17 Sep 2015

Should it stay or should it go: The privilege against self-incrimination in WHS legislation

by Michael Byrnes, Jacqui Ellis

You cannot refuse to answer questions in WHS investigations because the answers might incriminate you ‒ but should you be able to?

The Australian Law Reform Commission's review of Commonwealth laws that "unreasonably encroach upon traditional rights, freedoms and privileges" has borne fruit in the shape of the "Traditional Rights and Freedoms ‒ Encroachments by Commonwealth Laws Interim Report". A major issue for employers is the extensive examination of Commonwealth laws that seek to limit the privilege against self-incrimination, including WHS statutory provisions that seek to exclude the right to claim the privilege.

The Interim Report has concluded that the limitation or exclusion of the common law right against self-incrimination in a number of laws, including work health and safety laws, should be retained, but it is still seeking public submissions on this complex policy issue.

Privilege against self-incrimination     

The privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person.

The privilege extends to natural persons but does not apply to corporations, and is defined by the ALRC as a "basic and substantive common law right, and not just a rule of evidence".

The abrogation of this privilege in the context of work health and safety investigations is significant in that individuals can be compelled to answer questions by inspectors, and provide information and documents to an inspector, even if the answers or documents presented may tend to incriminate that person.

Why do we have it?

Well, on a basic and fundamental level, the privilege is said to protect freedom and dignity. It is also considered necessary to preserve the presumption of innocence, and to ensure that the burden of proof remains on the prosecution.

The privilege against self-incrimination in WHS legislation

While some statutes protect the privilege against self-incrimination, there are a number of Commonwealth laws, including workplace relations laws, which remove or diminish the right to claim privilege.

For example, section 172(1) of the Commonwealth Work Health and Safety Act 2011 (Cth) (WHS Act), which concerns investigations into unsafe or unlawful work practices, prohibits a person from refusing to answer a question or providing information or a document on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty. Use and derivate use immunity are provided in this provision.

The Government justified this in the Explanatory Memorandum:

"These arrangement are proposed because the right to silence is clearly capable of limiting the information that may be available to inspectors or the regulator, which may compromise inspectors' or the regulator's ability to ensure ongoing work health and safety protections…Ensuring work health and safety are sufficiently important objectives as to justify some limitation of the right to silence".

The use of that information is, however, constrained. Any answer to a question or information or a document provided by an individual to an inspector pursuant to section 172(1) will not be admissible as evidence against that individual in civil or criminal proceedings (other than proceedings arising out of the false or misleading nature of the answer, information or document).

Similar provisions also exist in the harmonised work health and safety legislation in New South Wales, Queensland, Tasmania, Northern Territory and the ACT.

In South Australia, in stark comparison, section 172 of the Work Health and Safety Act 2012 (SA) excuses an individual from answering a question or providing information or a document to an inspector on the ground that the answer to the question, information or document, may incriminate that person.

Arguments for and against the privilege against self-incrimination in the ALRC Interim Report

The Interim Report contains a number of arguments supporting the retention of this provision.

For example, the Australian Council of Trade Unions (ACTU) argues that there is clear public interest in retaining the restriction in section 172 of the WHS Act as it helps to ensure "healthy and safe working conditions" by enabling inspectors to have "strong unambiguous powers to obtain information", thus ensuring employers are complying with workplace legislation.

On the other hand, in his submission to the ALRC Freedoms Inquiry in response to the Interim Report, Professor Jeremy Gans argues that federal statutes which seek to exclude the privilege against self-incrimination are incompatible with existing common law principles. Professor Gans recommends that the ALRC take a closer look at the justification for federal statutes that exclude privileges that are "clearly a common law right", and conduct a further review of their compatibility with common law principles to determine whether they should be retained or abolished.

ALRC's interim view: restrictions on the privilege against self-incrimination should stay

The Interim Report has concluded, on the basis of previous reviews, that the current use immunities and derivative use immunities, including section 172(2) of the WHS Act, provide "an appropriate safeguard of individual rights" and that such provisions "appropriately justify laws that exclude the privilege against self-incrimination".

The ALRC is, however, still seeking comment as to whether a further review of the immunities is necessary. The closing date for submissions is 21 September 2015.

Given that the majority of States and Territories in Australia have adopted harmonised work health and safety laws, the outcome of this review will be quite significant. If any change were to occur to Commonwealth law, it could also result in a change to the laws in other States and Territories.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.