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Abrogation of the Privilege Against Self-Incrimination

NCJ Number
Date Published
December 2004
This report explores the circumstances under which the privilege against self-incrimination may be abrogated in Australia.
While the privilege against self-incrimination protects individuals from making disclosures to the court that might prove one’s guilt, there are circumstances in which this right may be abrogated, such as when investigating authorities need to obtain information about particular situations. This report focuses on the general principles relating to abrogation of the privilege against self-incrimination and the related penalty provision in Australia. The development of a framework for rationalizing legislative provisions that abrogate these privileges is explored. Rationales for the privileges are described, as are arguments against these privileges, which center on the prosecution’s ability to collect evidence and victims’ rights concerns. The type of information protected by these privileges is contrasted to the type of information not protected under the privileges. Justifications for abrogation are explored and the issue of implied abrogation is discussed. Also examined in this report is the type of forum where abrogation of privileges may take place and how information obtained under compulsion may be utilized, which includes a detailed exploration of immunity and exceptions to immunity. Finally, provisions that refer to the Commissions of Inquiry Act 1950 are examined, as are related legislation in Queensland and in other Australian jurisdictions. Recommendations are offered and a draft legislation enabling the implementation of the recommendations is presented. Footnotes, appendixes