Mr SPENDER(11.49) —I move:

(4) Clause 18, pages 11 and 12, omit sub-clauses (4) to (8), substitute the following sub-clauses:

'(4) Subject to sub-sections (5) and (7), it is a reasonable excuse for the purposes of sub-section (2) for a person-

(a) to refuse or fail to answer a question put to him at a hearing before the Commission; or

(b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Commission,

that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate him.

(5) It is not a reasonable excuse for the purposes of sub-section (2) for a person-

(a) to refuse or fail to answer a question put to him at a hearing before the Commission; or

(b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Commission,

that the answer to the question or the production of the document or thing might tend to prove his guilt of an offence against a law of the Commonwealth or of a Territory if the Attorney-General has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, will not be used in evidence in any proceedings against him for an offence against a law of the Commonwealth or of a Territory and if the Attorney-General states in the undertaking-

(c) that, in his opinion, there are special grounds which in the public interest require that answers be given or documents or things be produced by that person; and

(d) the general nature of those grounds.

(6) The Commission may recommend to the Attorney-General that a person who has been or is to be served with a summons to appear as a witness at a hearing before the Commission or to produce a document or thing at a hearing before the Commission be given an undertaking by the Attorney-General in accordance with sub-section (5).

(7) It is not a reasonable excuse for the purposes of sub-section (2) for a person-

(a) to refuse of fail to answer a question put to him at a hearing before the Commission; or

(b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Commission,

that the answer to the question or the production of the document or thing might tend to prove his guilt of an offence against the law of a State if the Attorney-General of that State has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, will not be used in evidence in any proceedings against him for an offence against a law of that State and if the Attorney-General of that State states in the undertakinng-

(c) that, in his opinion, there are special ground which in the public interest require that answers be given or documents of things be produced by that person; and

(d) the general nature of those grounds.

(8) The Commission may recommend to the Attorney-General of a State that a person who has been or is to be served with a summons to appear as a witness at a hearing before the Commission or to produce a document or thing at a hearing before the commission be given an undertaking by the Attorney-General of that State in accordance with sub-section (7).

I move this amendment not with any great desire to depart from the Government. I support the thrust of the Government's legislation but I find clause 18 particularly troubling. In essence sub-clauses (4) to (8) of clause 18 provide that a person who is called before a Commission and is given an undertaking by the Attorney-General of the Commonwealth that his answers will not be used in evidence against him for a breach of Commonwealth or Territory law must answer. Furthermore, there is no protection at all accorded to that person when he is required to produce documents. This system is open to very wide abuse and it makes a fundamental break with the basic right of citizens of this country not to be compelled to give testimony against themselves.

Let me tell the Committee how such a system can operate. I was conducting on one occasion a special investigation into Gollin Holdings. I heard of a person who was leaving the country and who might be able to give me information. I sent a summons to him. I had him up in my chambers two hours later. I put a tape recorder on the desk in front of me. I gave him the Bible and told him to take the oath since I was empowered for that purpose. I then advised him that he was bound to answer any question that I put to him although, if he claimed privilege , the answer could not be used against him for any proceedings save for proceedings that could arise if he tried to mislead me. That is the sort of thing I am talking about. What would happen if we took away the right to object to the production of documents? This would mean that the Attorney-General's undertaking never extends to documents. Therefore, if a person is summoned to produce certain documents and those documents are incriminating, the documents, if produced, can be used against that person.

No court can force a person to go into the witness box to give evidence against himself. No policeman in this land can force a person to answer a question that may incriminate him. But what is being proposed is that the Attorney-General by an undertaking which extends only to oral evidence will place a person in a position where he has to answer and where he has no protection at all if he is summoned to produce documents. I would have thought that, if we were talking about basic rights, we would speak about the right to vote, the right to freedom of speech, the right to a fair trial and the right not to be forced to incriminate oneself. Recently a case was heard in the High Court of Australia which involved a Mr Hammond who had been questioned by a royal commission. That case was different because he had been charged. Let me remind the Committee that , if a person has any skill as an investigator, he simply defers having the charges brought until all the evidence is obtained.

Let me quote some passages from the judgment of the High Court because to my mind they illustrate-although, mark you, in the context of a case in which a man had been charged-the whole current judicial thinking about the right not to be compelled to incriminate oneself. Let me tell the Committee what the Chief Justice had to say. He most relevantly said:

It was said that the privilege is only against testimonial disclosure- disclosure that may be used in evidence-and that since, under both the Commonwealth and State Acts, the answers are not admissible in evidence there is no infringement of the privilege . . . Again, I am not satisfied that this is correct; I would incline to the view that the privilege is against the discloser of one's own criminality.

Why should that be? It is because hundreds of years ago we departed from an inquisitorial system, and that was the inquisitorial system that had existed up until the time of the Stuarts. Later, the Chief Justice said:

It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.

Mr Justice Mason agreed with him. Let me read only one other passage, because time is short and my voice appears to be wearing out. Mr Justice Brennan said this:

An accused person may not be deprived of this immunity from interrogation by the exercise of the prerogative power to appoint a Commission of Inquiry and Report. Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice.

What I propose is that the Attorney-General, in giving an undertaking, should give an undertaking that extends to documents, and the undertaking should state that there were special grounds for compulsion where a person claimed that the answers to questions or the production of documents might incriminate him, and that the Attorney-General should set out the general nature of those grounds. We are moving into entirely new territory. I have pointed out that this Commission will be able to do what the police cannot do. There is a very strong argument for the Commission, but there is a very strong argument for hastening slowly when we come to such a breach of fundamental rights. I see no reason why the Attorney-General should not have to act only when there are special grounds, and I can see no reason why the protection to be afforded should not extend to documents. We all know who will be the people that produce documents-the honest, the foolish and the incompetent. Does anyone here think that any master criminal will produce documents when summoned to do so? Of course he will not produce them. The people who will be caught will be the small people, those who are guilty of technical offences of one kind or another-certainly not the important people.

We are, as it were, taking a great leap in the dark. We do not know where it will end, but a leap in the dark it most certainly is. Let us hasten, as I say, slowly, and instead of moving so quickly let us see how it runs, and at the end of the year the Commissioner can come to us and say 'It is not working and these are the reasons'. Then we can re-examine it. But for the time being, let us ensure that those who are called before the Commission have adequate protection, protection which accords with the way in which the criminal law of this country has been administered since we became a country.