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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Thursday, 4 March 2004) . . Page.. 785 ..

In regulatory schemes, even where legislation carries criminal penalties, the ultimate objective of investigations is not the imposition of criminal penalties. A key objective of regulatory schemes is the protection of the community. There will be situations where silence could thwart this objective and expose the community to the risk of harm. For example, evidence may come to hand that someone has been illegally supplied with a dangerous substance that puts the community at risk. A person who has knowledge of this can be asked to give information on this dangerous situation without risk of self-incrimination.

Clause 92 displaces the privilege against self-incrimination and establishes a reverse operation. A person cannot refuse to provide information on the basis that it is self-incriminatory, but, if the information is incriminating, it cannot be used to further an investigation or against the person in a criminal or civil proceedings. In this way, the fundamental principles of the criminal law and basic human rights are maintained.

If the Democrats’ third proposed amendment were to be successful, self-incrimination would then apply to part 6.1. A note concerning the operation of privilege, like that proposed by the Democrats’ first amendment, would be both appropriate and necessary. Conversely, if the third amendment were not successful, the first amendment must also fail. Should the Democrats’ first amendment pass and not the third, the provisions of part 6.2 will be inconsistent and fundamentally flawed. The result would be that clause 92 would displace the operation of privilege against self-incrimination, while a note in clause 88 will advise that the privilege does apply. Such a situation will expose any use of part 6.1 to legal challenges, rendering provisions 88 to 92 useless. For these reasons, the government opposes these amendments.

MR PRATT (5.17): We will support Ms Dundas’s amendments.

MS TUCKER (5.18): We are supporting the amendments, although listening to Ms Gallagher I am a bit concerned. As we understood it, this amendment is the first that tones down some of the rather surprising levels of compulsion that the bill resorts to, where the chief executive or someone designated by them, I presume, can require people to attend meetings, produce papers and answer questions. This amendment introduces a note which highlights the fact that a person so compelled would be aware that they can claim the benefit of client legal privilege and that what they say cannot be used to more generally incriminate themselves. If, as is argued, these powers of compulsion are necessary, then it is important to safeguard the rights of such a person so that the powers don’t extend beyond the purposes of the act and it is consistent with comments made by the Scrutiny of Bills Committee.

Amendments negatived.

Clause 88 agreed to.

Clauses 89 to 91, by leave, taken together and agreed to.

Clause 92.

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