Laws that exclude the right to claim the privilege

12.35   Many Commonwealth laws require a person to answer questions or produce documents, but provide that those answers or documents are not admissible against the person in criminal proceedings. It is possible to characterise these laws as preserving the privilege against self-incrimination, because of inadmissibility of the material.^[63] However, 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.^[64] 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.

12.36   Nearly all of these provisions provide statutory protections for witnesses, primarily by way of use or derivative use immunities that render incriminating evidence inadmissible against the relevant person in future criminal proceedings. Use immunity means that the statement given or record produced cannot be used in subsequent criminal or civil penalty proceedings against the person, except in proceedings in relation to the falsity of the evidence itself.^[65] Derivative use immunity means that evidence obtained as a result of the person having made a statement, or provided a document, cannot be used in subsequent proceedings.^[66]

12.37   Some stakeholders expressed concern at the exclusion of the privilege in Commonwealth laws.^[67]

12.38   This chapter identifies provisions in Commonwealth laws that exclude the right to claim the privilege in the following areas:

• workplace relations laws;

• work health and safety laws;

• corporate and commercial regulation;

• national security laws;

• the powers of federal investigative and regulatory bodies; and

• migration law.

Workplace relations laws

12.39   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.

12.40   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 them.

• 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.

• 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.

Work health and safety laws

12.41   Section 172 of the Work Health and Safety Act 2011 (Cth) provides that a person is not excused from answering a question or providing information or a document on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty. Use and derivative use immunity is provided. The provision concerns investigations into unsafe or unlawful work practices.

12.42   The Australian Council of Trade Unions (ACTU) argued that there is a ‘clear public interest’ in ensuring workers are healthy and safe at work and employers comply with workplace laws, and therefore ‘inspectors need to have strong unambiguous powers to obtain information’.^[68]

12.43   The Explanatory Memorandum to the Work Health and Safety Bill 2011 (Cth) provides a justification for the abrogation of the privilege:

These arrangements are proposed because the right to silence is clearly capable of limiting the information that may be available to inspectors or the regulator, which may compromise inspectors’ or the regulator’s ability to ensure ongoing work health and safety protections. Securing ongoing compliance with the Bill and ensuring work health and safety are sufficiently important objectives as to justify some limitation of the right to silence.

12.44   The ACTU argued that the provision is proportionate and necessary as inspectors need ‘strong unambiguous powers to obtain information’ in order to reduce the risk of workplace injury:

The abrogation of the privilege against self-incrimination is justifiable and should be retained. There is a clear public interest in ensuring healthy and safe working conditions. Workers are entitled to healthy and safe conditions of work.^[69]

Corporate and commercial regulation

12.45   As the Commonwealth regulator in the area of corporate and commercial regulation, ASIC has compulsory investigatory powers that exclude the privilege against self-incrimination.

12.46   ASIC is empowered to compel persons to:

• produce specified books relating to regulated entities or activities (production powers);^[70] and

• attend examinations and answer relevant questions on oath (examination powers).^[71]

12.47   The fact that producing documents or answering questions may incriminate the person is not a reasonable excuse for refusing to do so. Use immunity is available regarding statements and the signing of a record.^[72]

12.48   Procedural safeguards are available in the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act), including:

• the provision of a notice setting out the general nature of the matter being investigated, and information about the examinee’s rights and obligations;

• the right to have a lawyer present;

• an examinee is only required to answer questions that are relevant to a matter that ASIC is investigating;

• an examination must take place in private;

• an examinee is entitled to a copy of the record of the examination; and

• judicial review is available regarding examination decisions made by ASIC.^[73]

National security laws

12.49   There are a number of Commonwealth laws that exclude the right to claim the privilege against self-incrimination in order to detect and prevent serious crime, particularly serious crimes such as terrorism. These laws include the following:

• Crimes Act 1914 (Cth) s 3ZZGE(1)(c) provides that a person is not excused from giving information, answering a question, or giving access to a document to the Commonwealth Ombudsman, on the grounds that it may incriminate them. Use and derivative use immunities are available: s 3ZZGE(2).

• Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) s 34L(8)provides that a person cannot fail to provide information to ASIO officers even if that information may incriminate them.^[74] Use immunity is available in s 34L(9).

