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.[170]

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.