Federal Court (Full Court). Can it be said that "a process of reasoning that interferes with or undermines a fundamental common law right [such as the privilege against self-incrimination] may for that reason be characterised as legally unreasonable"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the privilege against self-incrimination not "merely a rule of evidence available in judicial proceedings, it is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question"?
Question 2: Is the privilege against self-incrimination "liable to abrogation only by unmistakeable statutory language"?
Question 3: May the privilege be "waived by the individual (and only the individual) including by responding to questioning or pleading guilty to a criminal charge"?
Question 4: Can it be said that "a process of reasoning that interferes with or undermines a fundamental common law right may for that reason be characterised as legally unreasonable"?
Question 5: Did the Tribunal derogate from or otherwise undermine the Appellant's right to claim the privilege against self-incrimination by identifying an earlier point in time at which the Appellant could have made the choice to waive the privilege by pleading guilty?
The FCAFC answered those questions as follows: