common law. It has been a firmly established rule
of the common law, since the seventeenth century,
that no person can be compelled to incriminate
himself. A person may refuse to answer any
question, or to produce any document or thing, if to
do so 'may tend to bring him into the peril and
possibility of being convicted as a criminal': Lamb
v. Munster (1882) 10 Q.B.D. 110, at p.111. The mere
fact that the witness swears that he believes that
the answer will incriminate him is not sufficient;
'to entitle a party called as a witness to the
privilege of silence, the Court must see, from the
circumstances of the case and the nature of the
evidence which the witness is called to give, that
there is reasonable ground to apprehend danger to
the witness fo his being compelled to answer': Reg.
v. Boyes (1861) 1 B. & S. 311, at pp.329-330 [121
E.R. 730, at p.738]. That statement of the law has
frequently been approved; see Ex parte Reynolds; In
re Reynolds (1882) 20 Ch.D.294; Triplex Safety Glass
Co. v. Lancegaye Safety Glass (1934) Ltd [1939] 2
K.B. 395, at pp.403-404; In re Westinghouse Uranium
Contract [1978] A.C. 547, at pp.612, 627, 647. It
as clear that in England the Parliament may take
away the privilege and enact that a party may be
bound to accuse himself: Reg. v. Scott (1856)
Dears. & B. 47 at p.59 [169 E.R. 909, at p.914].
Whether the powers of the Commonwealth Parliament
under the Constitution are more restricted in this
respect is a matter to which I shall later refer.
Although the legislature may abrogate the privilege,
there is a presumption that it does not intend to
alter so important a principle of the common law.
In Kempley v. The King [1944] A.L.R. 249, at p.253,
Starke J. went so far as to say that 'where
authority is given to compel the examination of
persons, the ordinary rule of the common law which
protects a person from answering questions which
tend to criminate him applies unless expressly
excluded'. However, he went on to say that 'whether
the rule is excluded must depend upon the provisions
of the legislative act or the nature of the
subject', and this appears to recognize that an
intention to exclude the privilege may appear
although there are no express words of exclusion.
Although there are not wanting other statements to
the effect that the privilege will not be taken away
without express words (see, for instance, Crafter v.
Kelly [1941] S.A.S.R. 237, at pp.241-242 it is not
correct to say that if the legislature wishes to
render the privilege unavailable ti must in every
case do so expressly. The character and purpose of
the statute may indicate that it should not be
construed so as to preserve the privilege: see,