The privilege against self-incrimination in regulatory investigations

What is the privilege against self-incrimination in regulatory investigations? The privilege against self-incrimination is the right of an individual to refuse to answer any question, or to produce any document or thing, if to do so 'may tend to bring him into the peril and possibility of being convicted as a criminal'.1

The privilege against self-incrimination is 'a basic and substantive common law right, and not just a rule of evidence'.2 Subject to any statutory modification, that common law right is available:

to persons suspected of a crime (e.g. a criminal defendant or potential defendant);3 to persons questioned in civil proceedings (e.g. an individual giving evidence in court proceedings for regulatory offences);4 and in non-curial contexts (e.g. regulatory and workplace investigations).5 The privilege against self-incrimination is related to the principle that, in a criminal trial, the prosecution must prove its case unassisted by the accused defendant. As summarised further in our article " Understanding the playing field", this principle is a fundamental aspect of our accusatorial system of criminal justice.

What is the right to silence? The privilege against self-incrimination relates to, but differs from, the 'right to silence'. In Australia, the privilege against self-incrimination does not hold absolute and there is 'no free-standing or general right of a person charged with a criminal offence to remain silent.'6

The right to silence protects an individual from being required to testify against oneself (whether or not that testimony is incriminating). It is akin to the right created by the Fifth Amendment to the Constitution of the United States (i.e. to 'plead the fifth'). The privilege...