10.17 The privilege is not expressly protected by the Australian Constitution, nor has it been implied by the courts.
Principle of legality
10.18 The principle of legality provides some protection to the privilege against self-incrimination. When interpreting a statute, courts will presume that Parliament did not intend to interfere with the privilege, unless this intention was made unambiguously clear. In Pyneboard Pty Ltd v Trade Practices Commission (1985), 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. 
10.19 The right to claim the privilege against self-incrimination is enshrined in art14(3)(g) of the ICCPR 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.
10.20 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’. However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations. The High Court has confirmed the ‘influence’ of this article on the common law.
Bills of rights
10.21 In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. The European Convention on Human Rights enshrines the privilege against self-incrimination. In the UK case of R v Lambert (2001), 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.
10.22 The privilege is enshrined in bills of rights and human rights statutes in the United States, the United Kingdom, Canada and New Zealand. For example, s 11(c) of the Canadian Charter of Rights and Freedoms provides:
11. 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.
10.23 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.
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 1.
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Crafter v Kelly  SASR 237.
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 618 (Mason ACJ, Wilson & Dawson JJ).
Minister for Immigration v B (2004) 219 CLR 365, 425  (Kirby J).
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 1.
Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 499 (Mason CJ & Toohey J).
European Convention for the Protection of Human Rights and Fundamental Freedoms 4XI, 1950 (entered into Force 3 September 1953) art 6. 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  16 EHRR 297 (1993).
R v Lambert  UKHL 37 .
United States Constitution amend V.
Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 6. The right against self-incrimination is implied by art 6 of the ECHR according to the European Court of Human Rights; as the European Court states, ‘the right is one of certain generally recognised international standards which lie at the heart of a fair procedure under Article 6’: Heaney and McGuinness v Ireland (2001) 33 Eur Court HR 12, 40.
Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 13.
Bill of Rights Act 1990 (NZ) s 25(d).
Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 11(c).
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(k); Human Rights Act 2004 (ACT) s 22(i).