Witnesses have a right not to produce documents, or answer questions they are asked during a Commission proceeding, on the grounds of self-incrimination. The test is whether there is a real and appreciable danger of the person being convicted of an offence if they answer the question. If the test is met, the person can choose not to answer the question.
This is important because a person can be required by the Commission to attend before the Commission and answer a question or produce specific documents. Ordinarily, if a person refuses or fails to answer the question or produce the documents, they commit an offence with a penalty of imprisonment.However, if a person has a reasonable excuse not to answer the question or provide the document, they are not required to do so.
The privilege against self-incrimination could provide a reasonable excuse for not answering a question or producing a document. If the privilege applies, because the person believes on reasonable grounds that their evidence will tend to prove that they have committed an offence, they are not required to answer that question where there is a ‘real and appreciable danger of conviction’.
The privilege against self-incrimination is a substantive common law right and is available in both judicial and non-judicial proceedings, including in proceedings before the Commission.
The Evidence Act 1995 (Cth) specifies how a federal court must deal with potential self-incrimination. Under s.128 of that Act, a witness in court proceedings may object to giving evidence on the grounds that the evidence may tend to prove that the witness has either committed an offence under an Australian or foreign law or is liable to a civil penalty. If the court determines that there are reasonable grounds for the objection, the court must inform the witness that:
The certificate prevents the evidence, and any evidence obtained as a direct or indirect consequence, from being used against the witness in any proceedings in an Australian court.
The protection extends only to evidence given under compulsion. The Federal Court has held that when a witness who is a party to the proceedings is being asked questions by their own legal representative (whether in evidence in chief or re-examination) the witness is not under any compulsion to give the evidence and therefore cannot ‘object’ under s..
The Commission is not bound by the rules of evidence or the Evidence Act 1995, but these provide general guidance as to the manner in which the Commission informs itself.
Where a person relies on the privilege against self-incrimination, the Commission cannot draw an adverse inference from failure to give the particular evidence. This means the Commission cannot assume the witness did not provide the evidence or the document only because it would have harmed their case before the Commission.
The Commission still needs to determine the application based upon the evidence that is before it. The decision will be made without the evidence the witness might otherwise have given if they had not relied on the privilege against self-incrimination.
Whether a matter before the Commission will be adjourned or otherwise delayed because one or more witnesses may assert a privilege against self-incrimination was considered by a Full Bench of the Commission in Visy Board Pty Ltd T/A Visy Board v Rustemovski and Ahmadyar. The Full Bench confirmed that McMahon v Gould sets down non-exhaustive guidelines and that it is necessary for the Commission to determine what justice requires in the circumstances.
A corporate entity does not have a privilege against self-incrimination.