12.01.2016

Protections from statutory encroachment

Australian Constitution

11.34 The privilege is not expressly protected by the Australian Constitution, nor has protection been implied by the courts. The High Court has on numerous occasions ‘discarded any link between the privilege and the requirements of Ch III of the Australian Constitution’.^[45]For instance, in Sorby v Commonwealth, a majority of the High Court held that the privilege against self-incrimination is not an integral element in the exercise of judicial power reposed in the courts by Ch III of the Constitution.^[46]

Principle of legality

11.35 The principle of legality provides some protection to the privilege against self-incrimination.^[47] When interpreting a statute, courts will presume that Parliament did not intend to interfere with the privilege, unless a legislative intent to do so ‘clearly emerges, whether by express words or necessary implication’.^[48]

11.36 In Pyneboard Pty Ltd v Trade Practices Commission, the High Court held that the right to claim the privilege against self-incrimination could be revoked where a statutory body, like the Trade Practices Commission, was authorised to compel individuals to produce information which may incriminate that individual. In that case, s 155(1) of the Trade Practices Act 1974 (Cth)required a person to provide information or documents to the Commission. The High Court held that the privilege

will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. That is so when the object of imposing the obligation is to ensure the full investigation on the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation.^[49]

International law

11.37 The right to claim the privilege against self-incrimination is contained in art 14.3(g) of the International Covenant on Civil and Political Rights (ICCPR)^[50] which provides that, in the determination of any criminal charge, everyone shall be entitled not to be compelled to testify against himself or to confess guilt.

11.38 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.^[51] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.^[52] The High Court has confirmed the influence of art 14 of the ICCPR on the common law.^[53]

Bills of rights

11.39 In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. Article 6 of the European Convention on Human Rights protects the right to a fair trial and the presumption of innocence.^[54] While the privilege against self-incrimination is not specifically mentioned, the European Court has held that

the right to silence and the right not to incriminate oneself, are generally recognised international standards, which lie at the heart of the notion of a fair procedure under article 6. ^[55]

11.40 In the UK case of R v Lambert, Lord Hope explained that art 6.2 is

not absolute and unqualified, the test to be applied is whether the modification or limitation of that right pursues a legitimate aim and whether it satisfies the principle of proportionality.^[56]

11.41 The privilege is protected in bills of rights and human rights statutes in the United States,^[57] the United Kingdom,^[58] Canada,^[59] South Africa^[60] and New Zealand.^[61] For example, the Canadian Charter of Rights and Freedoms provides:

Any person charged with an offence has the right …
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence.^[62]

11.42 The right or privilege against self-incrimination is also protected in the Victorian Charter of Human Rights and Responsibilities and the ACT’s Human Rights Act.^[63]

[45]
See discussion in Anthony Gray, ‘Constitutionally Protecting the Presumption of Innocence’ (2012) 31 University of Tasmania Law Review 132, 162.
[46]
Sorby v Commonwealth (1983) 152 CLR 281, 308 (Mason, Wilson and Dawson JJ). See also X7 v Australian Crime Commission (2013) 248 CLR 92, [63]–[65] (French CJ and Crennan J).
[47]
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 2.
[48]
Sorby v Commonwealth (1983) 152 CLR 281, [14] (Gibbs CJ); Gibbs CJ relied on DC Pearce, Statutory Interpretation in Australia (Butterworths, 2nd ed, 1981).
[49]
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 618 (Mason ACJ, Wilson and Dawson JJ).
[50]
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[51]
Minister for Immigration v B (2004) 219 CLR 365, 425 [171] (Kirby J).
[52]
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed more generally in Ch 2.
[53]
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 499 (Mason CJ and Toohey J).
[54]
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 6. Ibid.Ibid.Ibid.The European Court of Human Rights has upheld the centrality of the presumption of innocence as part of the inquisitorial systems of European nations’ criminal justice systems: Funke v France [1993] 16 EHRR 297 (1993).
[55]
Heaney and McGuinness v Ireland (2001) 33 Eur Court HR 12, [40].
[56]
R v Lambert [2002] 2 AC 545, [88].
[57]
United States Constitution amend V.
[58]
Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 6.
[59]
Canada Act 1982 (UK) c 11, Sch B Pt 1 (Canadian Charter of Rights and Freedoms) s 13.
[60]
Constitution of the Republic of South Africa Act 1996 (South Africa) s 35.
[61]
New Zealand Bill of Rights Act 1990 (NZ) s 25(d).
[62]
Canada Act 1982 (UK) c 11, Sch B Pt 1 (Canadian Charter of Rights and Freedoms) s 11(c).
[63]
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(k); Human Rights Act 2004 (ACT) s 22(2)(i).