• Australian Federal Police Act 1979 (Cth) ss 40A, 40VG, 40VE and 40L exclude the right to claim the privilege against self-incrimination for Australian Federal Police (AFP) employees who are subject to investigations or questioning about professional standards and other internal matters. Use immunity is available.

12.50   The Proceeds of Crime Act 2002 (Cth) is intended to enable the seizure of property used in, or derived from, terrorism offences, as well as to enable the confiscation of profits from drug trafficking, people smuggling, money laundering and large-scale fraud.^[75] Several provisions exclude the privilege against self-incrimination. All contain use, but not derivative use, immunities.

• Section 39A excludes the use of the privilege as a reason to refuse to provide a sworn statement to the AFP 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.

• Section 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.

• Section 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.

12.51   Some of these provisions—discussed below—have been subject to criticism by parliamentary and other reviews, for excluding the privilege without appropriate justification.

Compulsory disclosure of information to the Commonwealth Ombudsman

12.52   In 2014, changes were made to the criminal laws regarding terrorism offences which had an impact on a range of rights and freedoms.^[76] Safeguards were included in the legislation, including oversight by the Commonwealth Ombudsman. Officers of eligible agencies are required to provide information to the Ombudsman and are denied the privilege against self-incrimination, subject to use and derivative use immunities.^[77] The Senate Standing Committee on the Scrutiny of Bills noted that this provision amounted to a ‘possible undue trespass on individual rights and liberties’,^[78] and left the question of whether the provision was ‘appropriate’ to the Senate.^[79]

12.53   The Explanatory Memorandum to the legislation that introduced the provision explained that the abrogation of the privilege against self-incrimination ‘recognises the public interest in the effective monitoring of the use of delayed notification search warrants to ensure that civil liberties are not unduly breached’.^[80]

Compulsory disclosure of information to ASIO

12.54   Several stakeholders raised concerns about s 34L(8) of the ASIO Act, which provides that a person cannot fail to provide information to ASIO officers, even if that information may incriminate them.^[81] Direct use immunity is available.^[82] According to the Explanatory Memorandum,

The 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.^[83]

12.55   Lisa Burton, Nicola McGarrity and 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.^[84]

12.56   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.^[85]

12.57   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.^[86]

12.58   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 that,

On 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.^[87]

12.59   The Australian Human Rights Commission also raised concerns about this provision, particularly the lack of protection against derivative use.^[88]

Other coercive information-gathering agencies

12.60   A range of Commonwealth laws empower federal agencies to conduct coercive information-gathering investigations. For the purpose of performing their investigatory functions, these statutory agencies, such as the Australian Crime Commission and the Australian Taxation Office (ATO) have the ability to obtain information and documents in ways that deny the privilege against self-incrimination.

12.61   The justifications for these encroachments will necessarily vary depending on the particular area of law. Generally, they have been justified on public interest grounds to promote the investigation of and to prevent unlawful practices such as tax evasion, corruption and environmental pollution and degradation. Overwhelmingly, these provisions provide use or derivative use immunities to protect individuals from future criminal proceedings.

12.62   The Terms of Reference for this Inquiry ask the ALRC to include consideration of Commonwealth laws that exclude the right to claim the privilege in commercial and corporate regulation, environmental regulation and workplace relations. The ALRC has identified provisions in these areas of law, as well as in other areas.^[89] Unless otherwise stated, these provisions confer use immunity only. They include the following:

• Australian Crime Commission Act 2002 (Cth) s 30;

• Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) s 189—derivative use immunity;

• Competition and Consumer Act 2010 (Cth) ss 133E, 135C, 151BUF, 154R, 155(7), 155B, 159;

• Corporations Act 2001 (Cth) s 597(12);

• Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 486J—derivative use immunity;

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

• Income Tax Assessment Act 1936 (Cth) s 264—no use or derivative use immunity;

• Law Enforcement Integrity Commissioner Act 2006 (Cth) ss 80, 96;

• Mutual Assistance in Business Regulation Act 1992 (Cth) s 14;

• National Consumer Credit Protection Act 2009 (Cth) s 295;

• Ombudsman Act 1976 (Cth)s 9;

• Parliamentary Service Act 1999 (Cth) ss 65AC, 65AD;

• Private Health Insurance Act 2007 (Cth) s 214.15;

• Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth)ss 44(4), 46S(4) —derivative use immunity;

• Public Service Act 1999 (Cth) ss 72C, 72D;

• Retirement Savings Accounts Act 1997 (Cth) s 120;

• Superannuation Industry (Supervision) Act 1993 (Cth) ss 130B, 287, 290, 336;

• Tobacco Plain Packaging (Cth) s 83; and

• Veterans’ Entitlements Act 1986 (Cth) s 129.

