Federal Court (Full Court). Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is an appeal to the Full Court "by way of rehearing, meaning that the appellant must demonstrate legal, factual or discretionary error by the primary judge"?
Question 2: May it constitute a denial of procedural fairness if a Tribunal's "questioning strays into matters about which the unrepresented party could invoke the privilege against self-incrimination without warning the person"?
Question 3: Is the privilege against self-incrimination a fundamental common law right?
Question 4: In determining whether the Tribunal should have warned the appellant about the privilege agains self-incrimination, must the court assess whether there is a “real and appreciable risk” of prosecution if the relevant information were disclosed?
Question 5: Is the question of whether the appellant was denied procedural fairness because he was not reminded of the privilege against self-incrimination the same as the question of whether what occurred was “material”? In other words, does the determination of whether the failure by the Tribunal to inform the appellant about the privilege against self-incrimination was material to the Tribunal’s decision "also determine whether there has been a denial of procedural fairness in relation to that decision and a jurisdictional error"?
Question 6: May it well be the case that "the failure of the Tribunal to inform an unrepresented party about their privilege against self-incrimination will only amount to a denial of procedural fairness (or a material denial of procedural fairness) if the person did not, in fact, have an adequate awareness or understanding of the privilege at the time when they were questioned"?
Question 7: Can it be said that, "even if a person has a general awareness that a privilege against self-incrimination exists under the law of Australia, it does not follow that they will necessarily call that general awareness to mind in context of a tribunal hearing, or appreciate that they are entitled to decline to answer questions about specific topics under oath"?
Question 8: Will it usually be incumbent on the judicial review applicant to "adduce evidence in judicial review proceedings sufficient to establish that he was not aware of his rights or the nature of the privilege against self-incrimination at the relevant point in time, or at least that he did not make an advertent decision to give evidence that might incriminate him with an appreciation that he was not required to do so"?
The FCAFC answered those questions as follows: