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Legislative Assembly for the ACT: 2003 Week 14 Hansard (9 December) . . Page.. 4994 ..

MS TUCKER (continuing):

made out for limiting the period of office of board members? Can territory matters be referred to the commission for investigation? I am not clear on those points. The former NCA had the capacity to deal with matters that were referred to it by state, territory and Commonwealth governments. The intergovernmental committee mediated those requests.

The scrutiny of bills committee report went into some detail on the principle of protection against self-incrimination and the question of legal professional privilege. In a briefing the government made the point that legal professional privilege was also available to the client and that it would take more than a failure to list the client to remove such a privilege. However, when we create a list and leave out one category it could be interpreted as a deliberate intention. It is not a big amendment to include the word "client"in the explanatory statement to clear up this matter. However, the question of protection against self-incrimination is more complex.

The former National Crime Authority retained the privilege against self-incrimination but later Commonwealth amendments removed that privilege. So far as I am able to ascertain, the ACT government did not make those same amendments to this bill. As we are yet to consider those changes, the committee's comments should be taken into account. I refer next to the principle of privilege against self-incrimination. As I said earlier, when the NCA was established it retained the privilege against self-incrimination. That principle is an important safeguard against the forced and possibly false confessions that we abhor.

The power balance in a police or commission investigation could easily terrify a person suspected of committing an offence. It could so befuddle that person that he or she could say inaccurate or incorrect things or admit to things that he or she did not do. We place restrictions on how those investigations are conducted or designed in order to afford people some protection. What do we do to democracy and to society when we allow coercion to outweigh fairness? In a recent lecture, Lord Steyne, Lord of Appeal in Ordinary in the United Kingdom, quoted the president of the Israeli Supreme Court, Mr Barak, reflecting on a case over which Mr Barak had presided. The court held that the violent interrogation of a suspected terrorist was not lawful even if doing so might save human life by preventing impending terrorist acts. Barak quoted from an essay that he wrote relating to the case in the following terms:

We are aware that this decision does not make it easier to deal with the reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and allow it to overcome its difficulties.

Lord Steyne said "such restraint is at the very core of democratic values". Although those comments related to terrorism they are relevant today as we are considering

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