Justifications for excluding the privilege against self-incrimination

12.71   The right to claim the privilege against self-incrimination is not absolute and may be removed or diminished by statute.^[94] In Hamilton v Oades, the High Court held that

it is well established that Parliament is able to interfere with established common law protections, including the right to refuse to answer questions, the answers to which may tend to incriminate the person asked.^[95]

12.72   The High Court has observed that legislatures may choose to exclude the privilege ‘based on perceptions of public interest, to elevate that interest over the interests of the individual in order to enable the true facts to be ascertained’.^[96]

12.73   Removing the right to claim the privilege, while providing immunities regarding the use of the information, may serve the public interest in having information revealed to agencies responsible for investigating crime or misconduct. Gathering information for the purpose of investigating serious crime or maintaining regulatory schemes is an important function of the executive branch of government.

12.74   Again, the High Court said in X7 v Australian Crime Commission:

legislatures have, in different settings, abrogated or modified the privilege when public interest considerations have been elevated over, or balanced against, the interests of the individual so as to enable true facts to be ascertained. Longstanding examples such as the compulsory public examination of a bankrupt, or of a company officer (when fraud is suspected), serve a public interest in disclosure of the facts on behalf of creditors and shareholders which overcome some of the common law’s traditional consideration for the individual.^[97]

12.75   The High Court, in the passages above, described the public interest being balanced against the individual’s interest in avoiding self-incrimination. A slightly different approach was taken by the Queensland Law Reform Commission in its 2004 report, The Abrogation of the Privilege Against Self-incrimination, where two public interests were described:

In relation to the privilege against self-incrimination there is, on the one hand, the public interest in upholding the policies that underlie what has come to be judicially recognised as an important individual human right. On the other hand, there is a public interest in ensuring that relevant authorities have adequate powers to inquire into and monitor activities that give rise to issues of significant public concern.^[98]

12.76   Stakeholders and commentators have proposed a range of factors that should be considered in the balancing exercise.

Public benefit and avoiding serious risks

12.77   The Law Council said that to justify abrogating the privilege, there should be an ‘assessment that the public benefit which will derive from negation of the privilege must decisively outweigh the resultant harm to the maintenance of civil rights’.^[99] The Council suggested that an investigation into ‘major criminal activity, organised crime or official corruption’ might justify an abrogation of the privilege, as would risks such as ‘danger to human life, serious personal injury or damage to human health, serious damage to property or the environment or significant economic detriment’.^[100]

12.78   The ACTU offered a similar list of risks that might justify restricting the privilege, including ‘serious damage to property or the environment, danger to human life or significant economic detriment’.^[101] This submission approved of the abrogation of the privilege in the Model Work Health and Safety Act, noting that nearly 200 workers were killed in 2013, and arguing that the clear public interest in healthy and safe workplaces justified the abrogation. The ACTU contrasted work safety laws with the regulation of industrial action, and said:

No 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.^[102]

12.79   In 2000, the Senate Standing Committee for the Scrutiny of Bills expressed concern at the loss of the privilege, and (citing its own 1993 report) commented that:

it was ‘reluctant to see the use of provisions abrogating the privilege—even with a use/derivative use indemnity—being used as a matter of course.’ The Committee preferred to see the use of such provisions ‘limited to “serious” offences and to situations where they are absolutely necessary’.^[103]

12.80   ASIC also considered that ‘the importance of the public interest sought to be advanced by the exclusion’ is relevant to the assessment of whether a law that excludes the privilege against self-incrimination is appropriately justified.^[104]

Proportionality

12.81   Justifications that refer to public benefit and the investigation of serious offences implicitly incorporate a proportionality approach, in that these justifications compare the seriousness of the infringement of the privilege with the importance of the objective sought to be achieved by the infringement.^[105] Such an approach was explicitly proposed by two stakeholders. The Law Council said:

Other considerations include whether the information could not reasonably be obtained by any other lawful means; whether the abrogation is no more than is necessary to achieve the identified purpose; and the consequences of abrogation.^[106]

12.82   Professor Gans et al also endorsed a proportionality approach when explaining the balancing exercise which must be conducted in any coercive information-gathering exercise:

These processes may limit the privacy of citizens, but, assuming that the material gathered is sufficiently narrow and the government’s purposes are proportionate to the infringement, they will be compatible with the right.^[107]

12.83   The Parliamentary Joint Committee on Human Rights has noted that, while art 14(3)(g) of the ICCPR protects the right to be free from self-incrimination, the right is ‘subject to permissible limitations, provided that the limitations are for a legitimate objective, and are reasonable, necessary and proportionate to that objective’.^[108]

12.84   Under the European Convention on Human Rights, the right to a fair trial is absolute, but the implied right against self-incrimination may be restricted to achieve a legitimate aim, if there is ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realised’.^[109] In Procurator Fiscal v Brown the Privy Council considered whether road traffic legislation—which required a person to identify the driver of a car—was compatible with the implied right against self-incrimination. It was relevant to the proportionality test that the legislation in question was road traffic legislation, with the important and legitimate aim of protecting public safety. The court noted that there were 37,770 fatal and serious accidents in 1998 in Great Britain, and that it can be difficult for the police to identify drivers of vehicles. The restriction on the privilege was held to be compatible with the Convention.^[110]

