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In which particular circumstances should the privilege be removed by
legislation, how should this be done, and what kinds of immunities should be
offered in place of the privilege?
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267 IN NEW ZEALAND, many statutory provisions confer broad powers on courts, quasi-judicial tribunals, government officials, and even private individuals, to compel others to answer questions or produce documents. The statutory provisions fall into four broad categories, each of which will be discussed in this part of the paper. They are
268 This chapter is concerned with the first two categories – express preservation or removal of the privilege. The following chapter focuses on an example of express removal contained in the Serious Fraud Office Act 1990. Chapter 14 discusses provisions which are silent about their impact on the privilege, and Chapter 15, the Australian voluntary disclosure procedure.
269 As background to the following discussion, see Appendix B, which contains a list of explicit statutory references to the privilege in New Zealand. The majority of provisions in Appendix B preserve the privilege. While there is no set pattern, removal appears to occur most frequently in what may loosely be termed commercial and governmental spheres (ie, statutes concerned with the administration of government and the central economy). Preservation is more common in the regulatory welfare sphere (ie, statutes concerned with public health and particular markets).
270 In those New Zealand statutes expressly preserving the privilege, the status accorded the privilege varies markedly. In some cases, the particular context with which the legislation deals may account for this. In others, it is difficult to detect any reason for differences concerning
271 The privilege has been expressly preserved in a number of ways. Examples serve to illustrate this.
272 Section 11 of the Social Security Act 1964 empowers the Director-General of Social Welfare (by notice in writing) to require certain information or documents from Crown employees, in order to detect welfare fraud and wrongful claims to benefits. Subsection (4) expressly preserves the privilege against self-incrimination in the following way:
Nothing in subsection (1) of this section shall require any person to provide any information or produce any document that would be privileged in a Court of law on the ground of self-incrimination.[55]
273 In contrast to the specific reference to the privilege against self-incrimination in the current s 11, the Bill reported back from the Social Services Select Committee contained a less specific provision:
Except as provided in subsection (5) of this section, nothing in subsection (1) of this section requires any person to provide any information or produce any document that would be privileged in a Court of law.
274 A similar way of expressly preserving the privilege is for legislation to bestow broad information-gathering powers on investigative agencies, while at the same time preserving all privileges or immunities which would be available to a witness in a court of law. Examples of this can be found in the Commissions of Inquiry Act 1908, and they apply prior to and during hearings. Section 4C(4) states:
Every person shall have the same privileges in relation to the giving of information to the Commission, the answering of questions put by the Commission, and the production of papers, documents, records, and things to the Commission as witnesses have in court.[56]
275 As already noted in the preceding chapter, in relation to people summonsed to give evidence before a Commission of Inquiry, s 6 provides:
Every witness giving evidence, and every counsel or agent or other person appearing before the Commission, shall have the same privileges and immunities as witnesses and counsel in Courts of law.
276 Apart from Commissions of Inquiry established under the Commissions of Inquiry Act, certain other bodies have their powers. For example, s 153 of the Legal Services Act 1991 says:
For the purposes of this Act, sections 4A to 9 of the Commissions of Inquiry Act 1908 shall apply to the Board and the Authority as if those bodies were Commissions of Inquiry established under that Act.
277 Yet another formula for preserving the privilege can be found in s 37(6) of the Ozone Layer Protection Act 1990:
Nothing in this section shall limit or affect the privilege against self-incrimination.
278 Several statutory provisions expressly preserve the privilege in relation to oral statements only. Documentary and other real evidence is excluded. An example of this is contained in the Films, Videos, and Publications Classification Act 1993. Section 106(4) gives inspectors powers, on entry to non-residential premises where films and publications are displayed or offered for sale, to require the production of documents for inspection and to demand information reasonably required for the purposes of the inspection. Subsection (5) limits the express protection from self-incrimination to oral answers:
No person shall be required to answer any question by an Inspector if the answer would or could tend to incriminate that person, and that person shall be informed of that right before an Inspector exercises the power to demand information conferred by this section.
279 A slightly different wording, which also restricts the privilege’s ambit to oral answers, can be found in s 86(2) of the Casino Control Act 1990. Section 86 gives inspectors powers to require casino licence holders and employees to produce certain documents, gaming equipment and, generally, to provide information. Subsection (2) states:
No person shall be required to answer any question asked by an inspector if the answer would or could tend to incriminate that person.
280 Section 4C(4) of the Commissions of Inquiry Act is a provision preserving the privilege for documents (see above). Slightly different wording to the same effect is used in s 27(1)(b) of the Fishing Vessel Ownership Savings Act 1977 (an offence provision). The privilege for information, encompassing documents, forms part of the offence of failing to supply information in writing to the National Bank of New Zealand Limited. There is a proviso to the offence as follows:
Provided that no person shall be required to supply any information tending to incriminate himself . . .
