10.24 The High Court has on several occasions held that the privilege is not immutable and can be abrogated in order to balance competing rights and the public interest:
The legislatures have taken this course when confronted with the need, based on perceptions of public interest, to elevate that interest over the interests of the individual in order to enable the true facts to be ascertained.
10.25 This public interest may be enlivened in circumstances where the information gleaned from a witness or defendant as a result of suspending the privilege reveals an issue of major public importance that has a significant impact on the community in general or on a section of the community. For example, an inquiry or investigation into allegations of major criminal activity, organised crime or official corruption or other serious misconduct by a public official in the performance of his or her duties might justify the abrogation of the privilege. It may also be justified to exclude the privilege where there is an immediate need for information, for example, to avoid risks such as personal injury, and where authorities have reasonable cause for believing that an individual can provide that information.
10.26 Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.
10.27 Some laws exclude the privilege against self-incrimination. The ALRC invites submissions identifying those Commonwealth laws that are not justified, and explaining why they are not justified.
Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 503 (Mason CJ and Toohey J). See also, Sorby v The Commonwealth (1983) 152 CLR 281, 298 (Gibbs CJ). In the UK courts have been ‘willing to find breaks and knots in the golden thread even where the relevant statute was silent as to the allocation of burdens of proof’: Paul Roberts and Adrian Zuckerman, Criminal Evidence (Oxford University Press, 2004) 374.
Queensland Law Reform Commission, above n 4, [6.3].
Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 1. See also, Charter of Human Rights and Responsibilities 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Bill of Rights Act 1990 (NZ) s 5.