11.9 The privilege against self-incrimination is ‘a basic and substantive common law right, and not just a rule of evidence’. It reflects ‘the long-standing antipathy of the common law to compulsory interrogations about criminal conduct’.
11.10 In 1983 the High Court described the privilege as follows:
A person may refuse to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal’.
11.11 Similarly, in 2004 the Full Federal Court said:
The privilege is that a person (not company) is not bound to answer any question or produce any document if the answer or the document would expose, or would have a tendency to expose, the person to conviction for a crime.
11.12 The common law privilege is available not only to persons questioned in criminal proceedings, but to persons suspected of a crime, to persons questioned in civil proceedings and in non-curial contexts.
11.13 The privilege is one aspect of the right to silence. The right to silence protects the right not to be made to testify against oneself (whether or not that testimony is incriminating). The privilege against self-incrimination is narrower, in that it protects the right not to be made to incriminate oneself. A statute might require a person to answer questions, thus breaching the right to silence, but allow the person to refuse to give incriminating answers, thus preserving the privilege against self-incrimination.
11.14 There are two closely related privileges that arose in equity: the privileges against exposure to a civil penalty and exposure to a forfeiture. This Inquiry focuses on the common law privilege against self-incrimination.
Testimony and documents
11.15 The privilege is testimonial in nature, protecting a witness from being convicted ‘out of his own mouth’.
11.16 The privilege does not prevent persons from being compelled to incriminate themselves through the provision of evidence that is non-testimonial in nature. Non-testimonial evidence may include, for instance, fingerprints or DNA samples.In Sorby v Commonwealth, Gibbs CJ explained that the privilege
prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence, against the will of a witness, as to the condition of his body. For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he was identified.
11.17 While recent Australian decisions have indicated that the privilege extends to documents, questions have been raised as to whether that continues to be the case. The Australian Securities and Investments Commission (ASIC) noted that in the United States and the United Kingdom, the privilege against self-incrimination no longer extends to the production of documents, but only protects testimonial communications.
11.18 ASIC also noted that doubts have been expressed by Australian courts about the extension of the privilege to documents. In three judgments of the High Court, documents have been referred to as being ‘in the nature of real evidence which speak for themselves’, in contrast to testimonial evidence, with the inference that the privilege may be unnecessary with regard to documents. However, in those cases it was not necessary for the Court to definitively confirm the existence—or otherwise—of the common law privilege regarding documents.
11.19 If the privilege continues to extend to documents, it only excuses the person from producing them. If the documents are, for example, seized under a warrant, they are not protected by the privilege.
Corporations may not claim the privilege
11.20 The privilege against self-incrimination extends to natural persons, but not corporations. In Environment Protection Authority v Caltex, the High Court reviewed the historical and modern rationales for the privilege and held that these did not support the extension of the privilege to corporations. In particular, the Court noted that
a corporation is usually in a stronger position vis-a-vis the state than is an individual; the resources which companies possess and the advantages which they tend to enjoy, many stemming from incorporation, are much greater than those possessed and enjoyed by natural persons … Accordingly, in maintaining a ‘fair’ or ‘correct’ balance between state and corporation, the operation of the privilege should be confined to natural persons.
11.21 The privilege is also not available to other entities such as political parties, sporting clubs, advocacy groups, small businesses and unions.
The origins of the privilege
11.22 There is some debate among legal historians about the origins of the privilege. Some have suggested it is of ancient origin, arising from the common law maxim nemo tenetur prodere seipsum, meaning that people should not be compelled to betray themselves. Professor Richard Helmholz said that the ius commune or common law of the 12th and 13th centuries, a combination of the Roman and canon laws, included an early privilege against self-incrimination that influenced the modern iteration of the privilege at common law.
11.23 In his Commentaries on the Laws of England, William Blackstone explained that the maxim was enlivened where a defendant’s fault ‘was not to be wrung out of himself, but rather to be discovered by other means and other men’.
11.24 Others point to the development of the privilege in the 17th century as a response to the unpopularity of the Star Chamber in England whose practices included requiring suspects on trial for treason to answer questions without protection from self-incrimination.
11.25 On the other hand, Professor John Langbein suggested the privilege did not arise until much later. He pointed to the development of the privilege as part of the rise of the adversarial criminal justice system, where the prosecution is charged with proving the guilt of a defendant beyond a reasonable doubt and subject to protections surrounding the manner of criminal discovery.
11.26 In a vigorous dissent in Azzopardi v R,McHugh J endorsed Langbein’s approach, observing that:
these lawyers and historians have convincingly demonstrated that the self-incrimination principle originated from the European inquisitorial procedure and that it did not become firmly established as a principle of the criminal law until the mid-19th century or later.
The rationale for the privilege
11.27 A number of rationales have been offered for the privilege. Most recently, the High Court has emphasised the functional role of the privilege. In X7 v Australian Crime Commission, it was said to be essential to the accusatorial system:
The accusatorial process of criminal justice and the privilege against self‑incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong‑doing.
11.28 The High Court returned to this theme in Lee v The Queen, when considering the compulsory examination powers of the NSW Crime Commission:
Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.
11.29 The privilege has been said to be necessary to preserve the presumption of innocence, and to ensure that the burden of proof remains on the prosecution. In Cornwell v The Queen, Kirby J said:
Such self-incrimination has been treated in the jurisprudence as objectionable, not only because the methods used to extract it are commonly unacceptable but because the practice is ordinarily incompatible with the presumption of innocence. This presumption normally obliges proof of criminal wrong-doing from the evidence of others, not from the mouth of the person accused, given otherwise than by his or her own free will.
