Approaches to immunities

11.112       The privilege against self-incrimination is abrogated in a wide range of Commonwealth laws. Some of these laws provide use immunity and some derivative use immunity, and there is no consistent approach.[155] The laws administered by four of the Commonwealth’s most active and powerful agencies—ACC, ACCC, ASIC and ASIO—contain use immunity only, while tax laws contain no immunity. In the Interim Report, the ALRC proposed that there should be further review of use and derivative use immunities.    

11.113       Two regulators responded to this proposal, and their responses have been discussed above. ASIC considered that use immunity was appropriate in the context of corporations law, and both ASIC and the ATO emphasised that the inherent power of the court to ensure a fair trial provides important safeguards.[156]

11.114       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.[157] It suggested that the ‘exercise of coercive information gathering powers should be regarded as exceptional … because of the intrusive impact on individual rights’.[158]

11.115       The National Association of Community Legal Centres (NACLC) considers the privilege against self-incrimination to be a key protection ‘for vulnerable individuals facing the weight of state resources and prosecution’ and was concerned about ‘a general trend towards limiting the privilege’. NACLC supported a review of immunities but preferred protections to ensure that privilege could not be overridden.[159]

11.116       The Councils for Civil Liberties (CCL) were also concerned about the ‘significant loss of personal liberty for persons who are forced to answer questions’. The CCL supported both a review of immunities and a broader review of justification for abrogation.[160]

11.117       Professor Gans pointed out that at least 40 Commonwealth laws encroach upon this important common law right, and submitted that previous reviews of use and derivative use immunities have not all been of high quality, and have been limited in scope. He argued that further consideration of the issue is necessary.[161]

11.118       Professor Gans also suggested that the conversation has, to date, been based on a false dichotomy between US style derivative use immunity, and bare use immunity.

11.119       The US approach is usefully described in the submission from ASIC. It imposes a positive obligation on the prosecution to prove that the evidence it proposes to adduce is wholly independent of the compelled testimony. Such an approach is said to lead to the exclusion of evidence even where that evidence would or could have been discovered without the compelled testimony, and to have led to the failure of many prosecutions.[162] ASIC reported that the likely result of the introduction of such immunity in Australian corporations law is that ASIC would exercise its compulsory information-gathering powers less frequently, undermining the public purpose for which those powers were created.[163]

11.120       In contrast, bare use immunity only renders inadmissible the statements made and documents provided by the compelled witness. Evidence discovered as a result of those statements is not rendered inadmissible, even where it could not have been discovered, or its significance could not been understood, without the compelled disclosure.

11.121       Professor Gans suggested that consideration should be given to whether Commonwealth statutes abrogating the privilege should contain a flexible, or partial, derivative use immunity. Such an immunity would render inadmissible only evidence which would not have been discovered without the compelled disclosure (rather than all evidence that was in fact discovered in reliance on leads from the disclosure).[164]

11.122       Warren CJ of the Supreme Court of Victoria considered that the partial derivative use immunity adopted in Canada was the appropriate protection for the privilege. The Canadian Supreme Court held 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’.[165] However, Warren CJ found that, while Australian courts have inherent powers to exclude evidence that would render a trial unfair, a discretionary or case-by-case approach would not provide sufficient protection.[166]

11.123       ASIC also considered that the Canadian approach offered a useful model for the appropriate immunity but emphasised that the Canadian courts rejected US style statutory derivative use immunity in favour of ‘use immunity plus a flexible judicial discretion to exclude a narrow category of derivative evidence’.[167]

11.124       The ALRC has considered this question in three reports—Principled Regulation (2003), Privilege in Perspective (2008), and Making Inquiries (2009). In each of these it concluded that use immunity was appropriate.[168] The Queensland Law Reform Commission in 2004 also concluded that the default position should be use immunity, rather than derivative use.[169] However, those inquiries did not address some issues that have only recently arisen, including the compelled questioning of persons subject to charge regarding the subject matter of the charge, and the publication of transcripts of compelled questioning to prosecutors. These inquiries also did not consider whether statutes should include partial derivative use immunity.