Voluntary participation in regulatory scheme

12.85   Infringements on the privilege may be justified when the person required to provide information is a voluntary participant in a regulatory scheme.^[111] Professor Gans suggested that in such a case, ‘there is a good argument that the decision to participate renders any subsequent self-incrimination voluntary, rather than compelled’ and gave the example of a regulatory scheme requiring company officers to supply information about a company.^[112]

12.86   The Queensland Law Reform Commission has also suggested that ‘society is entitled to insist on the provision of certain information from those who voluntarily submit themselves to such a regulatory scheme’.^[113] ASIC cited this suggestion with approval, and argued that:

Persons operating in the corporate, markets, financial services or consumer credit sectors generally enjoy significant privileges as a consequence of being licensed, authorised or registered with ASIC and submitting to the relevant regulatory regime.^[114]

12.87   ASIC considered that because those persons occupy positions of trust, and have extensive opportunities to commit wrongdoing and cause immense harm, the need to regulate them justifies excluding the privilege.^[115] On the other hand, the Institute of Public Affairs raised concerns about the number of statutes that remove the privilege in relation to companies and their directors and agents, and proposed that ‘provisions which remove legal rights of company directors’ should be repealed.^[116]

12.88   The Guide to Framing Commonwealth Offences provides that ‘it may be appropriate to override the privilege when its use could seriously undermine the effectiveness of a regulatory scheme and prevent the collection of evidence’.^[117]

Immunities

12.89   As outlined at the start of this chapter, laws that exclude the privilege will generally be accompanied by use or derivative use immunity.^[118] The Guide to Framing Commonwealth Offences indicates that where a law excludes the privilege, it is ‘usual to include a use immunity or a derivative use immunity provision’. The Guide explains that the rationale for this protection is that ‘removing the privilege against self-incrimination represents a significant loss of personal liberty for an individual who is forced to give evidence that would tend to incriminate him or herself’.^[119]

12.90   Legislators must make a judgment as to whether use immunity sufficiently balances the loss of the privilege, or whether derivative use immunity is necessary. There are different views on this issue.

12.91   The Human Rights Committee noted that an abrogation of the privilege is more likely to be considered permissible if it is accompanied by both a use and derivative use immunity.^[120]

12.92   The Supreme Court of Victoria was asked to consider whether a statute that provided use immunity only was consistent with the Charter of Human Rights and Responsibilities, which protects the right to a fair hearing and the privilege against self-incrimination. Warren CJ held that the removal of the derivative use immunity in the statute in question went too far:

In the context of organised crime, such a limitation means that investigators are not required to give careful consideration to which persons will be charged and interrogated … thereby raising the possibility of innocent or deliberate breaches of the right against self-incrimination … In my view, the purpose of the limitation may still be achieved whilst retaining a form of derivative use immunity.^[121]

12.93   The Law Council considered that a law that excludes the privilege and provides use, but not derivative use, immunity may, for that reason, be unjustifiable.^[122]

12.94   On the other hand, derivative use immunities have been criticised on the basis that they have the potential to quarantine large amounts of material and render a witness immune from prosecution altogether. A thorough review conducted by the Queensland Law Reform Commission in 2004 concluded that the default position should be use immunity, rather than derivative use, because

the potential effect of a derivative use immunity is wider than the scope of the protection that would have been available if the privilege had not been abrogated. The Commission therefore considers that a derivative use immunity, because of its capacity to effectively quarantine from use additional material that proves the guilt of an individual who has provided self-incriminating information, should not be granted unless there are exceptional circumstances to justify the extent of its impact.^[123]

12.95   It has even been suggested that a witness might deliberately disclose information in order to claim immunity against disclosure of information that may have been obtained by other means during the investigation.^[124]

12.96   The question has been particularly prominent in relation to the regulation of corporations, and has been the subject of several reviews over the last 20 years. 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.^[125] One outcome was that ‘investigations which could be discharged within a period of months are taking periods of years’.^[126] 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 pursuant to an immunity.^[127] Other stakeholders challenged these claims.^[128]

12.97   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.^[129]

12.98   In submissions to this ALRC Inquiry, Professor Gans argued that the concerns about derivative use immunity have been overstated,^[130] while ASIC restated its concerns about such an immunity impeding the regulation of corporations and the prosecution of criminal activities.^[131] The disagreement may, in part, be due to different understandings of the scope of derivative use immunity. The usual form of words for Australian statutes that provide derivative use immunity is that evidence obtained ‘as a direct or indirect consequence’ of the person having given evidence cannot be used against the person.^[132]

12.99   The Canadian Supreme Court considered a range of possible approaches to derivative use immunity and concluded that Charter protection is only given to derivative evidence which ‘could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness’.^[133] This approach was adopted by the Victorian Supreme Court in the Charter case mentioned above.^[134] However ASIO has expressed concern that derivative use immunity could render inadmissible material that ‘would or could have been discovered without the particular information disclosed by the person’.^[135]

Other statutory safeguards

12.100         Statutes that abrogate the privilege may be more justifiable if they include safeguards such as a requirement for reasonable suspicion of wrongdoing before a person can be subject to compulsory questioning, as is the case in s 39A of the Proceeds of Crime Act. Examples of other statutory safeguards in relation to the powers of ASIC and ASIO are noted above.^[136]

12.101         Abrogation of the privilege may be more justifiable where the examination is to be conducted with judicial supervision. In this case, an officer of the court can ‘control the course of questioning and to make suppression or non-publication orders limiting the timing and scope of any use or dissemination by the Commission of answers given or documents produced’.^[137]