11.30 Another functional role of the privilege is to reduce the power imbalance between the prosecution and a defendant, or as Gleeson CJ put it, to hold ‘a proper balance between the powers of the State and the rights and interests of citizens’.
11.31 Rights based rationales are also important. The privilege is said to protect the right to dignity, privacy and freedom. In Pyneboard Pty Ltd v Trade Practices Commission, Murphy J explained that the privilege is
part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality.
11.32 Also in Pyneboard, the privilege was described as a ‘fundamental bulwark of liberty’.
11.33 In more utilitarian terms, the privilege may offer the following benefits.
It may encourage witnesses to cooperate with investigators and prosecutors, as they are able to do so without giving answers to questions that may incriminate them.
It may protect individuals from unlawful coercive methods used to obtain confessions, and in this sense protects personal liberty.
It may reduce the incidence of false confessions. The stressful environment of police interviews may be ‘conducive to false confessions on account of the authority of police, the isolation, uncertainty and anxiety of the suspect and the expectations of the interrogation officer’. Being compelled to give a statement in this environment could exacerbate the problem.
It may reduce the incidence of untruthful evidence in court proceedings, on the basis that a person who is compelled to give evidence is more likely to lie.
Reid v Howard (1995) 184 CLR 1, .
Lee v New South Wales Crime Commission (2013) 302 ALR 363,  (French CJ).
Sorby v Commonwealth (1983) 152 CLR 281, 288. The Court cited Lamb v Munster (1882) 10 QBD 110, 111.
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, ; Sorby v Commonwealth (1983) 152 CLR 281, .
Petty & Maiden v R (1991) 173 CLR 95.
Reid v Howard (1995) 184 CLR 1, .
Griffin v Pantzer (2004) 137 FCR 209, .
Queensland Law Reform Commission, The Abrogation of the Principle against Self-Incrimination Report No 59 (2004) 54; R v Director of Serious Fraud Office; Ex parte Smith  AC 1. See also Anthony Gray, ‘Constitutionally Heeding the Right to Silence in Australia’ (2013) 39 Monash University Law Review 156, 158.
Jeremy Gans et al, Criminal Process and Human Rights (Federation Press, 2011) 204.
See, eg, Broadcasting Services Act 1992 (Cth) s 202.
X7 v Australian Crime Commission (2013) 248 CLR 92, . See also Dyson Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2013) ; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, , . The privilege against exposure to a civil penalty is now recognised by the common law: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, .
Hamilton v Oades (1989) 166 CLR 486, 496.
See, eg, Australian Securities and Investments Commission, Submission 74.
Heydon, above n 15, .
Sorby v Commonwealth (1983) 152 CLR 281, 292.
Ibid 288; Griffin v Pantzer (2004) 137 FCR 209, 37.
Australian Securities and Investments Commission, Submission 74; ASIC relied upon the following authorities: Attorney General’s Reference (No 7 of 2000) (2001) 2 Cr App R 19; R v Kearns (2001) 1 WLR 2815; Fisher v United States (1976) 425 US 391.
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385, 392; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 326; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 502. In the context of discovery of documents by a corporation subject to contempt proceedings, see Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd  HCA 21 (17 June 2015) , .
Heydon, above n 15, .
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. While companies are not entitled to claim the privilege against self-incrimination, company directors can claim the privilege where a disclosure would tend to make them personally liable: Upperedge v Bailey (1994) 13 ACSR 541. See also Uniform Evidence Acts s 187 which abolished the privilege regarding bodies corporate.
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 500.
Jeremy Gans, Prove Your Own Contempt: CFMEU v Boral (20 July 2015) Opinions on High <http://blogs.unimelb.edu.au/opinionsonhigh/2015/07/20/gans-boral/>.
McHugh J details some of the arguments in Azzopardi v R (2001) 205 CLR 50, –. See also Cosmas Moisidis, Criminal Discovery. From Truth to Proof and Back Again (Institute of Criminology Press, 2008); X7 v Australian Crime Commission (2013) 248 CLR 92, 135  (Hayne and Bell JJ).
Richard Helmholz, ‘Introduction’ in Richard Helmholz (ed), The Privilege Against Self-incrimination: Its Origins and Development (University of Chicago Press, 1997).
William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) vol IV, bk IV, ch 22, 293.
Leonard Levy, Origins of the Fifth Amendment (Macmillan, 1986); John Wigmore, Evidence in Trials at Common Law (Little Brown, 1961) vol 1. See also Sorby v Commonwealth (1983) 152 CLR 281, 317; Griffin v Pantzer (2004) 137 FCR 209, . For further background, see, David Dolinko, ‘Is There a Rationale for the Privilege against Self-Incrimination?’ (1986) 3 UCLA Law Review 1063, 1079.
John Langbein, ‘The Historical Origins of the Privilege against Self-Incrimination at Common Law’ (1994) 92 Michigan Law Review 1047, 1047.
Azzopardi v R (2001) 205 CLR 50; see also Moisidis, above n 27; X7 v Australian Crime Commission (2013) 248 CLR 92, 135 .
X7 v Australian Crime Commission (2013) 248 CLR 92, .
Lee v The Queen  HCA 20 (21 May 2014) –. See also Re an application under the Major Crime (Investigative Powers) Act 2004  VSC 381 .
Cornwell v R (2007) 231 CLR 260, ; see also Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 527; X7 v Australian Crime Commission (2013) 248 CLR 92, .
Moisidis, above n 27, 136.
Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118, 127. See also Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) .
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 346.
Ibid 340 (Mason CJ, Wilson and Dawson JJ).
Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) , ; Heydon, above n 15, .
Moisidis, above n 27, 133.
Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) .