Senator ELLISON (Minister for Justice and Customs) (5:04 PM) —A number of matters have been raised by senators in the debate on these three Democrat amendments. The government opposes these amendments and does so for the following reasons. Firstly, in regard to the second amendment by the Democrats, headed `Limitations of examination order'— which provides, `No examination authorised in accordance with this act may be used for the purpose of obtaining information to advance a criminal prosecution'—the government would argue that, as matters already stand, it will not be possible to conduct the examination provisions for the purpose of advancing a prosecution. The examination is solely for the purpose of confiscation of proceeds of crime—and that alone.

So if you conduct an examination for any other reason then that is an inappropriate reason. It will only be possible to conduct these examinations for the purpose for which they are enacted, which is to advance confiscation action. I repeat that because, in light of that and the concern expressed earlier, the government agreed that there would be guidelines to deal with the DPP and how it went about these examinations. The guidelines make it quite clear that the DPP can only use the examination power for the purpose of obtaining information that is relevant to confiscation action under the Proceeds of Crime Act. The examination cannot be used to make general inquiries about the background or general activities of the person being examined. That is quite clear.

The examination will be under the control of an approved examiner who will be independent of the DPP, and the person who is being examined will be entitled to legal representation. The approved examiner and the person being examined will be given a copy of the DPP guidelines prior to examination. Where information that is derived from information obtained over the course of examination is relevant to a prosecution then it may be used—and this is right and proper. Otherwise a criminal could then make himself or herself conviction-proof by deliberately providing incriminating evidence over the course of the examination, thus tainting any subsequent prosecution. In short, the person brings in everything, including the kitchen sink, and puts it into the examination and the evidence. Thereby, if the immunity provisions were to apply, they would then render themselves conviction-proof, because all that evidence would be privileged and protected, and immune from being used in a prosecution against that person. That is the reason for that policy in this bill, and the government believes that the Democrat amendment is in any event dealt with by this bill.

Whilst I am on examiners, I might just touch on the question that Senator Harris mentioned. He said: `It's not good that only the minister appoints, and who would be an examiner?' Proposed section 183(4) of the bill provides for the appointment of examiners. It states:

In the regulations, we would envisage people such as members of the Administrative Appeals Tribunal of a certain rank with, say, five years experience. That five-year admission rule could relate to legal practitioners such as lawyers and former magistrates. There are a number of people whom you could use as an examiner, and there would be regulations to define the classes of people who could be used as an examiner. Also, 183(4)(b) states:

... ... ...

Of course, you would have that class and you would still have an ability for the minister to appoint an examiner. There are many occasions where ministers appoint: the Commissioner of the Federal Police is appointed by the Attorney-General; judges are appointed by the government. There are a number of people in high office or an office of trust who are appointed by the government, and the government would suggest that there is nothing untoward in that.

I think Senator Harris also asked why we do not have the examinations conducted by judicial officers. That is prohibited by chapter III of the Constitution. These approved examiners would be carrying out an administrative function and not a judicial function, and the Constitution is quite clear in that regard. That is the rationale for that. Those were the issues on the second amendment by the Democrats. The third amendment was the `Limitations of production order', which states:

Again, this amendment is similar to the second amendment. The government would say that this is unnecessary. The inclusion of this amendment would generate a large degree of uncertainty about its possible effect on any subsequent prosecution. That uncertainty would result, I am sure, in an action which perhaps the Democrats would rather not have happen—that is, if you had uncertainty in relation to production of orders then law enforcement would simply go to a search warrant, and the information could be gained in that way. This is, I would submit, undesirable, as an effective production order regime is beneficial to law enforcement officers and the recipient of the production order alike. It is less time consuming, costly and intrusive than search warrants.

In addition, the class of documents that can be obtained under a production order has been limited under the bill to documents held by a corporation or business. Under common law, those entities are not entitled to the privilege against selfincrimination. Conferring derivative use immunity upon those bodies would be to place them in a more privileged position than they occupy at common law. Again, the government would oppose Democrat amendment (3).

In relation to Democrat amendment (4) dealing with proposed section 198A headed `Immunity of certain answers', the government would again say that, by making certain types of information inadmissible in a criminal prosecution, proposed section 198A purports to clarify in the face of the legislation that an examination or production order cannot be used by the DPP to advance a criminal prosecution. As with related amendments, however, it is unclear how this proposed section would work in practice. I would point out that derivative use immunity has not been conferred in examination orders so that a person cannot deliberately provide incriminating information during an examination to make himself or herself conviction-proof—again on the same policy reason for this in the bill. What can happen is that a person can become conviction-proof, where they provide incriminating information under compulsion and where the use of both that material and material derived from that material in criminal proceedings is prohibited. That is where use and derivative use immunity are conferred.

The government opposes this amendment, proposed section 198A(2), and says that it would distort the trial process by putting an onus on the prosecution that may be impossible to discharge. If there have been examinations or production orders in a matter, the prosecution would have to show one of two things—either that none of the prosecution evidence was derived directly or indirectly from the examinations and production orders, which would be a formidable task, or that every examination order and every production order were validly issued and validly executed. At the end of a long and complex criminal investigation, it would be very difficult to determine where all the prosecution evidence was derived from. If you cannot show where all the prosecution evidence came from, it follows that you cannot show that none of it was derived directly or indirectly from an examination or the use of a production order. The effect of this amendment cannot be quarantined to information derived from an examination or production order, hence the problems that I mentioned. The practical effect of the proposed change would be to taint all prosecution evidence and make it easier for criminals to escape conviction.

What is relevant to the argument that I have been putting is Senator Harris's question in relation to proposed section 198, which deals with the admissibility of certain answers and documents. It states:

for the following provisions, and they are listed in paragraphs (a) through to (e). Paragraph (a) is fairly clear; it states:

Paragraphs (b) and (c) state:

Obviously if you made a confession or an admission that is self-incriminating and it relates to the proceedings at hand that would be relevant. Paragraph (d) states:

Where there is enforcement, obviously the information you have given which can lead to the enforcement of that order—because it is an order of the court—we believe it would be appropriate. Finally, paragraph (e) states:

The reason that exception is made is that you could have a contract produced in the course of an examination, there is some evidence given on the contract and, in the course of that examination, an admission is made by the respondent. While we are saying that, generally, answers given or documents produced are not admissible, what we do not want to see is a situation where someone might use a document that could perhaps be barred from being produced in civil proceedings when an innocent third party might be taking action against them but cannot use that document because it has been the subject of an admission during the examination. We want to be able to see the examination proceed, the questions asked on the document and the admission made. That is fine; that goes to the confiscation of criminal assets. But we still want to see that document allowed to be used in other proceedings such as civil proceedings, as stated there, because that document might confer a liability on the person who is being questioned. It might be a contract in which that person has agreed to pay an innocent third party some money and that third party wants to rely on that document to sue them. They are quite entitled to do so, and we do not want to see that document excluded from any extraneous proceedings.

I think that covers those exceptions. Senator Harris asked where else they are dealt with in the bill. They are dealt with under proposed section 198. They are the exceptions that were thought appropriate in relation to answers and documents in the course of an examination. I think what I just said covers the government's position in relation to the amendments proposed by the Democrats, the questions posed by Senator Harris and the government's rationale for this bill.