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Legislative Assembly for the ACT: 1999 Week 1 Hansard (16 February) . . Page.. 123 ..

MR STANHOPE (continuing):

Everybody is probably aware of the reasons for the privilege against selfincrimination; the need to protect accused persons who are required by the process of law, for instance, to produce documents which tend to implicate that person in the commission of an offence. It has basically been such an entrenched principle of common law and the rights of the individual that I do not think that we in this place should toy with it lightly. I simply do not believe it is appropriate for us to allow provisions such as this that go to basic issues of human rights; to the basic protection which we, for hundreds of years, have afforded to accused persons - not to be obliged to prove their innocence. I do not think we should lightly discard or deal with those inherent principles of the common-law system of justice.

I do not believe that the removal of this provision from this Bill impacts at all adversely on the effectiveness of this legislation. As I said, the Labor Party believes this is good legislation. The Labor Party is happy to support this Bill. We believe there are very good reasons, based on 300 years of the application of common-law principles - principles endorsed by the High Court of Australia and principles now ensconced in the International Covenant on Civil and Political Rights. I believe that we ignore that history and that practice at our cost and at the cost of every person in this community.

I would urge all members to support this Bill, but I would suggest to each member that there is no good reason for including clause 87 in this Bill. There are so many good, solid reasons going to the rights of the accused, going to the common-law system which we have embraced, going to human rights and going to individual civil liberties, that require that this provision not be accepted by the Assembly. I think history, precedent, human rights and commonsense dictate that that is the approach we take.

MR KAINE (12.16): Mr Speaker, this question of the impact of clause 87 was raised by the scrutiny of Bills committee of which I am a member. It is not, however, an issue which I am prepared to die in a ditch over, but I would like the Government, perhaps the Attorney-General, to explain why it is good law. The Chief Minister's response to the scrutiny of Bills committee was that it is okay because it is long established within taxation administration law in the ACT. She went on to say it is also in Victorian legislation and South Australian legislation. But that of itself does not make it good law. Now that the matter has been raised by the scrutiny of Bills committee, I think it is incumbent upon the Government to explain why is it good law, and if it is not good law we should not adopt it. I am sure the Attorney-General will be able to explain to us why this particular clause represents good law.

MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (12.17): Someone has to explain to the Assembly why the Government has proposed clause 87 of this Bill and I am happy to attempt to do so. First of all, let me agree with the proposition Mr Kaine has just stated; that the fact that certain provisions have appeared in our law, maybe for some lengthy period, maybe replicating provisions in other jurisdictions, if they have good reason to assume that those provisions should stay there, may not, in themselves, make them bad law. That is quite true. Sometimes practices have grown up in a different era, or because of inadvertence, or because members of an Assembly were not vigilant enough to spot them as they were being passed through the parliament, and those practices may not be good law and should be removed if that is the case.

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