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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-05-14 Daily Xml
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BURIAL AND CREMATION BILL

Committee Stage

In committee.

(Continued from 2 May 2013.)

Clauses 35 to 62 passed.

Clause 63.

The Hon. S.G. WADE: I move:

Page 34, lines 29 to 36—Delete the clause and substitute:

63—Self-incrimination

A person is not required to answer a question or to produce, or provide a copy of, a document or information under this Act if the answer, document or information would tend to incriminate the person of an offence or make the person liable to a penalty.

Clause 63 of the bill proposes to remove the privilege against self-incrimination. The parliamentary Liberal Party is sceptical of proposals to wind back an individual's privilege against self-incrimination. Our general approach is that we only support such moves where there are strong policy grounds to do so. The opposition's consultation indicates there are not strong policy grounds to do so in this case.

In debate on the bill in the House of Assembly the Deputy Leader of the Opposition questioned the Attorney-General on the inclusion of the clause. In his response, the Attorney-General stated:

No, I did not explicitly ask for it. Parliamentary counsel does fascinating things: 99 per cent of the time they are fabulous. As far as I know, not every minister asks for every single word that we get, so this is part of the mystery—you have identified part of the mystery. I do not think that it is a bad thing to have it in there, but I did not explicitly ask for it. I do not believe anybody explicitly asked for it. My understanding is that it is a pretty standard sort of—I can honestly say that I have never turned my mind to that particular matter and now, having done so, I do not see any particular mischief being created by it.

The mischief in our view is the removal of a fundamental legal right. The privilege against self-incrimination has been part of the common law since the late 18th century. At that time there was a radical shift in criminal law procedure. Prior to that time a criminal trial was seen as giving the accused the right to speak and answer the charge against them. At that time the criminal trial came to be seen as an opportunity for the accused to test the prosecution case. This resulted in the adoption of what some call the three most fundamental rights of an accused: the privilege against self-incrimination; the beyond reasonable doubt standard of proof; and, the exclusionary apparatus of the rules of evidence.

We have seen time and again this Labor government trying to undermine the fundamental legal rights of individuals, and clause 63 of this bill is another example. As I have stated, we do not believe the privilege should be removed in this case. The government has filed an amendment on this issue. What the government's compromise proposes is that the removal of the privilege only applied to part 2 of the bill. Part 2 deals with serious offences with serious consequences. Under it, people facing up to $20,000 in fines and four years' imprisonment would have their basic legal rights removed in dealing with offences with severe consequences.

Accordingly, I have moved my amendment to protect the individual's privilege and I urge the council to support it in preference to that of the government. We believe people need to have the right to protect themselves throughout the bill.

The Hon. G.E. GAGO: I move:

Page 34, line 32—Delete 'or make the person liable to a penalty' and substitute:

of an offence against Part 2.

Will we deal with Mr Wade's amendment first?

The ACTING CHAIR (Hon. J.S.L. Dawkins): There is a process.

The Hon. G.E. GAGO: I will speak to Mr Wade's amendment first. The government opposes the Hon. Stephen Wade's amendment. Clause 63 abrogates the privilege against self-incrimination but applies to use immunities against the use of the information provided by virtue of that abrogation. The opposition is opposed to any attempt to abrogate the privilege against self-incrimination. The government considers that there is good public policy behind abrogation in certain circumstances so long as use immunities apply to the information provided by virtue of that abrogation.

Clause 63, as currently drafted, provides that, where a person is required to answer a question or provide a copy of a document or information under the act, the answer, document or information is not admissible in evidence against the person in proceedings for an offence, other than proceedings in respect of the making of a false or misleading statement or declaration. The government is, however, prepared to accept a focusing of this abrogation to only those most serious offences under the bill.

Accordingly, the government has filed an alternative amendment to this amendment that limits the abrogation to investigation into offences against part 2 of the bill, which includes the unauthorised destruction of human remains. The government opposes this amendment and commends its alternative amendment to clause 63 to the committee.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The first question I put is that all words in clause 63 down to but excluding 'or make the person liable to a penalty' stand as printed.

The committee divided on the amendment:

AYES (7)
Finnigan, B.V. Gago, G.E. (teller) Hunter, I.K.
Kandelaars, G.A. Maher, K.J. Wortley, R.P.
Zollo, C.
NOES (14)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Franks, T.A. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G. (teller)

Majority of 7 for the noes.

The Hon. G.E. Gago's amendment thus negatived.

The Hon. S.G. Wade's amendment carried; clause as amended passed.

Clauses 64 and 65 passed.

Clause 66.

The Hon. G.E. GAGO: I move:

Page 36, lines 7 and 8 [clause 66(2)(c)]—Delete 'prescribed facilities' and substitute 'crematoria'

This amendment simply replaces the references to 'prescribed facility' with the term 'crematoria'. The term 'prescribed facility' was used throughout the draft bill that was released for public consultation, but it was subsequently replaced with references to crematoria as a result of amendments arising from public consultation. The reference in this particular provision was overlooked and the amendment simply corrects that oversight.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:34): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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