Criminal, Traffic & Corporate Regulatory
Over the past several decades government-sanctioned inquisitions have become a commonplace feature of the Australian legal landscape. Conducted by investigative bodies like the Queensland Crime and Corruption Commission, the Australian Criminal Investigation Commission, and a host of other commissions of inquiry around the country, their essential purpose is to gather criminal intelligence.
The key feature that distinguishes the investigative powers of such commissions from those of traditional police forces is their power to compel someone to answer their questions.
Whilst, generally speaking, we all have a right to silence, that right is not absolute and can be removed by legislation, which is invariably the case with our wide-ranging commissions of inquiry.
The Crime and Corruption Commission, or CCC, has broad powers to investigate crime, just like the police and various other investigative bodies. However, the CCC can also convene what are called ‘investigative hearings,’ and can serve a notice requiring a person to appear and give evidence before such a hearing.
Whilst we all have a right to silence outside that hearing, that right has been expressly removed by law for any question put in the context of a CCC hearing. That means, while you don’t have to answer questions or provide information to the CCC generally, once you’re in a CCC hearing, you have to answer all questions put to you.
This leads to a number of important considerations. Firstly, in a CCC hearing, whilst you’re required to answer questions, none of your answers can be used against you, provided you have claimed self-incrimination privilege before answering them. It is therefore vital that the potential for self-incrimination be fully considered in advance of the hearing, and the privilege carefully claimed and established where required.
Sometimes, when people are approached by CCC investigators asking them questions, they are told they should answer voluntarily because if they do not answer they can be summonsed to appear at a CCC hearing, and required to answer the questions there. Whilst that is true, it ignores the fact that whilst one has no protection for anything said outside the hearing, they can claim self-incrimination privilege inside the hearing, and thereby be totally protected from incriminating themselves. So often it will be better to be summonsed, and give whatever information is sought within the protected confines of the hearing room, rather than provide a statement in advance.
Likewise, the fact you have answered questions inside the hearing room, doesn’t require you to subsequently give the CCC any statement repeating or confirming those answers outside the hearing room. Of course you may if you want to, but the protection afforded to your evidence in the hearing room, doesn’t extend to any statement you may subsequently give outside the hearing.
The ACIC is a national law enforcement agency responsible for the gathering of high level criminal intelligence. It has specialist investigatory powers and capabilities to investigate federally relevant crime such as international drug importation, cross border drug supply, terrorism and organised criminal activities.
Any person who is summonsed to appear before an ACIC hearing must answer the summons. You have a right to be legally represented at any such hearing, but you must answer all proper questions asked of you. Refusing to answer questions, or giving deliberately inaccurate or dishonest answers, is a serious criminal offence. If you lie or refuse to answer the Commission’s questions it is highly likely you will face criminal prosecution and an actual jail term.
As with the CCC and other commissions of inquiry, at an ACIC hearing you have a right to claim privilege against self-incrimination. This means that, provided you have claimed self-incrimination privilege before answering a question, the ACIC cannot use your answer to charge you with any criminal offence.
The ACIC is, first and foremost, an investigative body designed to elicit information for intelligence gathering purposes, unlike the police force for example, whose job it is to enforce existing laws and charge offenders who have violated the law. However, the ACIC can use evidence of your testimony in civil applications for the forfeiture and restraint of assets considered to be derived from the proceeds of criminal activity.
ACIC investigations are conducted in secret, and it is a serious criminal offence to disclose that you have been summonsed to appear at an ACIC hearing, or to talk to anyone except your lawyer about the fact that you have attended an ACIC enquiry. Breaches of these rules often result in criminal charges and terms of actual imprisonment.
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