Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs

The application of the privilege in investigations carried out under statutory powers must now be taken to depend upon legislative intention as derived from the statute, the privilege being held to apply unless the statute impliedly excludes it. The nature of the statutory power, the prescribed manner of its exercise and the purpose which its exercise is designed to achieve are the available, if uncertain, guides as to legislative intention in the absence of express provision.

The inability of an investigator conclusively to disallow a claim of privilege and the impairment (at least to some extent) of his ability to insist on a response to his investigation if the privilege is available are two factors that weigh in favour of excluding the privilege, though their weight is not always sufficient to exclude it. In this case the majority judgment points to the factors that tend to exclude the privilege. It would be repetitious to canvass them. I agree that the intention to be imputed to the legislature is that privilege against self-incrimination does not qualify the obligation imposed by s. 10(1) of the Securities Industry (Victoria) Code to comply with a requirement made under s. 8 or s. 9 of that Code. I agree also that the "reasonable excuse" for which s. 10(1) provides does not comprehend a claim of privilege against self-incrimination. Section 10(1) is to be distinguished from s. 10(4) of the Commissions of Inquiry Act 1950 Q. considered in Sorby , where "reasonable excuse" was so defined as to import the privilege.