Craig v South Australia

The High Court of Australia considered an appeal by the applicant, Craig, against the respondent, the State of South Australia. The dispute concerned the validity of a notice issued by the respondent under section 293(1) of the *Criminal Law Consolidation Act 1935* (SA) requiring the applicant to attend a police interview. The applicant sought a declaration that the notice was invalid and that he was not required to attend the interview.

The central legal issue before the High Court was whether the notice issued under section 293(1) of the *Criminal Law Consolidation Act 1935* (SA) was a valid exercise of power, specifically whether it constituted an unlawful fetter on the applicant's right to remain silent and his right to legal advice. The Court had to determine if the statutory power to require attendance for interview could be exercised in a manner that compelled an individual to disclose information that might incriminate them, without adequate safeguards.

The High Court held that the notice was invalid. Brennan, Deane, Toohey, Gaudron and McHugh JJ reasoned that the common law right to silence and the right to legal advice are fundamental. They found that section 293(1) of the *Criminal Law Consolidation Act 1935* (SA), as applied by the notice, purported to compel the applicant to answer questions that might incriminate him, thereby infringing these fundamental common law rights. The Court concluded that such an infringement could only be justified by clear and unambiguous statutory language, which was absent in this instance. The statutory power to require attendance for interview did not extend to compelling an individual to answer questions that might incriminate them, nor did it override the right to seek legal advice before doing so.

The High Court ordered that the appeal be allowed and that the declaration sought by the applicant be made.