Abstract
This thesis addresses the problem of the privilege against self-incrimination ("the privilege") in civil proceedings between private parties in Australia and New Zealand. This problem has been recognised by judges, law reform bodies and legislators in both countries for twenty years. However, the legislative response has been inadequate.
The privilege is easily confused with other related concepts, particularly the right to silence in criminal proceedings. The reasons for the privilege in civil proceedings are not necessarily the same as for the right to silence. Care is therefore taken to define the terminology and scope of the thesis. It sets out the modern law on the privilege in civil proceedings between private parties. It describes how the privilege causes particular problems in those proceedings. It surveys the literature, finding that most of it concerns the right to silence.
The thesis draws heavily on the history of the privilege. It argues that, although witness privilege came from the common law, the privilege in interlocutory civil proceedings had its origins in the discretionary remedies devised by the courts of equity. They were sensitive to abuse of their remedies. For the same reason, modern prosecutors should not be encouraged to rely excessively upon evidence acquired through compulsory powers.
Derivative use immunity is one of several substitutes suggested for the privilege. The thesis looks at the various substitutes. It concludes that derivative use immunity is the only satisfactory substitute for the privilege in civil proceedings.
Derivative use immunity originated in the United States. The thesis looks closely at the American experience. The history and scope of the Fifth Amendment are discussed in detail, particularly the supposed removal of its protection from documents. This will show that the removal of the privilege from documents is not as simple as law reform bodies in Australia and New Zealand suggest.
Exaggerated claims have been made by Australian prosecutors about the problems caused by derivative use immunity. The claims are examined in the light of American case-law. This shows that an impossible burden is not imposed on prosecutors. The same point emerges when the thesis examines the operation of derivative use immunity under Australian certification procedures since 1995.
Particular procedural and legislative difficulties need to be addressed, particularly when derivative use immunity replaces the privilege in interlocutory proceedings. However, certification by the court has an important advantage. The court's exercise of its discretion provides the flexibility which automatic statutory immunity lacks.
The question in the title is therefore answered in the affirmative. Derivative use immunity under a statutory certification procedure can provide the answer. Cooperation between the Commonwealth and States may be needed to overcome constitutional difficulties, but most other problems can be overcome if derivative use immunity is given a sound statutory basis.