The Queensland Government’s recent announcement of a stand-alone inquiry into the activities of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) marks the latest chapter in a long line of high-profile commissions of inquiry established across Australia.
First seen in 1980, the Costigan Commission, headed by Frank Costigan QC, was established to investigate criminal activities associated with the Painters and Dockers Union. The union had a militant history, and the commission was seen as politically motivated; however, its enquiries effectively revealed the so-called “bottom of the harbour” tax evasion schemes.
Forty-five years later, these bodies have become a recurring feature of the legal landscape, tasked with investigating complex and serious alleged criminal conduct that lies beyond the reach of conventional law enforcement. Or at least, so the public policy creating them says. There are now stand-alone and permanent commissions of inquiry throughout Australia.
With each new commission, questions arise about the powers these bodies wield, particularly their ability to compel witnesses to give evidence and produce documents, often at the expense of fundamental legal protections such as the privilege against self-incrimination.
As the legal profession prepares for the commencement of the CFMEU inquiry, it is timely to reflect on the statutory framework governing commissions of inquiry, the rationale for their coercive powers, and the critical rights and safeguards available to those who may be called as witnesses.
Purpose of commissions of inquiry
Commissions of inquiry are coercive because their governing legislation contains mechanisms for imposing sanctions on witnesses who refuse to cooperate.1 It is said that the purpose of the sanctions are to ensure compliance with commission requirements, not to punish disobedience. The effect is the same.
By coercing someone to give evidence (at all), whether that be through oral evidence or documentary production, it infringes the long-standing privilege against self-incrimination (related to the right to silence). Most statutes governing commissions of inquiry expressly abrogate this privilege.
Common reasons advanced for the use of commissions of inquiry include that they are independent of the executive, that existing law enforcement mechanisms are inadequate, that commissions can suppress crime, and that they are useful for exposing criminal activity or revealing the truth.2 Academics say that the creation of the NCA, NSWCC and QCC was a direct result of the conclusion that ordinary police powers are inadequate to tackle organised crime.3
The same rationale is given by the Australia Law Reform Commission, which says that such inquiries and their powers of compulsion are a vital investigative tool for regulators and investigators unable to obtain information through informal, voluntary or co-operative methods.4 It has been suggested that this is particularly useful in circumstances where the alleged crime is serious and otherwise shielded behind complex legal structures (such as corporations). In such situations, there may otherwise be no tangible evidence capable of being lawfully obtained which supports a prosecution.5
Also, commissions of inquiry have been used to investigate law enforcement itself such as police or ministers of parliament who are suspected of engaging in corrupt or criminal conduct police.6 For those who support the coercive powers of crime commissions, the privilege against self-incrimination simply impedes upon the prosecution’s ability to collect evidence and bring an accused person to justice.
The privilege against self-incrimination
The privilege against self-incrimination provides protection against compulsion to give evidence or to supply documents that would tend to prove one’s own guilt.7 In Australia, the relevant test has been stated as
“… a person is not bound to answer any question or produce any document if the answer or the document would have the tendency to expose that person, either directly or indirectly, to a criminal charge, the imposition of a penalty or the forfeiture of an estate which is reasonably likely to be preferred or sued for.”8
Individual liberties are obviously foundational. The rule itself is recognised as more than a rule of evidence in that it is a substantive right.9 Basically, the privilege protects individuals from oppressive methods of obtaining evidence of their guilt for use against them. The privilege attaches to individuals only.
Why though, is such a right so important? The reality is that the privilege protects the individual from the tyranny of the State. It protects the individual from oppressive and unfair tactics of law enforcement. It attempts to level the playing field between the individual and the State, ensuring, as much as possible, that an accused person obtains a fair trial. This is recognised by our own law reform commission, with the Queensland Law Reform Commission describing the privilege as a cardinal principle of our system of justice, a bulwark of liberty, fundamental to a civilised legal system and an integral part of international human rights law.10
Despite such recognition, it has been said by the legislature that it is sometimes necessary to balance the privilege against the need to ensure an investigating authority can obtain information relevant to a particular issue. For certain inquiries, it is said that the public interest in pursuing investigations assumes more significance. This at least is the conclusion of the legislature where they introduce legislation abrogating the privilege and establishing a commission of inquiry.11
If the legislature is to curtail the privilege, there must be a clear and specific legislative intent to do so. Where there is ambiguity, the courts will interpret the legislation in favour of the protection of the immunity from self-incrimination.12 Most often, the legislation is clear, and the privilege is removed. This can have serious consequences to individuals. A contempt charge, for refusing to answer questions, can lead to a criminal conviction and resultant punishment including a term of imprisonment. To limit this serious invasion of civil liberties, many statutes abrogating the privilege contain restrictions on how compelled information can be used. Direct and derivative use immunity are the most important restrictions. Questions of relevance can also safeguard individuals.
