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Legislative Assembly for the ACT: 2003 Week 14 Hansard (9 December) . . Page.. 4997 ..

MR WOOD (continuing):

incrimination by the removal of derivative use immunity in clause 26 subclause (8) and the human rights implications of that modification.

Given that the bill is part of a national uniform scheme and that it is based on the provisions of the Commonwealth Australian Crime Commission Act 2002, the provisions that the committee has commented on reflect the agreed national position on these matters. There has been a full and lengthy response to that comprehensive report of the scrutiny of bills committee. I refer to the issue of legal professional privilege. The Commonwealth equivalent of clause 26 subclause (9) was included in National Crime Authority legislation to clarify legal professional privilege. Although the bill does not specify the extent to which a client, as opposed to a legal representative, may refuse to disclose information that has been the subject of confidential communication with his or her legal representative, it is the view of the government that clause 26 subclause (9) would achieve that end by invoking the common law and any relevant statutory law relating to legal professional privilege.

Clause 26 subclause (9) makes it clear that the defence in clause 26 subclause (4) does not affect the law relating to legal professional privilege. As the privilege resides in the client, it follows that the client may also claim legal professional privilege in respect of communications and documents to which privilege would attach and that a person could refuse to answer a question or produce a document under clause 26 subclause (3) by claiming legal professional privilege. Derivative use immunity was removed from the equivalent provision in the Commonwealth National Crime Authority legislation because it was found to have seriously abused and frustrated the work of the National Crime Authority, impeded investigations and undermined the effectiveness of the legislation. The authority's task in investigating organised crime was made difficult because of the way in which people under investigation manipulated existing legal rules and procedures.

The need to modify the privilege against self-incrimination by removing derivative use immunity goes back to the fundamental reason for the existence of the Australian Crime Commission and the existence of the National Crime Authority before it. It is part of the package of coercive powers that is available in relation to special operations and investigations. However, those powers are applied only in situations when ordinary methods of collection of criminal information and intelligence or the usual police methods of investigation are ineffective. Those powers relate only to serious and organised crime.

I refer next to human rights issues. Under proposed human rights legislation those rights will be subject to reasonable limitations in circumstances where it is regarded as a reasonable and proportionate measure to achieve a legitimate aim. It is the view of the government that the removal of derivative use immunity would be a reasonable limitation in light of the fact that the purpose of the bill is to combat serious and organised crime.

The government considers seriously any infringement or displacement of rights and looks closely at whether it is justified in the circumstances. I am satisfied, given the thorough consideration of this issue in the Commonwealth sphere, as set out in the government's response to the committee, that in the context of fighting that crime these measures are appropriate and essential.

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