Laws that exclude the right to claim the privilege

11.71  A range of Commonwealth laws empower federal agencies to conduct coercive information-gathering investigations. For the purpose of performing their investigatory functions, these agencies have the power to require a person to produce documents and answer questions. Most of these laws provide that those answers or documents are not admissible against the person in criminal proceedings or proceedings for a penalty. It is possible to characterise these laws as preserving the privilege against self-incrimination, because of inadmissibility of the material.^[100] For the purpose of this Inquiry, these laws will be characterised as excluding the privilege, because at common law there is a right not to speak, rather than a right not to have one’s answers used against one.^[101] If this broader approach to the right is taken, there are many provisions in Commonwealth laws that exclude the right to claim the privilege against self-incrimination. Most include use or derivative use immunity. However, as Professor Ben Saul and Michelle McCabe reported, ‘there is no consistent approach to the individual rights and protections available’.^[102]

11.72  This chapter will focus particularly on laws that abrogate the privilege and offer either no immunity, or use immunity only. Such laws give federal government agencies, including the Australian Tax Office (ATO), ASIC, ASIO, the ACC, and the Australian Competition and Consumer Commission (ACCC), powers to require persons to answer questions or produce documents.

Taxation

11.73  Section 353–10 of sch 1 of the Taxation Administration Act 1953 (Cth) provides that the Australian Tax Commissioner may require a person to give the Commissioner any information that the Commission requires, attend and give evidence before the Commissioner, or produce any document in the person’s custody or control. The Commissioner may also enter premises and inspect and make copies of any documents.^[103]

11.74  This provision does not expressly abrogate the privilege against self-incrimination, but in Deputy Commissioner of Taxation v De Vonk the Federal Court said:

If the argument were to prevail that the privilege against self-incrimination was intended to be retained in tax matters, it would be impossible for the Commissioner to interrogate a taxpayer about sources of income since any question put on that subject might tend to incriminate the taxpayer by showing that the taxpayer had not complied with the initial obligation to return all sources of income.  Such an argument would totally stultify the collection of income tax.^[104]

11.75  However, the Court also held that the coercive questioning of a taxpayer about matters that are before the court could amount to contempt.^[105]

11.76  The Tax Institute raised concerns about these powers. It submitted that the laws should be subject to the privilege against self-incrimination. It also noted that there are provisions in the Taxation Administration Act which allow the disclosure of information by taxation officers to the court for the purpose of criminal proceedings, and was concerned that the encroachment on the privilege is not ‘balanced by statutory limitations on derivative use of the information in criminal proceedings’.^[106]

11.77  The ATO has indicated that its notice powers, which include the power to require a person to attend and give evidence, are

wide and flexible, but they are not unlimited. We endeavour to exercise our powers:

• in good faith

• in strict compliance with the law under which the notice has been issued

• for the proper purposes of that law.^[107]

11.78  On its face, s 353–10 is a significant encroachment on the common law privilege against self-incrimination. It is not balanced by any statutory immunity, although the court’s inherent power to ensure a fair trial provides some protection. It may be that this encroachment is necessary for the protection of public revenue. Further review should consider whether this provision is appropriately justified, or whether statutory protections should be made available.

Corporate and commercial regulation

11.79  ASIC is the Commonwealth’s corporate, markets and financial services regulator. It is empowered to compel persons to produce books and attend examinations and answer questions.^[108] The privilege against self-incrimination is not available, but use immunity is available regarding statements and the signing of a record.^[109] ASIC may only begin an investigation if it has reason to suspect wrongdoing,^[110] and may only question a person if it has reasonable grounds for believing that the person can provide relevant information. ^[111] However, there is no requirement that ASIC suspect that the person questioned was involved in the wrongdoing. ASIC may release the transcripts to private litigants and government agencies in certain circumstances.^[112]

11.80  ASIC may also apply to a court for an officer or a provisional liquidator of a corporation to be summoned for a public examination about the corporation’s affairs. The privilege against self-incrimination is not an excuse for not answering a question, and use immunity is available.^[113]

11.81  ASIC submitted that because company officers occupy positions of trust, and have extensive opportunities to commit wrongdoing and cause immense harm, the need to regulate them justifies excluding the privilege. ASIC also suggested that company officers should be considered to be voluntary participants in a regulatory scheme, which would justify the abrogation of the privilege. ^[114]

