11.125 The ALRC considers further review of the encroachments on the privilege against self-incrimination in Commonwealth laws is warranted. The following matters have led to this conclusion:
the large number of Commonwealth acts that encroach upon the privilege, and the apparent inconsistency regarding the availability of use and derivative use immunity;
the serious concerns raised by the High Court in X7 v ACC and Lee v The Queen, and byWarren CJ in the Victorian Supreme Court, regarding the impact on the fair trial of compelled questioning of a person who is subject to charge; and
concerns heard from stakeholders and commentators.
11.126 Such a review could consider:
whether the many encroachments on the privilege against self-incrimination on Commonwealth laws are justified, either by implied waiver (by persons participating in a regulatory scheme), or by the serious public risks that are sought to be averted by the encroachment;
if an encroachment is justified, then whether use immunity, partial derivative use immunity, or full US-style derivative use immunity is appropriate;
if partial derivative use immunity is appropriate, then whether the inherent powers of the court already provide, or could provide, such an immunity, or whether statutory protection is necessary;
whether there should be any statutory immunity in relation to compelled examinations in taxation law;
whether compelled examinations of persons subject to charge, regarding the subject matter of the charge, should be permitted, and if so, under what conditions; and
whether it is appropriate for a prosecutor to be given transcripts of compelled questioning.