281 In most of the above statutory provisions there is no explicit duty imposed on officials enforcing the various Acts to warn those under investigation of the availability of the privilege. An exception is s 106(5) of the Films, Videos, and Publications Classifications Act (quoted above), which expressly obliges inspectors to inform people of their right to claim the privilege.
282 Some offences of failing or refusing to comply with requests for information are strict liability offences (eg, see the Fisheries Act 1983), while others provide that non-compliance does not amount to an offence if there were good reasons for it (eg, the Commissions of Inquiry Act offences). The words used to convey the latter vary, and include “sufficient cause” (eg, s 11(4) Social Security Act) and “insufficient excuse” (eg, s 9 Commissions of Inquiry Act). In some instances, such as s 134(b) of the Films, Videos, and Publications Classifications Act, the privilege is expressly referred to as a legitimate excuse.
283 The range of maximum penalties for failing or refusing to comply with statutory information-gathering powers is broad, and in most cases, there is no apparent justification for the range. As an example, a breach of s 79(3) of the Fisheries Act is punishable by a maximum penalty of $250,000 and an additional fine of $1,000 for every day the breach continues. In contrast, failure to comply with the requests of a health and safety in employment inspector under the Health and Safety in Employment Act 1992 is punishable by a maximum fine of $50,000, if the failure caused any person serious harm, and by a maximum fine of $25,000 in any other case.
284 The following discussion looks at the variety of New Zealand’s approaches to removing the privilege, together with statutory immunities provided in place of the privilege, namely use immunities, use fruits immunities and transactional immunities. The New Zealand legislature’s approach to removal has been piecemeal, concerning the contexts in which the privilege is removed, the extent and language of removal, and the breadth of immunities provided in the privilege’s stead.
285 An example of a provision which removes the privilege comprehensively in the particular area (ie, encompassing all information and the privileges of liability to a civil penalty and forfeiture) is contained in s 49(3) of the Gas Act 1992. Subsection (3) provides:
No person shall be excused from answering any question, or furnishing any information or particulars, when required to do so under subsection (1) of this section on the ground that compliance with that requirement could or would tend to incriminate that person or subject that person to any penalty or forfeiture.
286 Other provisions remove the privilege against self-incrimination, and do not refer specifically to the penalty and forfeiture privileges. Or, in removing the privilege, they refer to oral statements specifically, and do not indicate whether the privilege for documentary evidence remains. Section 267(1) of the Companies Act 1993 exhibits both of these features:
A person is not excused from answering a question in the course of being examined under section 261 or section 266 of this Act on the ground that the answer may incriminate or tend to incriminate that person.
287 In contrast, s 15 of the Secret Commissions Act 1910 is an example of a provision containing a very specific formula for removal (ie, in relation to the privilege in civil or criminal proceedings concerning an offence against the Act):
No person shall in any civil or criminal proceedings be excused from answering any question put either viva voce or by interrogatory, or from making any discovery of documents, on the ground that the answer or discovery may criminate or tend to criminate him in respect of an offence against this Act . . .
288 Use immunities are immunities from the admissibility of self-incriminating disclosures in proceedings and they are by far the most common kinds of immunities provided for in New Zealand legislation. They can be given in exchange for compelled self-incriminating information at an investigative stage or in proceedings, as in the following example from s 267(2) of the Companies Act:
The testimony of the person examined is not admissible as evidence in criminal proceedings against that person except on a charge of perjury in relation to that testimony.
289 The varieties of statutory use immunities include immunity from use in proceedings involving prosecution for specific offences (eg, s 15(2) of the Secret Commissions Act); immunity from admission in criminal proceedings alone (eg, s 267(2) of the Companies Act); immunity extending to civil proceedings (eg, s 49(4) of the Gas Act); immunity restricted to documents (eg, s 15 of the Secret Commissions Act); and immunity extending to documents (eg, s 49(4) of the Gas Act). In addition, some immunity provisions expressly exclude immunity from use of the incriminating disclosures in prosecutions for perjury (eg, s 267 of the Companies Act), while others make no explicit reference to perjury (eg, s 15 of the Secret Commissions Act).
290 Use immunities only apply to the subsequent admissibility of compelled self-incriminating information in proceedings. Therefore, they are not comprehensive protection against other agencies gaining access to the information, either prior to, or during, proceedings.
291 Use fruits immunities (also known as derivative use immunities) are immunities from the admissibility of information in proceedings derived from compelled self-incriminating disclosures. The immunity prevents the admissibility of evidence of an incriminating nature discovered as a consequence of the original self-incriminating disclosure as well as the admissibility of the original compelled disclosure. As Appendix B shows, we could find no examples in New Zealand legislation of use fruits immunities. This is somewhat surprising, given that the common law privilege addresses the consequences of disclosure of information, in addition to the disclosure itself: see R v Boyes (1861) 121 ER 730, 738.
