Dean Smith (WA, Liberal Party, Shadow Assistant Minister to the Shadow Treasurer) Share this | Link to this | Hansard source

I present Scrutiny digest No. 4 of 2026 of the Standing Committee for the Scrutiny of Bills together with ministerial correspondence, and I move:

That the Senate take note of the report.

As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak on the tabling of the committee's Scrutiny digest No. 4 of 2026. This digest contains the committee's consideration of eight bills introduced between 2 March 2026 and 5 March 2026 and amendments agreed to during this period. In this instance, the committee has not commented on any new bills or amendments. However, this digest does contain its concluded examination of four previously introduced bills.

I wish to draw senators' attention to the committee's commentary regarding provisions in two bills that would abrogate the privilege against self-incrimination. The privilege against self-incrimination permits a person to refuse to answer any question or produce any document or thing if doing so would tend to expose them to criminal conviction. It is not just a rule of evidence but a basic and substantive common law right that underpins the presumption of innocence. Any removal of this privilege represents a serious loss of personal liberty, meaning that any proposal to do so should be stringently justified. It is the committee's practice to carefully examine whether the public interest in abrogating the privilege against self-incrimination significantly outweighs the corresponding loss of personal liberty.

Such justifications will be more readily accepted where the abrogation of the privilege is offset by the inclusion of both use and derivative use immunities. By way of explanation, a use immunity ensures that material or answers given by a person under compulsion cannot be directly used against them in most legal proceedings. Yet, without a derivative use immunity, authorities may rely on a person's evidence to identify other material that facilitates their prosecution. Absent this vital safeguard, individuals could be required to point to evidence that may be used to convict them, contrary to the presumption of incident.

The committee has highlighted this concern in regard to the Defence and Veterans' Service Commissioner Bill 2025. The bill would empower the Defence and Veterans' Service Commissioner to summon a person to give evidence or require information, documents or things relevant to a special inquiry. The bill expressly provides that an individual's failure to comply would not be excused where answers, information or documents they provide may incriminate them. In Scrutiny digest No. 2 of 2026, the committee queried the appropriateness of abrogating the privilege against self incrimination in this way in the absence of a derivative use immunity. Having considered the minister's response in this digest, the committee does not consider that stated alternative safeguards provide the same level of protection as a derivative use immunity. Given the committee's continuing concern about the absence of this key safeguard, it is recommended that the bill be amended to also incorporate a derivative use immunity.

This can be contrasted with the approach of the National Commission for Aboriginal and Torres Strait Islander Children and Young People Bill 2026, which expressly incorporates both use and derivative use immunities. In Scrutiny digest No. 3 of 2026, however, the committee had cause to note that the explanatory memorandum to the bill had not provided any justification for abrogating the privilege against self-incrimination. In this digest, the committee has acknowledged the explanation provided for abrogating the privilege against self-incrimination, which emphasises the significant public interest in comprehensive access to all information relevant to systemic issues affecting the safety and wellbeing of Aboriginal and Torres Strait Islander children and young people. Given the importance of the explanatory memorandums as a point of access to understanding the law, the committee has requested that the key information provided in the minister's response be tabled as an addendum to the bill's explanatory memorandum. With these comments, I commend the committee's Scrutiny digest 4 of 2026to senators.

Question agreed to.