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]