The police’s rights-friendly view of self-incrimination

It’s not just the Police Association who has been gripped by a human rights culture. The Police Minister is a convert too, arguing in public for a much more expansive view of the right against self-incrimination than has ever been accepted in Australian law.

Last year, SARC (who I advise) raised some concerns about a bill that required police officers in some circumstances to submit to drug and alcohol testing. SARC was concerned about a provision that provided that the results of such testing would be kept secret and also would be inadmissible in criminal proceedings. It cited the High Court case of Wakely & Bartling v R, which held that in some circumstances evidence about drug use by police officers can be relevant in trials for charges that those officers investigated.

The Police Minister, Bob Cameron, responded to SARC  by arguing that the testing was a welfare-based policy, that the results would typically be irrelevant in criminal trials and that there were at least some circumstances (notably where somone died) that the results could be adduced. Interestingly, the Minister concluded:

Making test results generally available would also risk the privilege of police officers against self-incrimination, a privilege that extends to all members of the community. 

That’s an interesting view, because the High Court of Australia has long held that the privilege against self-incrimination doesn’t extend to real evidence, even evidence inside your own body. It’s not you that’s incriminating you; it’s your body!

The Minister, obviously enthused by the internationalisation of Victorian law that is promoted by the Charter, has apparently come around to the view of the Supreme Court of Canada and the European Court of Human Rights that compelled gathering of bodily evidence can breach the privilege against self-incrimination in some circumstances

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