Taxation law

12.63   The Tax Institute raised concerns about ss 263 and 264 of the Income Tax Assessment Act 1936 (Cth), which provide the Australian Tax Commissioner with powers to obtain information relating to a person’s income tax liability. When gathering information to establish whether an individual has returned the correct amount of taxable income, the ATO can issue a notice under s 264, and in doing so, abrogate the privilege against self-incrimination.

12.64   These access and information-gathering powers allow ATO officers to enter taxpayers’ premises in order to access and make copies of books, documents and other papers, as well as requiring taxpayers to produce documents, provide information in writing and attend interviews.

12.65   The Tax Institute conceded that, on occasion, the Tax Commissioner ‘must sometimes act quickly’ as ‘powers of compulsion, for example to overcome banker-customer confidentiality, are necessary’. However, it went on to argue that these powers ‘are not balanced by statutory limitations on derivative use of the information in criminal proceedings’.^[90]

12.66   This provision was considered in Deputy Commissioner of Taxation v De Vonk, where the 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.^[91]

Migration law

12.67   There are numerous provisions in migration law that exclude the privilege against self-incrimination where officials from the Migration Agents Registration Authority (MARA) or Immigration Department officials are investigating criminal offences and civil penalty provisions concerning visa fraud. Generally speaking, the provisions empower MARA to compel information from registered or former migration agents that may be relevant to their investigations.

12.68   These provisions are in the Migration Act 1958 (Cth) (Migration Act) and include derivate use immunities. They include the following.

• Section 24: a person is not excused from giving information or providing documents when that evidence concerns unlawful work practices or the violation of visa work conditions by non-citizens.

• Section 140XG: a person is not excused from giving information or providing documents to an inspector when that inspector is on their work premises and acting under s 140XC(d).

• Section 268BK: a person is not excused from giving information or providing documents concerning the investigation of student visas.

• Section 305C(6): a person is not excused from giving information or providing documents concerning where an individual has information relevant to a decision by MARA to refuse a registration application from a registered migration agent or make a decision to cancel or suspend such an agent’s registration or to caution such an agent.

• Section 306J: an individual is not excused from producing a document under ss 306D, 306E or 306F on the ground that the production of the document may tend to incriminate the individual or expose the individual to a penalty.^[92]

• Section 308(3): empowers MARA to compel information from registered migration agents, even if the information would tend to incriminate the agent.

• Section 311EA(6): empowers MARA to compel information from former migration agents, even if the information would tend to incriminate the agent.

• Section 487C(1): provides that a person is not excused from giving evidence or producing a document relating to a work-related offence under s 487B, even if the disclosure incriminates that person.

Other laws

12.69   There are many other Commonwealth laws that exclude the right to claim the privilege against self-incrimination,^[93] including the following provisions. Unless otherwise stated, these provisions confer derivative use immunities.

12.70   The laws include the following:

• Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 54—use immunity only;

• Australian Border Force Act 2015 (Cth) ss 26—use immunity only;

• Australian Sports Anti-Doping Authority Act 2006 (Cth) s13D;

• Aviation Transport Security Act 2004 (Cth) s 112;

• Banking Act 1959 (Cth) s 52F—use immunity only;

• Bankruptcy Act 1966 (Cth) s 81(11AA). There is no express provision for immunity, but the abrogation of the privilege is ‘subject to any contrary direction by the Court, the Registrar or the magistrate’;

• Defence Trade Controls Act 2012 (Cth) ss 44, 57;

• Dental Benefits Act 2008 (Cth) s 32E;

• Quarantine Act 1908 (Cth)s 79A; and

• Therapeutic Goods Act 1989 (Cth) ss 31F, 32JD, 32JK, 41JC, 41JJ.