292 Transactional immunities are immunities from prosecution arising as a direct or indirect result of making compelled self-incriminating disclosures. We have located only two legislative examples of transactional immunities, in s 253 of the Legislature Act 1908 and s 248 of the Electoral Act 1993.[57] Both provisions set out a procedure whereby a person required to provide self-incriminating information is in return issued with a certificate. On production of the certificate, any resulting proceedings against the person will be stayed. Immunities from prosecution are sometimes granted on a discretionary basis by courts or prosecutors: see the discussion in chapter 14.
293 In Western Australia, it is possible for a certificate of immunity from prosecution to be given in civil proceedings: see Re Application for Inquiry, Election of Officers, Transport Workers’ Union of Australia, Western Australian Branch (1989) 89 ALR 575, 579. However, Cotton notes that this is not typical and transactional immunities are usually granted only in criminal proceedings.[58]
294 As already noted, legislation which currently expressly preserves or removes the privilege does not clearly reveal in what circumstances either approach will be adopted. The Commission believes that some consistency needs to be introduced into the legislation regarding its treatment of the privilege. The starting point in deciding whether it is appropriate to remove the privilege in a particular context and replace it with an immunity is that the privilege applies unless it has been explicitly removed. The privilege’s significant status has been reinforced in ss 23(4), 25(d) and 27(1) of the New Zealand Bill of Rights Act 1990. Specific factors which should be considered by policy-makers and drafters include the following:
295 The Commission seeks comment on these principles, in relation to existing provisions. The desirability of a review of existing provisions is discussed in chapter 14.
296 Elsewhere in this paper it has been proposed that the Evidence Code should expressly preclude claims of privilege in relation to
297 We have also proposed (in chapter 14) that statutory information-gathering powers should not be interpreted as removing or limiting the privilege unless this is done clearly and explicitly. If these proposals are implemented, some current legislative provisions need to be amended.
298 Given the proposed clarification and reiteration of the privilege in the Evidence Code, we have considered whether preservation clauses in particular information-gathering provisions will be necessary. The Commission has reached the conclusion that preservation clauses are desirable as a reminder to those exercising statutory powers in information-gathering contexts of the privilege’s existence and application.
299 In addition, preservation provisions should impose an express obligation on the questioner to inform the person from whom self-incriminating disclosures are sought of his or her right to claim the privilege, along the lines of s 106(5) of the Films, Videos, and Publications Classifications Act. The need to inform people who have been detained or arrested under any enactment of their rights is already reflected in s 23 of the Bill of Rights Act.
300 In making the proposal that there should be an obligation to inform, the Commission nevertheless recognises that officials exercising information-gathering powers at an investigative stage are often at a disadvantage in knowing what is the appropriate response to a claim of privilege. Brennan J acknowledged this in Pyneboard v Trade Practices Commission and another [1983] 45 ALR 609, 629:
How and by whom would the claim be decided? Would the obligation be defeated merely by the person from whom the information is sought claiming the privilege? Or would the claim of privilege defeat the obligation only if it was admitted by the agency which is seeking to enforce the obligation?
301 The courts have been gradually introducing clarity to this area of the law. For example, recent decisions have indicated that
302 Alongside statutory obligations to inform individuals of their right to claim the privilege and judicial clarification of what that right involves, there is a need for agreed protocols or administrative guidance for the people exercising statutory powers (including tribunals) and counsel for suspects in investigative contexts (with perhaps the aid of the New Zealand Law Society), to foster awareness and uniformity of practice concerning
303 It may be that there are other means of assisting enforcement agencies in deciding whether claims of privilege are legitimate in particular cases. For example, it would be possible, albeit cumbersome, to design a process by which claims could be brought before a court for a ruling when they arise. The Commission invites submissions on this issue.
304 In relation to proceedings as distinct from investigations, we have already noted that it is customary for a court to warn witnesses of the risk of self-incrimination and of the availability of the privilege in proceedings, but there is no obligation to do so (R v Goodyear-Smith (unreported, High Court, Auckland, 26 July 1993, T 332/92, Anderson J)): see chapter 15 for discussion on whether there should be a statutory obligation to inform witnesses in court proceedings of the risk of self-incrimination when the risk arises.
305 To avoid any doubt, when the privilege against self-incrimination is preserved in legislation, provisions making it an offence to fail or refuse to supply information should be expressly subject to the preservation provision. Where possible, the language used and the maximum penalties in such offence provisions should also be consistent across the statute book.
