12.102         The privilege against self-incrimination is a common law right that protects a person from being compelled to answer a question or produce a document. It is said to protect the privacy, dignity and personal freedom of the individual, to preserve the presumption of innocence, and to maintain the proper balance between the citizen and the state. It is also thought to protect individuals from improper pressure to confess, and to reduce the incidence of unreliable testimony.

12.103         The privilege places barriers in the way of investigations and prosecutions. Parliament has, at times, considered that the public interest in facilitating fact-finding, whether for regulation, investigation or prosecution, outweighs the important interests protected by the privilege. The privilege has been abrogated in a wide range of legislation, including laws addressing workplace relations, work health and safety, corporate and commercial regulation, taxation, national security and migration.

12.104         In nearly all cases identified by this Inquiry to date, the abrogation of the privilege has been accompanied by a use or derivative use immunity, as recommended by the Guide to Framing Commonwealth Offences. Use immunities prohibit the use of the information revealed in subsequent proceedings against the person. Derivative use immunities render inadmissible information obtained as a result of the person having revealed information.

12.105         There have been several reviews of the privilege against self-incrimination and the availability of use immunities to protect witnesses who are compelled to produce evidence or attend examinations. These reviews largely concluded that use and derivative use immunities are an appropriate safeguard of individual rights and may, therefore, appropriately justify laws that exclude the privilege against self-incrimination.

12.106         Concerns have been raised regarding statutes that provide use immunity only, and not derivative use immunity. The ALRC is interested in comment as to whether further review of the use and derivative use immunities is necessary.