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Thursday, 9 March 1972
Page: 647


Senator MURPHY (New South Wales) (Leader of the Opposition) - There has been some little discussion of this matter. I know that Senator Rae has said that Tasmania has some such clause. T think that the clause with which we are dealing is one about which, if extended throughout Australia or perhaps even left in this Bill, we are certainly going to hear a great deal more in the community. It will be the cause of the utmost contention. If this clause is passed there will be great public controversy about its operation and questions of human rights which will arise under it.


Senator James McClelland (NEW SOUTH WALES) - There will be great perjury, too.


Senator MURPHY - Yes. I do not think it is sufficient that the Attorney-General (Senator Greenwood) answers that one will be able to rush into court and obtain an immunity. It is simple enough to devise a procedure under which the Crown can give a certificate. It does not have to give the certificate to everyone but only to a person who is given immunity from prosecution. There may be some conditions, limits or whatever they are but there should be an immunity against the consequences of this step before a person can be forced to break down this privilege against incrimination. I am not satisfied that the clause is fair or proper or that it is' going to work properly. If a person who is required to incriminate himself declines to answer and the judge says: If you answer all the questions I will give you a certificate', we hope that that person will be advised that all the protection he will get is that that answer itself will not be used against him. If he answers truthfully, such answers may give all the ways in which a prosecution may be found against him. The police will be able to go out and find the leads. In effect, the accused person will provide the basis for convicting himself. What is that going to do except raise the utmost, resistance by people? They will want to refuse and the matter of contempt of court will arise. It will be contempt because a person refuses to incriminate himself. I can see that there is going to be the greatest difficulty over this matter. If it is important enough to force a person to give an answer which will expose the fact that he has committed a crime, or his spouse has, or would tend to do so, that should only be done under some circumstance such as the Crown deciding to give that person an immunity certificate. They could choose the cases.


Senator Byrne - Would we not finish up like America where people plead a certain amendment giving them immunity? It is like the American fourteenth amendment where a person stands on his civil rights. It is very big and wide.


Senator MURPHY - If that were so I think that that would be a more desirable result than the result which will be obtained from this clause. If this clause goes through that is my prediction to the Senate.


Senator Greenwood - But it has been in force in Tasmania since 1910.


Senator MURPHY - Tasmania is Tasmania; it is not the whole of this continent. It is an important State in this Commonwealth in tourism and industry. In many respects it is not treated as well as it should be. It is a place which has had a harsh history and it is not widely considered.


Senator Marriott - We do not disobey laws which we do not like.


Senator MURPHY - I heard that down in Tasmania there has been flagrant disobedience of the law. I am told that in recent weeks citizens have been known actually to stand outside shop windows and little children have been known to leave suitcases on the footpath while waiting for buses! The new Superintendent of Police has said: 1 am going to stamp this out'. The full force of the law of Tasmania is being brought to bear upon what has been described as 'these persistent law breakers'. In this comical situation perhaps we should not be diverted by what Senator Marriott has said. Tasmania is a fine place but we are dealing with the laws which will apply to the Australian Capital Territory and which may be extended to other parts of Australia. I think that the law should not be left in the position where we are going to have the gravest contention. There is no doubt that most serious problems are going to arise if the only result of an immunity certificate is that the answer cannot be given. In most cases a person would be a fool to answer questions. Suppose he felt that his answer would expose him to a successful prosecution for a serious offence. It would be far better for him to defy the judge and refuse to answer the question, rather than answering questions which might injure him. We should not. force persons into such a position. If the situation is important enough to require people to give away the privilege against incrimination then there should be something far more satisfactory than a mere provision that the answer will not be used against a person.







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