Justifications for excluding the privilege against self-incrimination

11.43  The right to claim the privilege against self-incrimination is not absolute and may be removed or diminished by statute.^[64] 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.^[65]

11.44  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’.^[66]

11.45  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.

11.46  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.^[67]

11.47  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.^[68]

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

Public benefit and avoiding serious risks

11.49  The Law Council of Australia 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’.^[69] The Law 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’.^[70]

11.50  The Australian Council of Trade Unions (ACTU)agreed that only the intention to avoid serious risks would justify abrogating the privilege.^[71] The ACTU 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. However, the ACTU was critical of the abrogation of the privilege in workplace relations laws, arguing that no such pressing public interest was at stake.^[72]

11.51  In 2000, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) 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’.^[73]

11.52  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.^[74]

Proportionality

11.53  Justifications that refer to public benefit and the investigation of serious offences implicitly incorporate a proportionality approach, which asks whether the law limiting the right pursues an objective of sufficient importance to warrant limiting the right. 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.^[75]

11.54  Professor Gans et al also endorsed a proportionality approach. He explaiend the balancing exercise which must be conducted in any coercive information-gathering exercise and said:

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.^[76]

11.55  It cannot be assumed that limiting the privilege against self-incrimination will necessarily result in better investigation, detection, prevention and prosecution of crime.^[77] Evidence regarding the effect of changing legal processes is not easy to come by, but there is some evidence that curtailing the right to silence does not produce increased conviction rates.^[78] Justifications for encroachments on fundamental common law rights should include some assessment of whether the encroachment will actually achieve the identified purpose.

11.56  The Parliamentary Joint Committee on Human Rights (Human Rights Committee) has noted that, while art 14.3(g) of the ICCPR protects the right not to incriminate oneself, 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’.^[79]

11.57  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’.^[80] 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 European Convention.^[81]

Voluntary participation in regulatory scheme

11.58  Infringements on the privilege may be justified when the person required to provide information is a voluntary participant in a regulatory scheme.^[82] 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.^[83]

11.59  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’.^[84] 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.^[85]

11.60  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’.^[86]

Immunities

11.61  Nearly all laws that abrogate the privilege provide a safeguard in the form of use immunity regarding the answers given—that is, they provide that the answers given are not admissible against the person in a subsequent proceeding.^[87] Some laws also provide derivative use immunity—that is, they provide that evidence obtained as a direct or indirect result of a person having made a statement is not admissible against the person. 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’.^[88]

11.62  The Human Rights Committee and the Scrutiny of Bills Committee have both indicated that noted that an abrogation of the privilege is more likely to be considered justified if it is accompanied by both use and derivative use immunity.^[89]

Inherent powers

11.63  The courts have inherent power to exclude evidence where admitting such evidence would render the trial unfair.^[90] This may be used to justify a statutory encroachment on the privilege against self-incrimination, because it reduces or eliminates the risk that the encroachment will result in an unfair trial.^[91]

11.64  If a statutory abrogation of the privilege results in the prosecution obtaining an unfair forensic advantage, there is a question over the admissibility of that evidence:

the trial judge has a discretion in relation to the admissibility of such [derivative] evidence, and the court has a power to control any use of derivative evidence which amounts to an abuse of process.^[92]

11.65  A court may prevent the examination of a person if such an examination would prejudice the person in their criminal trial.^[93] It may quash a conviction if compelled questioning results in a trial that is fundamentally flawed. The High Court exercised this power in Lee v The Queen when the transcripts of the defendants for questioning before the NSW Crime Commission were published to the prosecution:

It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.^[94]

11.66  The common law regarding contempt of court also restrains the use of coercive information-gathering powers. In Deputy Commissioner of Taxation v De Vonk, the Full Federal Court held that the questioning of a person charged with a criminal offence about matters relevant to that charge will be contempt of court if there is a real risk of interference with the course of justice. The Court relied on Gibbs CJ in Hammond v Commonwealth:   

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk th at the administration of justice will be interfered with.  It is clear that the questions will be put and pressed.  It is true that the examination will take place in private, and that the answers may not be used at the criminal trial.  Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.^[95]

11.67  ASIC emphasised the existence of

wide and flexible judicial discretion to exclude the admission of derivative evidence, and further restrict the use of both information compelled from a person and derivative evidence, in order to prevent unfair prejudice to an accused or fundamental departures from ordinary criminal trial processes.^[96]

11.68  However Warren CJ of the Victorian Supreme Court, considering the compatibility of certain coercive questioning powers with the Charter of Human Rights and Responsibilities Act 2006 (Vic) has cast some doubt on whether the discretions available to the trial judge sufficiently protect the privilege against self-incrimination, particularly with regard to derivative evidence.^[97]

Other statutory safeguards

11.69  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 (2002) (Cth). Examples of other statutory safeguards in relation to the powers of the Australian Crime Commission, ASIC and Australian Security Intelligence Organisation are noted below.^[98]

11.70  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’.^[99]