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Wednesday, 6 June 1984
Page: 2675


Senator GARETH EVANS (Attorney-General)(8.41) —Mercifully, this is the last section. The last group of amendments that I will move, beginning with amendment No. (34), are an endeavour to pick up and implement the Committee recommendations so far as the immunity of witnesses is concerned in circumstances where the Authority has decided that it badly wants their evidence and wants accordingly to be able to override a claim of privilege against self- incrimination. This is a situation that often recurs in practice with investigative and prosecutorial agencies, particularly in a context where small fry are involved and one wants to use the sprat, as it were, to catch the mackerel. The particular scheme that the original Bill envisaged was one whereby the Authority could recommend to the appropriate State or Commonwealth Attorney- General or Director of Public Prosecutions that, in return for the overriding of the claim of privilege against self-incrimination, the person in question would be immunised by government decision against the use against him in future of the evidence in question.

The Senate Committee basically adopted that scheme but sought to extend it slightly. It wanted to create a situation in which the privilege against self- incrimination, which applies in relation to personal oral testimony and the production of personal non-business documents, giving rise to a claim of privilege against self-incrimination, could be utilised and the claim of privilege overridden in circumstances where the Crown was prepared to grant an immunity not only in relation to the use against someone in any future proceedings of that particular evidence but also the use against that person of evidence which might be derived as a result of the leads given by that original evidence. This is the so-called derivative use immunity. It is not just the evidence itself that the person gives that cannot be used against him; it is any evidence that might be derived as a result of it. It is the fruit of the forbidden tree, as the Americans describe it. It is an extension which the Government has had some reservations about accepting. In some ways it limits further the capacity of the prosecution to garner admissible evidence which might be helpful in subsequent prosecutions. But, nonetheless, on balance the Government felt inclined to accept the Committee recommendations and we urge that the Committee do likewise. I move:

(34) Page 18, clause 25, sub-clause (5), line 29, after 'may be,' insert 'or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing,'.