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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Thursday, 12 February 2004) . . Page.. 332 ..

The one concern I had was with chapter 3 of the bill, clause 47, which deals with alternative verdicts for failure to comply with safety duties. My concern was that this could lead to a defendant, upon the realisation that he was going to be found not guilty of a more serious offence, being sprung with a lesser charge and not afforded the opportunity to defend himself or herself from the reduced charge. I have, however, been advised by the department that this will not result in any impingement on the defendant’s rights to procedural fairness. I accept that and am happy to support this provision.

I am also fully supportive of the establishment of a licensing system for those who handle dangerous substances. This will ensure that it is easier to both regulate the use of dangerous substances and discipline those who breach their duties and the legislation. Licensing is, in my mind, the best way to control an industry and is the best mechanism to ensure safety is complied with within that industry.

With regard to chapter 6 and compliance measures, the primary concern in debate seemed to be over clause 92 of the bill and privileges against self-incrimination. The argument against the inclusion of this clause has been that it is in direct opposition to provisions in the Legislation Act and common law privileges that allow anybody to withhold evidence and not answer questions if the evidence or answers to these questions will be self-incriminating. The bill removes these common law privileges against self-incrimination by ensuring that any person before the chief executive, under clause 88, is required to answer questions and provide documents if requested to do so, even if these answers or documents are self-incriminating.

This is a serious eradication of rights and one which I delved deeply into. However, the fact that all evidence obtained, directly or indirectly, through these proceedings is not admissible in any criminal proceedings is justification enough, in my mind, for this clause to stay. It is my understanding that any self-incriminating evidence cannot be used in criminal proceedings, but is extremely important in ensuring public safety. It is certainly in the public interest to ensure the general safety of people within our community and that they are not placed at risk of harm, or even death. If this involves the need for an individual to provide self-incriminating evidence, then I am prepared to accept that. Whilst I recognise the contentious nature of this clause, I will be voting to ensure it remains in the bill. I am thus foreshadowing amendments opposing Democrat amendments 1 to 3, because of the benefits the clause provides, for reasons of public safety and the fact that I am convinced this will not lead to self-incriminating evidence presented to the chief executive being used in criminal proceedings.

I believe the use of compliance agreements, prohibition notices, improvement notices and mechanisms to ensure compliance and remedy non-compliance will be beneficial to all parties. Compliance agreements and improvement notices are issued if an inspector believes, on reasonable grounds, that a provision of the act has been, is being, or may be contravened in relation to a dangerous substance.

Prohibition notices go further—the need to prove that the issue of a prohibition notice is necessary to prevent or minimise risk of harm to the health or safety of people; that the issue of a prohibition is necessary to allow for the inspection, testing or monitoring of anything on a given site, or that the issuance of a prohibition notice is necessary to allow for the investigation of an accident or another incident.

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