The world, including the workplace, operates best when we all
cooperate in a proper exchange of information for lawful
The criminal law principle that an individual cannot be
compelled to testify at their own trial or to confess their guilt
(i.e. their right to silence) privileges them from having to say
anything during an investigation or a trial. Silence cannot be held
against an individual to establish guilt.
So, do employees have the same right to refuse to answer
questions in a workplace investigation? Perhaps the subject matter
of the investigation will be important?
On 30 August 2013 Justice Adamson in Baff v NSW Commissioner
of Police upheld the privilege against self incrimination for
Constable Baff allowing him to refuse to answer questions by the
Police Commissioner arising from a shooting incident in May
Although Constable Baff is a police officer and, the incident
was a shooting, the principle that an employee who is suspected of
a crime in the workplace could maintain his/her right to silence in
any workplace investigation arising from that incident or
allegation remains the same.
However, an employee's silence does not prevent an employer
from conducting its own investigation and making findings. An
employer may then determine what action is to be taken based on the
material obtained during that investigation. The action taken by an
employer following an investigation may be adverse to the employee
even if he/she has remained silent during the investigation.
Of course, any workplace investigation must be fair and thorough
and be conducted objectively by a person with the proper skills to
undertake the investigation.
Constable Baff was a police officer undertaking duties in May 2011
when his gun discharged injuring a woman (the incident).
Constable Baff refused to answer questions about the incident
and claimed the protection of the common law privilege against self
The Commissioner directed Constable Baff on a number of
occasions to take part in a non-criminal workplace investigation
interview and contended that the privilege against self
incrimination had been abrogated by necessary implication of
Section 201 of the Police Act 1990. The Act provides that a police
officer who neglects, or refuses to obey a lawful order, or to
carry out any lawful duty is guilty of an offence under clause 8 of
the Police Regulations 2008.
Constable Baff still refused to answer questions and relied on
his privilege against self incrimination.
Constable Baff was issued with a directive to participate in a
non-criminal investigation. Which noted that his failure to answer
questions was a breach of the NSW Police Force Code of Conduct, and
as a result he may be sanctioned for not answering questions.
Constable Baff notified the police that he would not participate
in an interview if he was asked about the incident.
The question was whether a statutory obligation overrode his
common law rights. More specifically, as a result of the combined
effect of Section 201 of the Act and clause 8 of the Regulations -
had Constable Baff's common law privilege against self
incrimination been abrogated, obliging him to answer the questions
in relation to the incident?
Did Constable Baff irrevocably relinquish his privilege against
self-incrimination by taking an affirmation of office as a police
officer or signing an undertaking to abide by the Code of
Justice Adamson held that the privilege against self
incrimination was available to Constable Baff as he was suspected
of, but had not been charged with, a criminal offence, therefore he
cannot be compelled to answer questions which may incriminate. His
Honour held [at 112]:
"I discern neither in the Act nor the Regulations any
indication that Parliament has directed its attention to the
privilege against self incrimination, much less consciously decided
on its curtailment or abrogation. Nor, in my view, does the need
for a disciplinary and hierarchical police force of itself
necessarily require the abrogation of the privilege...
It was held that the Police Commissioner was not entitled to
take any action against Constable Baff for his refusal to answer
questions about the incident, since his refusal amounts to an
exercise of a right which had not been abrogated.
Any order or direction requiring him to answer such questions
would not be a lawful order, nor is the Police Commissioner
entitled to draw inferences adverse to Constable Baff by reason of
his exercise of the privilege. His Honour held that neither the
classification of the interview, or the views of the Commissioner
or the DPP, as to whether there was sufficient evidence to warrant
prosecution affects the fact that Constable Baff remained, exposed
to the risk of criminal prosecution.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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