Mr BELL (Mount Gambier) (11:37): I rise to make a few comments on the bill and perhaps foreshadow some of my thinking around it. One of the disappointing things, or missed opportunities, in this bill is the requirement to report back to parliament. The Coroner can conduct an inquiry and make recommendations, but I would like to see some work done in relation to the obligation, from a parliamentary point of view, of adopting or not adopting or tabling those.
Of great concern to me is the part around compelling somebody to give evidence. I think it is really important that we thoroughly study what we are aiming to do here: when somebody's right, a common law right against self-incrimination, is going to be overturned or modified in some way, this parliament needs to have a serious debate and consideration of that. Common law has been around for 850 years—since 1066 roughly—and it has served us pretty well as a society. You can see that something written down very quickly here starts impeding on somebody's common law right, and if it is not drawn to the attention of people it could easily be missed.
I just want to quote a little bit from the Law Society, when they were asked to give feedback on this. This is a letter from the Law Society. They oppose the removing of the privilege against self-incrimination and make the following points:
The privilege against self-incrimination is 'a basic and substantive common law right, and not just a rule of evidence'. The privilege against self-incrimination is an element of the broader right to silence and reflects 'the long-standing antipathy of the common law to compulsory interrogations about criminal conduct'.
While the Society does not support the abrogation of the privilege against self-incrimination, if this amendment is pursued, it is important that where self-incriminating evidence is compelled, it cannot be used against the witness in other criminal or civil proceedings. It is appropriate that this protection applies not just to evidence given by the person, but evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence. Although the provision of a certificate (as suggested) mitigates the abrogation of the privilege somewhat, the wavering of the privilege against self-incrimination can still be problematic and detrimental to a witness. The High Court has identified that indirect consequences can flow in a diffuse way that is not easy to predict when coercion is exercised upon a person in respect of their giving evidence. This can be relevant to both suspected persons' dignity and privacy but it can also impact upon their capacity to exercise forensic choices should charges later be preferred. The Society also has concerns that potentially if the privilege is abrogated, there may be a strong temptation for investigators to disguise use of any admissions made by the witness in order to build a case against him/her.
When we come to that part of the bill, I certainly have a number of questions around the determining aspects of that right to silence and also the compulsion to give evidence. But I also want to take it further, and that is why I will introduce an amendment. Whilst the Coroner collects this evidence and there is a protection through a certificate against criminal or civil proceedings, my concern is around what happens to that evidence.
The evidence is collected in a coerced way—the person is compelled, normally under threat of gaol or imprisonment and a substantial fine—but once that evidence is deployed in a court setting it is disclosed to the world at large. That may have some unintended consequences for the person who was forced to give up their right to silence, and unintended consequences not necessarily in a civil or immediate criminal way.
All my amendment seeks to do is that the court, when it is considering this aspect of abrogating somebody's right to silence and eroding a common law which has been around since 1066, must consider—it does not say it has to, but it must also consider—that deployment of information to the world at large, and it must consider whether it should make a suppression order under section 69A of the Evidence Act with respect to the information that has been gathered or the record or the document.
So it is trying to put some level of protection in, with the understanding that this is an extraordinary step to take and is circumventing a member of this state's, a member of the public's, right to silence. Of course, that is really borne out by the fact of a basic common law that the state must prove guilt beyond reasonable doubt. With those comments, I raise my interest in this bill and also, hopefully, assist in its construction.