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Thursday, 9 March 1972
Page: 646


Senator GREENWOOD (Victoria) (Attorney-General) - I suggest to Senator Murphy that we have a vote on his amendment to delete sub-clauses (2.), (3.), (4.) and (5.); and then, if the decision is to retain them, we can open up this other question and consider the appropriate amendment to be made. I recognise that there is a casus omissus which has to be looked at, and I am sure that we can do that in a satisfactory way. As Senator Murphy has finished for the time being, let me say that I do not accept for one moment the proposition that there should be an immunity from prosecution. I believe that there should be simply a prohibition upon an answer given in circumstances which might amount to duress in the face of the court being used against the person concerned in subsequent proceedings. There is nothing about that which is unusual or exceptional in Commonwealth law. Furthermore, there is nothing exceptional in the police, even though they cannot use the answer that has been given in the proceedings, using the material or information that is come to them to seek to discover, if they can, other evidence that will establish an offence against a person who, for example, may have admitted to the offence in the course of a hearing before a court but who cannot be prosecuted because that admission cannot be used against them.


Senator Murphy - It puts a person in a terrible position, does it not. if he is getting no immunity, because really he is exposing himself to prosecution if he answers.


Senator GREENWOOD - I do not want to be misunderstood. I say that if a person is before a court - maybe unwilling before a court - because he is able to give evidence in the court proceedings it i« in the interests of justice that he be compelled to answer the question or to accept the penalty for not answering If it be said that that is a difficult situation into which to put a person because if he answers the question he may incriminate himself, what is fairer than to say to him: 'If that is the difficulty you have in answering the question, any answer you give cannot be used in any proceedings which may be taken against you afterwards and in respect of which you have this fear of incriminating yourself?


Senator James McClelland (NEW SOUTH WALES) - But proceedings might arise out of his answer, whereas if he had not given the answer that he was compelled to give proceedings might never have been commenced against him. Why is not he entitled to an immunity from being put in that position? It is not just a matter of evidence that may be used in a subsequent trial.


Senator GREENWOOD - I agree, in one sense, that the proceedings might never have arisen if he had not given that answer; but the proceedings will arise only if there is a prima facie case upon which a prosecution can be instituted, quite apart from the answer that was given. 1 do not believe that we should so disregard the public interest that, if the police can maintain a prosecution which can be launched effectively against a person, the mere fact that he set the police on his track because he happened to be in court and gave an answer is any reason for not doing that. It is suggested that he should have a complete immunity from prosecution. I believe that that is really a fantastic proposition to put, because if I were a wrongdoer 1 could not get into a relevant court action quickly enough and there put myself in the pose of being a reluctant witness unable to answer a question and then, in an appropriate way at an appropriate time, answering the question and asking for the certificate under this provision and thereafter, as Senators Murphy and James McClelland suggest, being immune from prosecution. 1 believe that that is one factor to be urged against the plea that-


Senator Byrne - He is not immune from prosecution; that evidence is not admissible against him.


Senator GREENWOOD - I think Senator Byrne is missing the point that has arisen. I maintain that the answer should not be evidence in a prosecution. As I have said, that pattern is to be seen in quite a lot of legislation. But, as I understand the position, the reason why Senator Murphy has moved this amendment to have the sub-clauses deleted is that they do not give a complete immunity from prosecution.


Senator Byrne - From the consequences of the evidence.


Senator GREENWOOD - Yes. I say that that proposition goes far too far and is one which I would not accept and which I do not think honourable senators should accept, because it would create a situation in which all sorts of devices would be adopted whereby law breakers would obtain for themselves an immunity from prosecution simply by getting into court as quickly as they could and obtaining a certificate which would render them immune forever. 1 do not think there would be very much difficulty in their achieving that result. 1 certainly believe that this amendment, which seeks to delete these provisions which will permit the answer to be given but then not to be used in evidence, should be defeated.







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