Derivative and direct use immunity
A ‘direct use immunity’ prevents the admission of evidence or information obtained through compulsion. This immunity alone has severe limitations because ‘there is the possibility that the answer may involve the disclosure of a defence or lead to the discovery of other evidence, these being consequences against which a person charged with a criminal offence is usually entitled to be protected.’13 A ‘derivative use immunity’ goes one step further and also protects against the use of information to uncover other evidence against the individual.
The onus of proof in criminal proceedings rests with the Crown. The prosecution must establish beyond reasonable doubt the commission of an offence. The High Court has expressed concerns about whether this fundamental rule is breached where a person is compelled to give evidence.14 Where there is concern as to whether evidence has been obtained through a derivative use of compelled information, it is unclear if the Crown bears the onus of proof where evidence is sought to be admitted in a criminal trial.15 According to a QLRC report, there is not an authoritative Australian statement of law on this point.16
In my opinion, it only seems consistent with the long-standing onus attaching to the Crown in criminal matters, that the Crown should have to negate any claim by the defence that the evidence is obtained through derivative use. In other words, an obligation exists for the Crown to prove that evidence is obtained through independent investigations. There does not appear to be any good reason why the Crown cannot explain their line of inquiry which revealed the evidence, independent of the compelled information.
In the United States of America, the prosecution has an affirmative duty to prove that the evidence sought to be admitted originates from a source wholly independent from the testimony obtained under a ‘derivative use immunity’.17
The position in Australia is less than satisfactory. There is no statutory requirement for the prosecution to prove the ‘derivate use’ information has an independent source. It has been suggested that the onus of proving that evidence is obtained independent from the person’s compelled testimony is too onerous. Specifically, ‘the overall prosecution may well fail, not because the evidence it has is derived from the evidence before the Commission but because the [Commonwealth Director of Public Prosecutions (CDPP)] cannot discharge the onus of proving that it was not so derived.’18 The CDPP have also suggested that derivative use immunity can be open to abuse by accused persons. According to them, there are situations where a person can engineer a compulsory disclosure so that the prosecution in any subsequent trial is obliged to prove that none of its evidence derives directly or indirectly from the compulsory disclosure.19
This seems fanciful. In an environment where these inquiries occur behind closed doors, and when the basis for decisions being made by investigators do not form part of public record, there is no evidentiary basis whatsoever to suggest such ingenuity by accused persons. The right to silence and privilege against self-incrimination are fundamentals to the social fabric of our society. And, it has well been established that caution ought to be taken with evidence provided to the Crown under compulsion and/or by a co-accused. It is patently unfair to place the burden of participating in the compulsion on an individual, without the resources of the State, if the State themselves cannot identify the independence of the derivate use.
Relevance
The notion of ‘relevance’ serves as a very restricted limitation to coercive examinations. The scope of an investigation is usually defined by the statutory criterion that governs investigations by standing commissions. In Ross v Costigan, the Federal Court held that a commission is not ‘determining issues between parties but conducting a thorough investigation into the subject matter. It may have to follow leads. It is not bound by rules of evidence.’20 The limitation to questioning is very remote; examiners are prevented from ‘going off on a frolic of their own.’21 Yet, there is also no requirement for there to be probative material before the commission to suggest that a particular line of inquiry is likely to reveal information relevant to the inquiry.22 It is clear that the requirement of relevance does not provide any real limitation on the investigation of commissions.
Discussion
For Australians, the risk of torture in a Star Chamber does not exist. This alone should not justify the abrogation of the privilege against self-incrimination. There is though, a clear divide between the individual and the State when it comes to access to arms.23 This is particularly the case in relation to the State’s powers of investigation. Police have the right to obtain a warrant and seize documents and other evidence. They can take someone’s fingerprints or other bodily samples and can force an accused to participate in a line-up procedure. They may even require a person to produce any access codes relevant to their devices. The State has financial and other resources not available to the individual. This must not be forgotten. Commissions of inquiry give the State even greater powers to compel evidence directly from an accused.
The High Court has cited power imbalance as a specific reason for the maintenance of the privilege against self-incrimination.24 Justice McDougall of the New South Wales Supreme Court defends the power imbalance argument for privilege stating:
“Some may dismiss this as a ‘thin end of the wedge’ argument, based on fear rather than reasons. I am not among their number. Historically, in societies where freedom from self-incrimination is not available, coercive means have been used to compel a person to speak. The treatment of suspected “terrorists” and “jihadists” after the initial phase of the current war in Afghanistan shows that history is still alive today.”25
Power balance is particularly important in an adversarial system such as Australia. For criminal trials, the starting point is the presumption of innocence and secondly, that the Crown bears the onus of proof. The High Court itself has recognised that these protections, going directly to the liberty of an individual, will be ‘weakened if power exists to compel a suspected person to confess his guilt.’26 In Hammond, the court restrained a commission of inquiry from compelling Hammond to answer self-incriminating questions relating to the subject matter of a criminal charge he was facing.
