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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Thursday, 4 March 2004) . . Page.. 784 ..

I am opposing clause 92 but seeking to amend clause 88. The Legislation Act has already determined that the right to not self-incriminate is something we should have in ACT law and not something that we should throw away. Even with an issue such as dangerous substances, I do not think we are warranted in throwing away such a fundamental common law principle as the right to not self-incriminate.

MS GALLAGHER (Minister for Education, Youth and Family Services, Minister for Women and Minister for Industrial Relations) (5.13): The government will be opposing both these amendments as they are consequential on another of Ms Dundas’s amendments to delete clause 92 from the bill. The government will be opposing this amendment as well. The government agrees, however, that a note referring to the provisions of the Legislation Act about legal professional privilege should be included in the bill. I foreshadow a government amendment to insert a note to this effect after clause 92.

The Democrats’ first amendment to insert note 1 into clause 88, which refers to the privilege against self-incrimination and to client legal privilege, is contingent upon their third amendment to remove clause 92, which refers to privileges against self-incrimination under part 6.1. The two most common privileges that can be relied upon to justify refusing to provide information are the privilege against self-incrimination and client legal privilege.

Under the privilege against self-incrimination, a person is entitled to remain silent and not provide any information that may assist in the investigation against them. Client legal privilege allows a person to refuse to provide information of a legal or sensitive nature about a client. The most obvious example is that a lawyer cannot be made to provide evidence against a client. Presently the note in clause 88 draws attention only to the provisions of the Legislation Act 2001 concerning how a notice may be served. Government amendment No 8 adds a note to clause 92 that will direct attention to the operation of client legal privilege.

A note about the effect of the privilege against self-incrimination is not included because clause 92 expressly displaces this privilege, meaning that it cannot be relied upon under part 6.1. Clause 88 enables the chief executive to require a person to attend to answer questions or produce documents. To do so, the chief executive must believe on reasonable grounds that a person may have contravened or may be contravening the act and issue a written notice to the person stating a reasonable time and place to attend.

Clause 92 displaces the privilege against self-incrimination. The effect of this displacement is that a person must answer or must produce a document and cannot refuse to do so on the basis that it could be self-incriminating. Clause 92 ensures that the chief executive will obtain the information or documents required and will not be frustrated by silence. It would be against established principles of common law and human rights if a person was compelled to provide information of a self-incriminating nature and that information was later used against the person in a criminal proceeding. In criminal law a person is entitled to remain silent and not provide any information that may assist an investigation against them. This is the privilege against self-incrimination. However, should a person choose to break their silence, anything said can be used to further investigations and ultimately be used against the person in a criminal proceeding.

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