306 The use immunity protects only the disclosure and is not concerned with the consequences of that disclosure. Therefore, when a use immunity is provided in place of the common law privilege, it is not as complete a protection against self-incrimination. As Lord Wilberforce observed in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, 443, disclosure of information
may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating nature... The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences.
307 In the 1980s, it became common in Australian federal legislation to provide that, where the privilege was removed, immunity from admissibility was granted, not only for resulting answers, but also for information obtained as a direct or indirect consequence of those answers (eg, s 48(6) Proceeds of Crime Act 1987). As a result of submissions made by the Australian Securities Commission, the Report of the Joint Statutory Committee on Corporations and Securities, Use Immunity Provisions in Corporations Law and the Australian Securities Commission Law (Canberra, 1991), concluded that the problems caused by use fruits immunities were such as to frustrate the achievement of Parliament’s objective of cleaning up Australia’s capital markets.[59]
308 The Australian Securities Commission suggested that a corporate criminal might consciously use the statutory immunities to make a full confession for which he or she could not be prosecuted.[60] The argument was also made that use fruits immunities place too great an onus on the prosecution (ie, the prosecution must prove beyond reasonable doubt that evidence was not obtained from information given by the compelled witness). These reasons for discarding use fruits immunities are not convincing.
309 First, a company director would be wary of volunteering anything to his or her detriment, because of the possibility of civil proceedings (Cotton, 132). Second, the Australian Securities Commission’s claim that the burden of proof is too onerous on the prosecution can be disputed by reference to Kastigar v United States 406 US 441 (1972). In that case, the court suggested that the “government will have no difficulty in meeting its burden by mere assertion if the witness produced no contrary evidence” (469). Third, the statements from the Australian High Court on the question of onus, suggest that it lies on the defendant, rather than on the prosecution (Cotton, 132). Murphy J in Sorby v The Commonwealth (1983) 46 ALR 237, 260 said, for example:
Even immunity from derivative use is unsatisfactory, because of the problems of proving that other evidence was derivative, and because of the real possibilities of innocent or deliberate breach of the immunity. Hence the trend in the United States has been to “transactional immunity” that is, that once a witness has been compelled to testify about an offence he or she may never be prosecuted for that offence, no matter how much independent evidence may come to light.
310 In any case, we suggest that the Australian Securities Commission’s view is less persuasive in the face of the recent extension of the voluntary certification procedure in s 128 of the Evidence Act 1995 (Aust) to a use fruits immunity. Subsection (7)(b) provides that “evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence” cannot be used against the person (except in criminal proceedings for perjury). This is subject to the rider, in s 128(8), that the certification procedure does not apply to the giving of evidence by criminal defendants when the self-incriminating evidence relates to a fact in issue in the immediate proceedings. When a use fruits immunity is granted at an investigative stage, it will prevent the admissibility of the protected evidence in subsequent proceedings.
311 In New Zealand, the case for suggesting that a use and use fruits immunity should be provided when the privilege is removed is reinforced by ss 23(4), 25(d) and 27(1) of the Bill of Rights Act.
312 The Commission proposes that when legislation removes or restricts the privilege in a particular context, both a use immunity and a use fruits immunity should generally be provided in its stead. A use immunity alone should only be acceptable if those sponsoring the proposed legislation can show that provision of a use fruits immunity would thwart an identifiable and specific objective of the legislation, and that that objective outweighs the need to give the person comprehensive protection from self-incrimination in the particular statutory context. What we envisage is an onus on the sponsor, analogous to that in s 5 of the Bill of Rights Act – namely, those who seek to limit rights contained in the Act must show that those limits are reasonable: see MOT v Noort (1992) 3 NZLR 260, 283, where Richardson J discussed the requirements of s 5. We seek submissions on this proposal.
313 Any use immunity or use fruits immunity provided should not prevent the admissibility of self-incriminating information disclosed in a prosecution for perjury or deliberately making false statements. A person who deliberately misleads representatives of the State carrying out statutory powers can be said to have forfeited the protection which the privilege, or statutory immunities in its place, provides. The interests which the privilege protects (discussed in chapter 2) are, in these circumstances, largely inapplicable. For example, there is no need to protect the person from interrogative suggestibility leading to unreliable admissions, because the person has calculatedly chosen to lie.
314 The Commission does not propose the widespread use of statutory transactional immunities because they are heavy-handed. Criminal prosecutions are not merely impeded by them, but prevented. Generally, the privilege is not a means by which to prevent prosecutions or civil actions for a penalty, but rather to protect witnesses in the event of such proceedings. Because of this encroachment on prosecutorial discretion, statutory transactional immunities may be open to the criticism that they are against the public interest in bringing offenders to justice.
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