In Environment Protection Authority v Caltex Refining Co Pty Ltd the High Court held that the common law privilege against self-incrimination is not available to corporations. The case is significant because it had previously been assumed that corporations were entitled to rely on the privilege. ¹⁾

Caltex challenged notices issued by the State Pollution Control Commission requiring it to produce documents for use in criminal proceedings concerning an alleged breach of Caltex’ water pollution permit under the Clean Waters Act (‘the Act’). Caltex argued that it did not have to comply with the notices as it was entitled to rely on the privilege against self-incrimination. It also argued that the Commission was not entitled to issue a notice under the Act for the sole purpose of use in a criminal proceeding so the notice was issued for an improper purpose.

In the Land and Environment Court, Justice Stein held that Caltex was required to comply with the notices but he submitted a number of questions of law to the Court of Criminal Appeal regarding the validity of the notice issued under the Act and the availability of the privilege against self-incrimination to corporations. The Court of Criminal Appeal held that the privilege was available to corporations but found that the privilege was excluded by necessary implication by the Act. However, it held that Caltex was not required to comply with the notice because it had been issued for an improper purpose because it held that the purpose of the power to issue notices under the Act was to empower the authority to investigate on-going activities, not to assist it in gathering evidence of a breach that had occurred some time earlier.

A majority of the High Court held that the Caltex was not entitled to rely on the privilege against-self incrimination and that the notice was validly issued under the Act. ²⁾ The majority found that that the privilege was aimed at protecting individual rights and freedoms, and therefore had no application to corporate entities. It also reasoned that the state-individual balance would be weighted too greatly in favour of corporations were the privilege extended to them because of the financial resources of companies and the difficulty in gathering evidence to prosecute white collar crime. The majority also overturned the Court of Criminal Appeal’s conclusion regarding the validity of the notice reasoning that the Court decision on this point had been influenced by its finding in relation to the privilege.

• The full High Court decision can be found on Austlii

• For analysis, see Jan McDonald ‘’No Body to Kicked or Soul to be Damned’: ‘Corporate Claims to the Privilege Against Self-Incrimination’ Bond Law Review (1993) 5(2) 179-190