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Legal analysis on removal of right to silence from
Michael Hammond: Lawyer specialising in OHS

8 May 2011

Dear Sir/Madam,

Some time ago I raised serious concerns about the unjustified proposal in the Federal OHS Model laws---"Model Work Health and Safety Act" (the Model Act)---to remove an individual's right to silence and privilege against self incrimination in those States and Territories where the right and/or the privilege are currently honoured.

The privilege against self incrimination for individuals is currently honoured by all State and Territory OHS laws other than Western Australia. I am not talking here about corporations. Corporations in this country have not enjoyed the right or the privilege for several years. I am talking about an individual's right to silence and an individual's privilege against self incrimination. I am the first to support "harmonisation" of OHS law in this country, but to do so at the expense of fundamental democratic rights without proper debate and justification is disgraceful, if not unconstitutional.

The SA Labor government recently became the first of the States or Territories to introduce the Model laws as the Work Health and Safety Bill 2011 (SA WHS Bill). The NSW Coalition government has also now introduced its OHS Model laws as the Work Health and Safety Bill 2011 (NSW WHS Bill).

I was appalled to see that not only have both governments chosen to remove the right to silence and the privilege against self incrimination in their respective Bills, but they have arrogantly attempted to justify their position in less than four lines in the Minister's second reading speech. It is anathema to our concept of the rule of law for any government to attempt to limit or remove the fundamental democratic rights of individuals, such as the right to silence and the privilege against self incrimination, without proper debate and justification.

The justification for the removal of both the right to silence and the privilege against self-incrimination extended in the Second Reading speech to the Bill in SA, is that the "... right to silence is clearly capable of limiting the information that may be available to inspectors or the regulator, which may compromise inspectors' or the regulator's ability to ensure ongoing work health and safety protections. Securing ongoing compliance with the Act and ensuring work health and safety are sufficiently important objectives as to justify some limitation of the right to silence" (my emphasis). This is not a proposal to limit the right to silence or the privilege against self incrimination. This is a proposal to remove it! Either first hand or on the TV police shows, we have all heard the first line of the police arrest caution---"You have the right to remain silent ..." (At the time of writing, the NSW WHS Bill had not had its Second Reading.)

The Model Act and now the SA and NSW WHS Bills, if passed, will remove an individual's right to silence and his or her privilege against self incrimination in the context of a criminal investigation into OHS offences. And there has been not one slither of real evidence to suggest that such a draconian measure is warranted! Those who wish to debate this will no doubt claim that they don't have to justify the "obvious". Even if they are correct and it is obvious, a claim which I reject, when the result is the removal of such fundamental rights, then I maintain that such a result must be justified with real evidence.

The Model Act and the two WHS Bills introduced by SA and NSW each have what lawyers call a "use immunity" provision. Theoretically the "use immunity" provision means that any evidence provided by an individual under these provisions cannot be used in evidence except as evidence in a specific proceeding about the truth of that evidence. But in the real world this actually means---"Its ok, give us the evidence but we won't use it against you. Of course, once you have told us what we want to know, we will go and get the same evidence from elsewhere and then we will use that against you. But trust me, I won't use what you tell us against you". Is anyone seriously suggesting that this is any real protection? If they are, they live in a very different world from me. And still no debate or justification that such provisions are necessary.

The purpose of OHS inspectors and regulators (in case their titles don't give it away) is to regulate and enforce OHS law. That is, at their discretion, they interpret, investigate and prosecute the criminal offences under the OHS laws. The objective of OHS laws may be, amongst other things, to "... ensure work health and safety ..." but that is not the primary purpose of the regulators and inspectors. Their purpose is to secure "... ongoing compliance with the Act ..." They are the OHS law enforcers---the OHS police. And let's not forget that, unlike our police, who importantly enforce the law with individual discretion, under these proposals, workplace safety inspectors can be directed to do things by the regulator, an arm of executive government.

The assumption underlying the quotation above from the SA Bill Second Reading speech is that if OHS law is good law and inspectors and the regulators are doing their respective jobs well (whatever that may mean), workplaces will be more safe than if they did not exist. Of course, this assumption in turn rests on a further assumption, that is, that the criminal law and its enforcement is the best deterrent to ensure good OHS practice. No-one has provided any real evidence that either of these two assumptions is correct.

Many of the offences in the Bill are indictable criminal offences. Where is the evidence to justify the removal of fundamental rights and the concomitant increase in the coercive powers of inspectors? Where is the research that shows that in the one State in which the these rights have been removed or even in the States and Territories where it has been limited, are worksite safer for workers because of it?

Is this the type of 'democracy' that the Middle East is currently pulling itself apart over?

The right to silence and the privilege against self incrimination are two of the hallmarks of a democratic society and of the rule of law. Yes, there are situations where these civil rights are necessarily and justifiably limited or removed, but not once has there been any real evidence offered or even attempted to be offered to justify the necessity of such a draconian measure in the Model Act context. It seems that for the sake of "harmonisation" we are willing to not only throw away these hard-won and centuries-old rights, but our SA State politicians are willing to throw them away without any proper evidence or justification.

Will we allow our Federal and State politicians to do the same?

[ICA note: Since this was written, SA has withdrawn its OHS Bill. There is no explanation as to why.]

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