking,

• sexual behaviour,

• property damage,

• threats,

• or any alleged conduct that could theoretically be charged,

…you may seek a s128 certificate before answering.

2. When the other party is using the FVO process to manufacture criminal allegations

If you believe your ex (or her lawyers) are fishing for admissions to hand to police later, the certificate blocks their ability to weaponise your evidence.

3. When you need to give full contextual evidence

Sometimes you need to explain something truthfully, even if a twisted version of it might look incriminating when taken out of context.

A s128 certificate lets you tell the story without fear.

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HOW TO ASK FOR A S128 CERTIFICATE

You ask orally.

Politely.

Calmly.

Like a man who knows exactly what he’s doing.

Here’s the script:

Your Honour, I seek the protection of a certificate under section 128 of the Evidence Act before answering that question.

I have reasonable grounds to believe that my answer may tend to incriminate me or expose me to a penalty.

The Magistrate may:

1. Stand the matter down;

2. Warn you of your rights;

3. Decide whether to grant the certificate;

4. If granted, direct you to answer.

Once granted, the certificate protects both oral and written evidence relating to that line of questioning.

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WHAT DOES A S128 CERTIFICATE DO?

It creates a protective shield:

Your answers:

✓ can be used in the FVO hearing (civil)

✗ CANNOT be used in any criminal prosecution

✗ CANNOT be provided to police as incriminating admissions

✗ CANNOT be used except for perjury or giving false evidence

This means the applicant’s lawyers can’t run a two-track strategy:

• use the civil court as a fishing expedition,

• then hand your answers to police.

Section 128 slams that door shut.

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WHEN TO REFUSE TO ANSWER A QUESTION

This is important.

If you’ve requested a s128 certificate and the Magistrate:

• refuses,

• or doesn’t deal with it properly,

…you may then say:

Your Honour, I respectfully decline to answer on the basis of the privilege against self-incrimination.

If they push you, you insist.

Courts are bound to uphold the privilege.

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SECTION 128 IN FVO MATTERS: THE STRATEGIC CORE

Here’s why this is vital to your world, Jules.

Most FVO hearings involve:

• vague allegations,

• undefined “patterns of behaviour”,

• invented timelines,

• police “interest” that doesn’t exist,

• and a respondent being baited into saying something that can be misused.

Applicants and some lawyers sometimes try to corner you like this:

“Did you ever raise your voice at her?”

“Did you ever touch her in a way that made her uncomfortable?”

“Did you ever enter the room after she told you not to?”

All of these are designed to harvest admissions that sound incriminating.

A s128 shuts that down.

It protects your right to a civil defence without creating criminal vulnerability.

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CAN YOU REQUEST A S128 IN ADVANCE?

Yes — you can flag it at the start of the hearing:

“Your Honour, given the applicant’s allegations, there is potential criminal overlap.

I foreshadow that I may need to seek the protection of a certificate under s128 of the Evidence Act when giving evidence.”

This puts the court on notice and stops anyone claiming surprise later.

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A HIGH-LEVEL TACTIC (MOST LAWYERS DON’T TELL SELF-REPS)

If you do get the certificate, and you win your case, the other side cannot then pivot and try to use your own sworn answers to revive the allegations via police.

If you lose, the certificate becomes part of the appeal record because:

Granting or refusing a s128 certificate engages procedural fairness.

Any error in handling it is grounds for appeal — all the way up to the High Court.

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THE GOLDEN RULE OF SECTION 128

Never answer a question that could sound criminal

until you’ve either:

(A) obtained a s128 certificate, or

(B) asserted privilege.

Once words leave your mouth, you can’t un-say them.

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Final Warning: Police Can Use Anything You Say Against You

Here’s the uncomfortable truth that every respondent needs to understand:

Anything you say in an FVO hearing

can be used against you in a criminal investigation.

Police can — and do — take the most innocent, benign, or consensual interactions and reinterpret them through a criminal lens if they decide to investigate or charge.

It doesn’t matter if it happened years ago.

It doesn’t matter if no one complained at the time.

It doesn’t matter if you believe the conduct was harmless.

Here’s an example we give self-represented people to make it brutally clear:

You admit, truthfully, that you once gave your partner a playful smack on the backside.

In real life, it was affectionate.

In a criminal brief, it instantly becomes a “question of consent”.

The police do not write words like “playful”, “affectionate”, or “benign”.

They write: “slap to the buttocks”.

Prosecutors don’t argue about the context.

They ask one thing:

“Did she consent?”

And if she now says she didn’t — even if she once enjoyed it, invited it, or reciprocated — you are suddenly dealing with an allegation of common assault, sexual touching, or indecency.

This is why respondents must never wander into criminal territory without protection.

It is not paranoia.

It is structural reality.

Police and prosecutors are trained to:

• isolate the physical act

• strip away context

• treat all intimacy as potential assault

• and reframe ordinary relationship dynamics as criminal conduct

And if you voluntarily provide them with the raw material — through an unprotected answer in an FVO hearing — they will use it.

That is why Section 128 certificates exist.

That is why the privilege against self-incrimination exists.

That is why you must never casually answer questions that could later be twisted into “improper touching”, “non-consensual contact”, or “intimidation”.

In the current climate, even a single misinterpreted gesture can be turned into a charge sheet.

So protect yourself.

Every time.

Without exception.