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Troubling questions about our proliferating star chambers

Behind the debate about the reinstatement of the building industry watchdog are important questions about the erosion of common law rights in Australia, argues Morry Bailes.

Apr 07, 2016, updated Apr 07, 2016
A scene from the 1983 film "The Star Chamber", in which a group of judges take the law into their own hands.

A scene from the 1983 film "The Star Chamber", in which a group of judges take the law into their own hands.

The battle lines in federal parliament have been clearly drawn over the intended reintroduction of the former Coalition Government’s Australian Building and Construction Commissioner (ABCC).

The legislation has prompted discussion about a double dissolution, and has been characterised as a war of ideology between the trade unions and the government, over the alleged corrupt conduct of some union officials in the construction industry. Talks continue with the suggestion that the scope of the office may be expanded to pick up other industries where, presumably, alleged dodgy conduct is also suspected.

So all up it is a recipe for a parliamentary showdown and most commentators have understandably framed this debate through the political lens. However, it is more than that: it’s also an important discussion about law and rights. It goes like this.

Embedded in the ancient traditions of the common law is the right against self-incrimination and the right to silence. The High Court of Australia in the case of Reid v Howard put it like this: “The privilege (against self incrimination), which as been described as ‘a fundamental … bulwark of liberty’, is not simply a rule of evidence, but a basic and substantive right common law right.”

Abrogating those rights has been of continual interest to parliaments, here and in other Westminster countries. My recollection is the contemporary erosion probably began in the UK when parliament, frustrated with the right to silence being exercised from the point of arrest to the point of trial by IRA suspects, introduced the concept of the ability of a judge to direct a jury to draw an adverse inference from the silence of the accused. Not only did this mark a departure from common law principles, it meant the exercise of those rights could lead to an adverse inference being drawn against the accused by the jury.

That has now made its way by statute into most jurisdictions. But things have gone a lot further than that. In times past the English version of what we have now was the old Star Chamber which made its appearance in English law from the late 15th century. It could do what the courts could not. In Australia there are now current examples of circumstances where the wholesale removal of the right to silence and the right against self-incrimination have occurred. Here are a few:

1. ACC: The Australian Crime Commission strips away all common law rights against self-incrimination. The person under examination is compelled to answer questions whether the answers are incriminatory or exculpatory.

2. ICAC: Standing commissions against corruption, such as our Independent Commissioner Against Corruption, or the ICAC in NSW, which has of late come under considerable fire for the use or alleged misuse of its powers, remove all common law rights.

3. Police: An example from my own backyard is police, who are compelled as sworn members to answer the questions of a member of superior rank or a member of Internal Investigations.

In all these examples parliament has abrogated the common law right against self-incrimination. Questions put must be answered and answered truthfully. Rights are stripped bare and there is no avoiding the questions of the examiner. At least that’s the theory. I shall deal with what the courts have had to say shortly.

Many would question whether we can control our star chambers. Are they really such a good idea in the first place? Just how far are we prepared to go in allowing the parliament to abrogate our rights, and do the means always justify the end?

The other aspect that is confronting to the lawyer is that some of these examinations are public. Interestingly in other fora of inquiry such as the Coroners Court or a Royal Commission, while a witness may be summonsed and is compelled to answer questions, the right against self-incrimination survives. If a witness will, by answering a question, admit to criminal wrongdoing, for instance, they may decline to answer. Not so in standing commissions against corruption even when their hearings are public. No warning of what will be put to a witness is given and while legal representation is allowed there are limits to what a lawyer can do in such proceedings.

The primary concern for lawyers and courts is not that evidence so gathered can be directly introduced into a criminal court to be used against the accused, but the creeping derivative use of such evidence, that leads to criminal prosecutions when if the usual common law privileges were upheld could never have happened in the first place.

How such evidence is used by prosecuting authorities is a real and serious question. The issue arose squarely in the High Court case of X7 v Australian Crime Commission. In this case, with Commonwealth criminal proceedings on foot the ACC attempted to obtain evidence from the appellant using coercive powers.

Important constitutional issues were stake. Every case turns on its own facts, but here the court found the ACC lacked power. That said Justice Kiefel in her judgement explained “that a statutory intention to abrogate or restrict a fundamental freedom or principle … must be expressed with irresistible clearness”, adding that this “is not a low standard”. In other words parliament can do it, but must do so in clear and unambiguous terms. The High Court, incidentally, was unanimous in its judgement.

That leads us back to the current debate about the re-introduction of the ABCC, because at play are the very same coercive powers and the stripping away of common law rights. It is another example of the erosion of those privileges the common law holds so dear, and raises the ever-present question of how the collected evidence may ultimately be used by prosecutorial authorities.

It is one of those topics where opinions will differ, which means it is ultimately a matter for the body politic to decide. What sort of society do we want to live in? Are we at ease with the star chamber for the perceived baddies? Are we satisfied that we are sufficiently policing the police? (A case in point is the NSW ICAC). Many would question whether we can control our star chambers. Are they really such a good idea in the first place? Just how far are we prepared to go in allowing the parliament to abrogate our rights, and do the means always justify the end?

Of course, the reality is the horse has bolted and corruption in a society is destructive both to the rule of law and economic prosperity. There are very good public policy reasons to want to stamp it out, but therein lies the dilemma, because on the other hand are our treasured freedoms, our rights, our individual privileges; our ‘bulwarks of liberty’.

As with the sacrifices we are asked to make of our individual liberties in exchange for greater homeland security, these questions are best answered through public debate. So in the ABCC debate, it may be helpful to look past the talk of double dissolutions, past the political excitement and past the partisan political jousting, and concentrate for a moment on the core issue: just what society do we want to live in, one that protects our common law privileges and leaves law enforcement to conventional means, or one that strips common law privileges away for the sake of expediency?

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.

Disclosure: Morry Bailes is a member of the Liberal Party.

 

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