11.82  ASIC’s powers, particularly regarding the use to which compelled disclosures may be put, have been the subject of several reviews since 1989. In 1989, derivative use immunity became available in the Corporations Law. In 1991, the Joint Statutory Committee on Corporations and Securities—now the Parliamentary Joint Committee on Corporations and Financial Services—conducted an inquiry into use immunity provisions in the Corporations Law. It reported on the concerns raised by the Australian Securities Commission (now ASIC) that ‘the danger of imperilling future criminal prosecutions has led the Commission to decide not to formally interview witnesses’, meaning that the power of compulsory examination was not used.^[115] One outcome was that ‘investigations which could be discharged within a period of months are taking periods of years’.^[116] The Director of Public Prosecutions raised concerns that a prosecutor might have to prove that each piece of evidence tendered was not acquired as a result of information disclosed in a compelled examination.^[117] Other stakeholders challenged these claims.^[118]

11.83  The Committee recommended removal of the derivative use immunity provisions and they were in fact removed in 1992. A 1997 review of that legislative change by John Kluver found that the amendments ‘greatly assisted the ASC in its enforcement of the national scheme laws, primarily by increasing the Commission’s ability to more fully and expeditiously utilise its power to conduct compulsory oral examinations’ but had not led to examinees being unjustifiably prejudiced.^[119]

11.84  Professor Gans criticised the quality of both the Joint Statutory Committee’s review and the Kluver review. He argued that the concerns about derivative use immunity have been overstated,^[120] while ASIC restated its concerns about such an immunity impeding the regulation of corporations and the prosecution of criminal activities.^[121] In particular, ASIC expressed concern that derivative use immunity would exclude evidence discovered as a result of the disclosure, ‘even if it would or could have been discovered without the particular information disclosed by the person’.^[122] ASIC offered examples of situations where a suspect would be effectively rendered ‘conviction-proof’ for an unforeseeable range of offences by such an immunity.^[123]

11.85  In later submissions, both ASIC and Professor Gans pointed to a possible model approach to immunity—a flexible approach that would exclude some, but not all, derivative evidence.^[124] This model is discussed further in the conclusion to this chapter.

Serious and organised crime

11.86  The ACC is a criminal intelligence agency, responsible for investigating serious and organised crime. The ACC Board may declare that an investigation is a ‘special investigation’, in which case the coercive information-gathering powers in pt II div 2 of the Australian Crime Commission Act 2002 (Cth) (ACC Act) are available.^[125]

11.87  The ACC may summon a person for questioning.^[126] Failing to attend or answer questions, as required by a summons, is an offence.^[127] Self-incrimination is not an excuse for such failure, but if the person claims that answering the question or producing a document might incriminate the person, the answer or document is not admissible in a criminal proceeding.^[128]

11.88  There are safeguards in the Act, including a requirement that an examination must be held in private. Transcripts and derivative material may be disclosed to the prosecutor of the examinee,^[129] but the examiner must direct that a transcript must not be published if to do so would prejudice the person’s safety or their fair trial.^[130]

11.89  The predecessor to the ACC Act was the National Crime Authority Act 1984 (Cth), which, for a time, provided derivative use immunity to witnesses. When the legislation was changed to allow use immunity only, the Explanatory Memorandum said:

The Authority is unique in nature and has a critical role in the fight against serious and organised crime. This means that the public interest in the Authority having full and effective investigatory powers, and to enable, in any subsequent court proceedings, the use against the person of incriminating material derived from the evidence given to the Authority, outweigh the merits of affording full protection to self-incriminatory material.^[131]

11.90  Part II div 2 was recently the subject of High Court consideration in X7 v Australian Crime Commission (X7 v ACC).^[132] The plaintiff was charged with drug trafficking offences, and while in custody, was served with a summons to appear before an ACC examiner. When he declined to answer questions concerning the subject matter of the charges, he was informed that he would be charged with failing to answer questions.

