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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-09-26 Daily Xml
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LEGAL PRACTITIONERS (MISCELLANEOUS) AMENDMENT BILL

Final Stages

Consideration in committee of the House of Assembly's message.

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

That the council do not insist on its amendments.

The government would like to take this opportunity to thank the Hon. Mr Hood and the Hon. Mr Darley for their support of the government's positions on amendments Nos 13, 20 and 24.

The Hon. S.G. WADE: I want to put the Liberal Party position in context. The Liberal Party is increasingly opposing the government's approach of undermining the presumption of innocence. In 2011, the Liberal Party took a decision to reaffirm its commitment to defend the privilege against self-incrimination as a matter of principle, only abrogating it where the public benefit significantly outweighs the private detriment.

The legal privilege against self-incrimination provides immunity against compulsion to give evidence or to supply information that would tend to prove one's own guilt of a crime or other breach of the law. I will not go into detail, but the sort of policy justifications for the privilege in the modern age are to protect the accusatorial system of justice. A fundamental principle of the accusatorial system of justice is that the prosecution bears the onus of proving to the relevant threshold that an accused is guilty of an offence with which he or she has been charged.

The principle of the presumption of innocence is said to undergird that privilege. Those who allege the commission of an offence should not be able to compel the accused to provide evidence of his or her own guilt. Secondly, the privilege helps prevent against abuse of power. It helps protect the quality of evidence, and in legal terms it is said to help avoid the cruel trilemma, where a witness has to choose between three unpalatable options.

Since 2011, as I said, the Liberal Party has consistently sought to protect the right. We have opposed the removal of the privilege in a range of bills, including the Natural Resources Management (Review) Amendment Bill 2013, the Burial and Cremation Bill 2013, the Work Health and Safety Bill 2012, and the Electrical Products (Energy Products) Amendment Bill 2011. When the Legal Practitioners Act came up for review we, of course, had a look at it too and felt that the resuscitation of the common law was the best way forward in the context of this bill.

The government has been dismissive of basic legal protections. The government's view is that serious criminals should have stronger rights than law-abiding lawyers. If you steal from a bank, the government wants you to have legal protection, but if you work as a lawyer you can be forced to incriminate yourself. As I said, the Liberal Party view is that these basic rights should only be taken away in the most extreme circumstances.

An honourable member made this point to me: is the privilege relevant outside the criminal jurisdiction? The Liberal Party view is that it is already widely available in a wide variety of investigatory situations and it is very relevant to non-criminal proceedings. In that context, I would like to quote others. In 2004, the Queensland Law Reform Commission report specifically addressed this point:

In an era of increasing governmental regulation of many aspects of everyday life, civil penalties are a useful tool for securing compliance with a regulatory scheme. Legislation may provide for civil proceedings for the imposition of a penalty as an alternative, or in addition to, criminal liability for non-compliance. Although the imposition of a penalty does not result in a criminal conviction or the possibility of imprisonment, the consequences can nonetheless be extremely serious for the individual concerned. They can include an obligation to pay a pecuniary penalty, dismissal from employment in the public service or disqualification from engaging in a professional activity. In some circumstances, the outcome of the imposition of a penalty may be as onerous for the individual as a criminal conviction.

The Queensland Law Reform Commission recommended that the privilege should be reinforced by statute in situations other than criminal proceedings.

The Australian Law Reform Commission has also noted that some civil and administrative penalties carry consequences that are just as serious as traditional criminal punishments. It suggested that the readiness to remove the privilege more easily in relation to non-criminal penalties may require reassessment in the light of the convergence of the severity of criminal punishments and non-criminal penalties.

While the state Liberal team considers that the self-incrimination issue is a very important one, I would indicate that, in the context of this bill, we do not intend to suggest to the council that it insists on its amendments in relation to self-incrimination. We will continue to work with stakeholders to make sure that consumer protection measures are fair not just for consumers but for lawyers too.

The Advertiser last week criticised this amendment. When it published its article and the associated comment, it knew that we, the Liberal Party, wanted the laws in question to go through the parliament unamended but, unfortunately, that was not reflected in the article. The most bizarre element of The Advertiser coverage was the Attorney-General's linking the issue with the case of Eugene McGee. The Advertiser report states:

Mr Rau, a lawyer by profession, believes the Upper House moves to dilute the legislation are 'a joke' and will undermine public confidence in the profession—already at a low ebb following the Eugene McGee hit-run saga.

I do agree with the Attorney that public confidence in the profession is at a low ebb following the Eugene McGee hit-run saga, but that is not because Mr McGee was able to access any legal privileges: it was because the legal profession oversight regime failed. One of the factors that led to this failure was the Attorney's own decisions.

To say that the Attorney is being tough on lawyers and tough on McGee, as was suggested in some commentary, is itself a joke. The Attorney has consistently refused calls by Senator Xenophon, by former attorney-general and current Speaker of the other place Michael Atkinson, and the opposition to refer the McGee case to the Legal Practitioners Disciplinary Tribunal. He then brought to this place a bill which sought to remove all consumers from the process of reviewing lawyers' conduct.

The Liberal Party moved amendments, which this council supported, which blocked the Attorney-General's attempt to sideline the community from legal regulation, and I am glad to see that they have backed down on that. As a result of this council's workmanlike work in relation to this bill, the tribunal will now consist of one-third of non-lawyers. The Liberal Party will be supporting the motion that we not insist, but we believe we have unfinished business to do.

The Hon. M. PARNELL: It seems clear from the minister's brief contribution that the government has used the time that has elapsed since this bill was last debated to secure the numbers; therefore, it is pretty much now a moot point, it seems. I would just like to make the observation that issues of principle such as this—the right to silence and the right against self-incrimination—are fundamental legal rights, and we debate them in a very ad hoc manner in each of the different bits of legislation that arise.

The Advertiser headlines the Hon. Stephen Wade has referred to could just as easily have been 'Mass murderer getting away with refusing to answer questions'. What we are trying to do is weigh up chalk and cheese in many ways. The mass murderer has every right to keep his or her mouth closed, and no adverse inference can be drawn from that fact. For a lawyer facing potential disciplinary action, it is a very different situation, and they do not have the right to keep their mouth shut.

I think that what I take out of this whole debate is that one of the things missing in this state that I think would help us as legislators is a law reform commission or some body that is tasked with investigating some of these complex legal issues. I do not think we do justice to it if every time this occurs with an NRM act or a legal practitioners act—maybe it will be hairdressers' registration next and whether hairdressers have a right to silence in disciplinary actions. Who knows what the next one will be?

I think we really do need to do better than has happened in this case. Certainly, having secured the numbers, there was no great need for the government to lobby the Greens, so we have not actually had to think about it or talk about it since we last debated it. I just make that observation, that what this state would really find useful, I think, is a law reform commission where some of these issues could be explored in greater detail than we do here in this chamber.

Motion carried.

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