Australia: The Privilege against Self‐Incrimination: Recent Developments
| DOI | https://doi.org/10.1108/eb025842 |
| Pages | 283-286 |
| Date | 01 January 1998 |
| Published date | 01 January 1998 |
| Author | John Cotton |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 5 No. 3 — International
INTERNATIONAL
Australia: The Privilege against Self-incrimination:
Recent Developments
John Cotton
In a recent article,1 Dr John Breslin discussed
European developments concerning the privilege
against self-incrimination ('the privilege'). His
comments related primarily to the Saunders case
and since then, in December 1996, the European
Court of Human Rights has confirmed the Euro-
pean Commission's decision in favour of Sir
Ernest Saunders.
However, the purpose of this note is not to
discuss that decision or its effect on the English
position. Dr Breslin and other European commen-
tators will no doubt continue, as he put it, to
'grapple with the rather inconclusive state of the
law under the convention'.2 Instead, the note will
point to recent developments in Australian law
which relate to some of the issues raised in Dr
Breslin's article.
The following Australian issues will be dis-
cussed:
— the distinction between the right to silence and
the privilege;
— the confusing aspects of the High Court of
Australia's decision in the Caltex case,3 and the
extent to which legislation and subsequent case
law have dealt with them;
— the effect on the director's personal privilege of
abolishing the company's privilege; and
— the potential for circumventing that personal
privilege by
nolle prosequi
or similar devices.
THE PRIVILEGE AND THE RIGHT TO
SILENCE
It is difficult to disagree with Dr Breslin that the
limits of the privilege are uncertain. However, the
distinction between the privilege and the right to
silence, which seems unclear in Europe, has been
firmly maintained by the Australian courts. Admit-
tedly, the two principles can be hard to separate,
particularly in criminal proceedings. Thus an
accused need not give evidence at his own trial,
but does this reflect the privilege or the right to
silence?4
Lord Mustill listed the privilege as the second of
the disparate group of immunities covered by the
term 'right to silence'. He noted that it is 'easy to
assume that they are all different ways of express-
ing the same principle, whereas in fact they are
not'.5 In Australia the right to silence has similarly
been seen as the wider concept, incorporating the
privilege.6
Such distinctions apparently have no place
under the European Convention of Human
Rights. The two terms seem to be used inter-
changeably, and it is even suggested that the privi-
lege might be the broader principle, covering both
the right to remain silent and the freedom to speak
falsely.7
Unfortunately, respect for English case law has
also led the Australian courts into less helpful
areas.
They have resurrected the old distinction
between the privilege against self-incrimination
and the privilege against self-exposure to a penalty,
with confusing results in the
Caltex
decision.
THE
CALTEX
DECISION
Unquestionably, this established the legal principle
that 'the common law of Australia docs not recog-
nise a claim by a company to a privilege against
self-incrimination'.8 The High Court thus pre-
ferred the approach taken in the USA to the
common law position in England, Canada and
New Zealand.
The Environment Protection Authority was
taking criminal proceedings against Caltex under
legislation forbidding water pollution. To obtain
evidence for those proceedings, it required Caltex
to produce the same documents under two sepa-
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