11.91  The Court held (by majority) that the ACC Act did not authorise the examination of an accused person about the subject matter of the pending charge. Hayne and Bell JJ said that if the provisions did this, ‘they would effect a fundamental alteration to the process of criminal justice’, and that such an alteration could only be made ‘clearly by express words or necessary intendment’.^[133] Kiefel J agreed, and added that ‘the conduct of any inquiry parallel to a person’s criminal prosecution would ordinarily constitute a contempt because the inquiry presents a real risk to the administration of justice’.^[134]

11.92  Since X7 v ACC, the ACC Act has been amended to clarify that an ACC examiner may question a person who has been charged with an offence about matters that are the subject matter of the charge.^[135] The Explanatory Memorandum for the amending act indicated that these amendments were necessary to ensure that the ACC has ‘appropriate powers to understand, disrupt and prevent … serious and organised criminal activity’. It also noted that requiring the ACC to wait until the conclusion of criminal proceedings to examine the person ‘would diminish the value of any intelligence gained out of the examination or hearing about the contemporary activities, operations and practices of the organised criminal group’.^[136]

11.93  The Law Council has expressed concern that the amendments to the ACC Act ‘would allow derivative use to be made of post-charge examination material, which could then be made available to the prosecutor of the person being examined, which may affect the right to a fair trial’. The Law Council suggested that ACC examiners should be required to seek judicial authorisation before conducting a post-charge examination of a witness, providing a further safeguard to the right to a fair trial.^[137]

Proceeds of crime

11.94  The ACC has joint responsibility, with the Australian Federal Police and the Commonwealth Director of Public Prosecutions, for the administration of the Proceeds of Crime Act 2002 (Cth). This Act enables the seizure of property used in, or derived from, terrorism offences, and the confiscation of profits from drug trafficking, people smuggling, money laundering and large-scale fraud.^[138] Several provisions exclude the privilege against self-incrimination:

• s 39A excludes the use of the privilege as a reason to refuse to provide a sworn statement to the Australian Federal Police under s 39(1)(d) where authorities harbour a suspicion that a  person may have information about, or assets derived from, the suspected criminal activities of others. Use immunity is available.

• s 206 is a similar provision that states that the privilege does not excuse a person from providing information with regard to a production order. Use immunity is available.

• s 271 provides that a person is not excused from providing information to the Official Trustee if the information may tend to incriminate them. Derivative use immunity is available.

Competition and consumer law

11.95  The Competition and Consumer Act 2010 (Cth) includes several provisions that encroach on the privilege against self-incrimination. The most important of these is s 155, which allows a member of the ACCC to issue a notice requiring a person to provide information, documents, or evidence, if the ACCC has reason to believe that the person has information about a contravention of the Act. Self-incrimination is not an excuse not to answer, and use immunity is available. The Act also includes other coercive information-gathering powers that exclude the privilege against self-incrimination, all of which provide use or derivative use immunity.^[139]

11.96  The ACCC has noted that there are implied limits on the use of s 155 powers, and in particular, that

issuing s 155 notices to respondents in proceedings instituted by the ACCC may interfere with rights and protections against self-incrimination … which apply in court proceedings, and may interfere with the court’s inherent power to conduct its own proceedings … Accordingly, the ACCC is unlikely to issue a notice addressed to a respondent or non-party to ACCC proceedings where the notice relates to the subject matter of those proceedings.^[140]

National security

11.97  ASIO’s main role is ‘to gather information … that will enable it to warn the government about activities or situations that might endanger Australia’s national security’.^[141]

11.98  The Director-General may request a warrant authorising a person to be taken into custody and questioned.^[142] Section 34L(8)provides that a person cannot fail to provide information to ASIO officers even if that information may incriminate them.^[143] Use immunity is available in s 34L(9).

