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Thursday, 9 March 1972
Page: 643


Senator MURPHY (New South WalesLeader of the Opposition) - I now refer to clause 57 which reads:

57.   - (1.) Subject to this Act and to any other law in force in the Territory, a person is not bound to answer a question or interrogatory in a proceeding if the answer to the question or interrogatory would incriminate, or would tend to incriminate, the person or his spouse or would lend to expose the person or his spouse to proceedings for an offence against a law in force in the Territory or in any other part of Australia. (2.) Where, in a proceeding, a person called as a witness or required to answer an interrogatory declines to answer a question or interrogatory under the last preceding sub-section, the court may, if it is satisfied that, in the interests of justice, the person should be compelled to answer the question or interrogatory, inform the person -

(a)   that, if he answers the question or interrogatory and all other questions or interrogatories that may be put to him, the court will give him a certificate under this section; and

(b)   of the effect of the certificate. (3.) Where, in relation to a proceeding, a person has been informed by the court of the matters referred to in paragraphs (a) and (b) of the last preceding sub-section, that person is not thereafter entitled to refuse to answer a question or interrogatory put to him in that proceeding. (4.) Where, after being informed by the court of the matters referred to in paragraphs (a) and (b) of sub-section (2.) of this section, a person answers all questions and interrogatories put to him in the proceeding, the court shall give to the person a certificate that his evidence in the proceeding was given under this section. (5.) Where a person is given a certificate under this section, a statement made by the person in answer to a question or interrogatory put to him in the proceeding in which that certificate was given to him is not admissible in evidence against the person in criminal proceedings in the Territory or in any other part of Australia, other than proceedings for an offence arising out of falsity of the statement.

I move:

Leave out sub-clauses (2.), (3.), (4.) and (5.).

The Opposition has some observations to make in relation to this clause. First of all, sub-clause (1.) would seem to give the general kind of protection to persons against questions which would tend to incriminate a person or his spouse. I do not think there is any departure from the general law here and we do not quarrel with this provision, unless something emerges which is not apparent at the moment. The remainder of the clause provides in substance for a procedure whereby a person may be forced to answer questions notwithstanding that his answers may incriminate him. There is a provision which requires that the person be informed that if he answers the questions that may be put to him or an interrogatory - I will include interrogatory in the, term 'question' - the court will give him a certificate under this section. If he is told of the effect of the certificate he is not entitled to refuse to answer questions. If after being so informed he answers all questions put to him, the court shall give him a certificate under the section. That raises certain problems. I suppose the first problem relates to what answering is. It may well be that a person may assume that he will get a certificate but in the end does not get it. In some cases that practice may be justifiable but it is a pretty chancey sort of immunity which is given to the person. It is a very conditional kind of immunity that is given to him - that if he satisfies someone that he has answered all the questions put to him he gets the certificate.


Senator Rae - The general scheme has been working very well in Tasmania.


Senator MURPHY - I thank Senator Rae for his observation. Sub-clause (5.) states:

Where a person is given a certificate . . . a statement made by the. person in answer to a question . . . put to him ... is not admissible in evidence against the person. . . .

If the protection given under clause 57 is wide enough to enable a person to decline to answer a question which would incriminate or tend to incriminate him or his spouse, why can it be broken down and a certificate given to him which would protect, only the person and not his spouse? That seems to me to be a defect in the provision. Suppose I am the person involved and I decline to answer questions on the grounds that it will tend to incriminate either me or my spouse and the judge says '1 inform you that if you answer all the questions that may be asked of you 1 will give you a certificate.' It seems that once he has informed me of this fact I am required to answer; I must answer. Suppose I give an answer which incriminates my spouse, which I am forced to do under this doctrine that one must not breach the law. If I give those answers and later I get the certificate, that cerificate protects me but there is nothing in the provision for the protection of my spouse against proceedings. I would like the Attorney.General's answer on this matter.

On the face of it, it seems that thai is not a very great protection to the spouse. I do not know whether someone who is intent upon undoing any advantages which may arise from marriage has had a hand in the drafting of these measures, but unless there is some easy answer to this problem it seems to me that the protection which was given by this great old provision does not extend to the spouse. 1 would like to know also how far this immunity under sub-clause (5.) extends, because there may be serious questions as to whether in fact a real immunity is given under State law. I would think that it is within the competence of this Parliament to protect any person who answered questions even in proceedings under State law. But I am wondering whether the provisions of this clause are really a sufficient protection. If the answers are given and the material is available, I think one could envisage that it would not afford very much protection at all. It could occur in many cases that once the person is forced to give the evidence one could set about, by a set of inquiries, getting the same kind of evidence or other evidence in some way, and the person or his spouse would be exposed to proceedings.

There is a doctrine that a person should not have to incriminate himself but if he is forced to incriminate himself - to say something that would tend to incriminate him - the general notion of the law has been that he should not be exposed to prosecution. He ought not to be subject to prosecution by reason of anything coming out of that. I do not know whether it is enough to say that his answer will not be admissible against him. One would think that if he is forced to answer he ought not to be exposed to prosecution, otherwise the doctrine of self incrimination or incrimination of one's spouse is really gone. Perhaps the Attorney-General will tell us who is responsible for this provision. There may have been some slip in the matter or I may be wrongly reading it. It looks very much as if the immunity provisions give no protection whatever to the spouse, although the doctine set out in sub-clause (1.) is intended to enable a person to protect himself or his spouse against incrimination.







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