Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of Senator Robert Ray, I present the eighth report of 2007 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 8 of 2007, dated 8 August 2007.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I seek leave to incorporate Senator Ray’s remarks in Hansard.

Leave granted.

Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The speech read as follows—

In tabling the Committee’s Alert Digest No. 8 of 2007 I would like to draw the Senate’s attention to three bills that include provisions which would abrogate the privilege against self-incrimination.

At common law, people can decline to answer questions on the grounds that their replies might tend to incriminate them.  Legislation that interferes with this common law privilege trespasses on personal rights and liberties.

The Committee does not see this privilege as absolute, however, recognising that the public benefit in obtaining information may outweigh the harm to civil rights.  One of the factors the Committee considers is the subsequent use that may be made of any incriminating disclosures.

Where a provision limits the circumstances in which information so provided is admissible in evidence in proceedings against the affected person, the Committee may accept that it strikes a reasonable balance between the competing interests of obtaining information and protecting individuals’ rights.

In Alert Digest No.8, the Committee has commented on provisions in the following bills that may be considered to abrogate the privilege against self incrimination.

The Migration Amendment (Sponsorship Obligations) Bill 2007, would insert proposed new subsection 140ZJ(8) of the Migration Act 1958, which would abrogate the privilege against self-incrimination for a person required to answer a question or produce a document under new subsections 140ZJ(2) and (4) of the Act.  The Bill, however, includes a provision that limits the use of any information provided, or derived from the information provided, in criminal proceedings against the individual.  As such, the Committee was prepared to accept that these provisions strike a reasonable balance between the competing interests of obtaining information and protecting individuals’ rights.

The Financial Sector Legislation Amendment (Discretionary Mutual Funds and Direct Offshore Foreign Insurers) Bill 2007 and the Financial Sector Legislation Amendment (Simplifying Regulation and Review) Bill 2007 both include provisions that would abrogate the privilege against self incrimination.  In each bill the respective provisions go on to limit the circumstances in which the information provided is admissible in evidence in proceedings against the affected person.  However, that limitation applies only to the information directly supplied by the person and not to information gained indirectly as a result of the statement or document so provided.

The explanatory memoranda accompanying the bills provide no explanation as to why the provisions only permit a ‘use immunity’ and not a ‘derivative use immunity’ in respect to the information and/or documentation provided.  The Committee has sought advice from the Treasurer in respect of each of these provisions.  Pending the receipt of this advice, I draw Senators’ attention to these bills.

Question agreed to.