Abstract:
This thesis examines to what extent the privilege against self-incrimination should apply in investigations conducted by state agencies (other than police) pursuant to statutory powers of investigation for regulatory purposes. It does so by first considering the historical basis for the privilege, and whether the purpose behind the privilege is still relevant today. Concluding that the rationales behind the privilege justify the privilege’s continuing application in a general sense, the thesis then considers how the privilege against selfincrimination applies to investigations beyond the purely criminal context. In New Zealand there is a current inconsistency across statute books as to whether the privilege can be asserted in investigations conducted by state agencies with statutory powers of investigation and enforcement. Parliament has preserved the privilege in some cases, while abrogating it in others. International jurisdictions have also struggled to apply the privilege to such investigations, creating further inconsistencies in approach. Having acknowledged the inconsistency, this thesis then examines whether the privilege ought to apply to statutory investigations, and if so, to what extent? It concludes that the importance of regulatory compliance is such that to have the privilege apply to its fullest extent would unduly hamper investigations, and therefore a limit on the privilege is justified. However, to remove the privilege entirely is unnecessary when the same objective of ensuring agencies can effectively investigate matters could be achieved by protecting any self-incriminating testimony obtained from being used against the person in a criminal trial. The thesis then examines whether derivative evidence ought to also attract immunity from use in a criminal trial, and concludes it should not. Finally, in order to achieve legislative consistency, a proposal for reform is offered. That is, that when being investigated by a state agency, it is proposed that a person must disclose all information requested even where that information is self-incriminating. However the person cannot have the self-incriminating testimonial evidence used against them in a criminal trial. The courts should also be granted with an overall discretion to rule inadmissible any evidence obtained under compulsion if it would be in the interests of justice to do so.