According to the Australian Law Reform Commission, the quality of evidence is diminished when the privilege against self-incrimination is abrogated.27 A good lawyer will always warn about the risks of perjury proceedings if a client is summonsed to appear and give evidence. Notwithstanding the extent to which a lawyer stresses this risk, a client may still choose to lie than to expose himself to criminal prosecution. This is especially the case where the subject matter of the inquiry is a serious crime. Where lies are elicited under compulsion, the credibility of the trial system may be compromised by the increased existence of untruthful evidence.
For many, the risk of perjury may encourage truthful evidence. However, a person compelled to answer incriminating questions still faces what the court has coined the “cruel trilemma”.28 They can refuse to answer (risking contempt), answer (risking incrimination) or lie (risking perjury). There is the real dilemma of exposing someone to a penalty no matter what he or she does. Prosecutors and ‘law and order’ campaigners would argue that an innocent person has nothing to hide and nothing to fear from answering questions truthfully. This simplistic argument neglects the importance of ‘fair play’ in an adversarial system of justice.29 It also neglects the situation of a reluctant witness being compelled to give evidence against someone else.
Conclusion
Commissions of inquiry exist to deal with a perceived threat from serious organised crime. A threat that is apparently unable to be addressed by traditional law enforcement agencies. Such assumptions are said to justify the abrogation of a long-standing privilege against self-incrimination. Perhaps it is true that alleged organised criminals are not the best vehicle to promote the privilege against self-incrimination. However, important questions surrounding civil liberties exist independent of a subject‘s credentials. The right to a fair trial must apply to all people.
The privilege against self-incrimination enjoys both national and international recognition as a fundamental human right. It should be protected because we live in an adversarial system of justice with continuing power imbalances between the State and its citizens. Despite this and almost 400 years of history, the privilege against self-incrimination is susceptible to the legislative whim. Where commissions of inquiry are established, it is important that the rights and interests of all participants are balanced. Where a witness is compelled to appear and to self-incriminate, it is vital that they are properly represented to understand their rights and obligations including the right not to have their answers used directly against them.
Footnotes
1 Donaghue, S., “Royal Commissions and Permanent Commissions of Inquiry” (2001), 63
2 Donaghue, Above n11, 16
3 Donaghue, Above n11, 19
4 Australian Law Reform Commission, Report, “Principled Regulation: Federal Civil and Administrative Penalties in Australia” (ALRC 95, December 2002), para 18.23-18.24
5 Dennis, I., “Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-incrimination” (1995) Cambridge Law Journal, 54, 342, 352
6 Donaghue, Above n11, 18
7 Sorby and Another v Commonwealth of Australia and Others (1983) 152 CLR 281 per Mason , Wilson and Dawson JJ, 310
8 Bridal Fashions Pty Ltd v Comptroller-General of Customs and Another (1996) 17 WAR 499 per Malcolm CJ, Ipp and Owen JJ, 504
9 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 per Mason CJ and Toohey J, 508
10 Ibid, 6
11 Rees and Another v Kratzmann (1965) 114 CLR 63 per Windeyer, J., 80
12 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 per Brennan J, 509. See also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
13 Donaghue, Above n11, 206
14 See Sorby and Another v Commonwealth of Australia and Others (1983) 152 CLR 281 per Gibbs CJ, 294
15 Above n21, 19
16 Above n21, 19
17 Kastigar v United States 406 US 441 (1972) per Powell J, 460
18 Sofronoff, P. “Derivative Use Immunity and the Investigation of Corporate Wrongdoing” (1994) Queensland University of Technology Law Journal, 10, 122, 126
19 Commonwealth Director of Public Prosecutions, “Submission to Australian Law Reform Commission Report – Privilege in respect of self-incrimination on other proceedings” 16 September 2005, available electronically at <http://www.alrc.gov.au/publications/15.%20Privilege%3A%20Other%20Privileges/privilege-respect-self-incrimination-other-proceedings#_ftnref194> (last viewed 19 May 2011)
20 (1982) 41 ALR 319, 335. Approved in Lloyd v Costigan [No 2] (1983) 76 FLR 279, 282
21 Ross v Costigan (1982) 41 ALR 319, 335
22 Lloyd v Costigan [No 2] (1983) 76 FLR 279, 281-282
23 Australian Law Reform Commission, Report, “Evidence” (ALRC 26, 1985) Vol 1, 487
24 Caltex Refinery Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 per Gleeson CJ, 127
25 McDougall, Above n39, 6
26 Hammond v The Commonwealth of Australia and Others (1982) 152 CLR 188 per Murphy J, 201
27 Above n44, 487
28 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 per Mason CJ and Toohey J, 498
29 R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1 per Lord Mustill, 32
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