11.99  According to the Explanatory Memorandum,

[T]he normal privilege against self-incrimination does not apply in relation to proposed new subsection 34G(8) to maximise the likelihood that information will be given or records or things produced that may assist to avert terrorism offences.  The protection of the community from such violence is, in this special case, considered to be more important than the privilege against self-incrimination.^[144]

11.100       Several stakeholders raised concerns about this provision.^[145] Lisa Burton, Nicola McGarrity and Professor George Williams considered that

the problem with these justifications is that they are not reflected in the criteria for issuing a questioning warrant. That is, the legislation does not require any proof of imminent danger or that the intelligence sought is capable of preventing a terrorism offence before coercive questioning is permitted.^[146]

11.101       Statutory safeguards are contained within the legislation, including the requirement for a warrant, an explanation to the person about what the warrant authorises ASIO to do, provision for interpreters, permission from a judge if questioning continues for more than eight hours, and a requirement for humane treatment.^[147]

11.102       The Law Council considered that this law may unjustifiably exclude the privilege, noting that a person

may be required to give information regardless of whether doing so might tend to incriminate the person or make them liable to a penalty. The mandatory presence of a police officer throughout questioning, required by ASIO’s Statement of Procedures, ensures law enforcement agencies have ready access to information and material provided to ASIO by the detained person, and thus may increase the likelihood of derivative use of information in a subsequent prosecution brought against the person who has been compelled to divulge it.^[148]

11.103       When considering s 34L(8), the Independent National Security Legislation Monitor (INSLM) noted that  it is ‘not at all unusual for laws to abrogate the privilege against self‑incrimination albeit with protection against the use of such answers in criminal proceedings’. Given this, the INSLM concluded:

[o]n balance and provisionally, the view of the INSLM is that there are so many such provisions given effect every day in Australia that the issue cannot be given top priority. It does seem as if the pass has been sold on statutory abrogations of this privilege.^[149]

11.104       The Australian Human Rights Commission also raised concerns about this provision, particularly the lack of protection against derivative use.^[150]

Workplace relations laws

11.105       The Terms of Reference for this Inquiry ask the ALRC to include particular consideration of Commonwealth laws in the areas of commercial and corporate regulation, environmental regulation and workplace relations.

11.106       Several provisions in workplace relations legislation exclude the privilege against self-incrimination, primarily for the purpose of empowering Commonwealth officials to examine individuals in relation to workplace offences. The following provisions include use and derivative use immunities:

• Fair Work Act 2009 (Cth) s 713 provides that a person is not excused from producing a record or document under ss 709(d) and 712 on the grounds that it may tend to incriminate that person;

• Fair Work (Registered Organisations) Act 2009 (Cth) ss 337 and 337A provide that a person may not refuse to give information, produce documents or answer questions on the ground that the information may incriminate that person; and

• Fair Work (Building Industry) Act 2012 (Cth) s 53 provides that a person may not refuse to give information, produce documents, or answer questions if required to do so by an examination notice relating to a building industry workplace investigation on the grounds that it may incriminate the person.

11.107       The ACTU criticised the encroachment on the privilege in workplace relations laws. It suggested that abrogating the privilege is justifiable when the intention is to avoid ‘serious damage to property or the environment, danger to human life or significant economic detriment’. It commented that

[n]o satisfactory explanation has been offered as to the abrogation of the privilege in the industrial arena. The enforcement of industrial law … simply does not go to these issues of vital public importance’.^[151]

Environmental regulation

11.108       A number of Commonwealth laws with the objective of environmental protection encroach upon the privilege against self-incrimination, and all provide both use and derivative use immunities. For example:

• Quarantine Act 1908 (Cth) s 79A;

• Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) ss 189, 202;

• Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 112,  486J;

• Great Barrier Reef Marine Park Act 1975 (Cth) s 39P(4);

• Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) ss 44(4), 46S(4).

Uniform Evidence Acts

11.109       The common law privilege against self-incrimination is replaced by s 128 of the Uniform Evidence Acts in federal courts, New South Wales, Victoria, Tasmania, the ACT and the Northern Territory. These provisions encroach on the common law privilege to the extent that a court may require the witness to give evidence ‘if the interests of justice require’.^[152] If a witness is required to give incriminating evidence, the court must give the witness a certificate which provides that the evidence cannot be directly or indirectly used against the witness in any proceeding in an Australian court.^[153]

11.110       The Uniform Evidence Acts are only relevant to court proceedings, and do not apply to compulsory questioning by other government agencies.

Other laws

11.111       A large number of other laws exclude the right to claim the privilege, some expressly, and some by necessary intendment. The ALRC has identified 26 laws that provide use immunity only and 46 that provide derivative use immunity.^[154] These laws cover a wide range of areas, including the regulation of transport, charities, sports doping, crime and the proceeds of crime, superannuation and many other matters.