Friday, November 08, 2013

Legal rights eroded without a whimper

The right to silence is under constant threat from the many new laws passed at state and federal level.  This legal right forms one of the core aspects of our criminal justice system:  that no one should be compelled to incriminate him or herself.

Such a crucial protection against injustice should not be eroded by dictatorial legislation that demands a rubber stamp from a reluctant judiciary.

Our common law has long held that to force people to condemn themselves is oppressive and contrary to justice.

Yet for years state and federal governments have passed laws that have undermined or directly removed this legal right.  Governments, concerned that they do not appear ''tough on crime'', get frustrated when due process in the criminal courts gets in the way of increasing the conviction rate.

A recent decision by the High Court clearly shows the long and sorry history of contempt that our Parliament has for the right to silence.  Lee v NSW Crime Commission concerns the NSW Criminal Assets Recovery Act 1990.

This law allows the police to force people to incriminate themselves, even if they have a criminal trial approaching.  Unfortunately, the court upheld this law and now the accused will have to produce damning information ... against himself.  This means he is helping the prosecutors better fulfil their job, completely ignoring his own right to not make things worse for himself.  Why would the High Court support such a law?

The judgment shows us how the right to silence has been whittled away for decades.  Over the years, legislation that has undermined this legal right has been confirmed in case law and those same decisions have paved the way to trump centuries of legal protection.

As far back as 1909, Huddart, Parker & Co v Moorhead brazenly noted how Parliament has the power to change ''any principle of British criminal law, no matter how fundamental''.  Half a century later, another High Court decision, Lockwood v Commonwealth, noted ''no court'' could declare illegal any law that was clearly stipulated in legislation.  Ultimately, they argued that ''it is a rule of the common law that the common law itself gives way to statute law''.

In other words, a citizen could not possibly refuse to make incriminating statements to authorities when faced with legislation that expressly tells them they have to answer.  Because of the nature of our parliamentary system, the judiciary cannot overrule legislation that comes from our democratically elected Parliament.  The court's role is to apply the law:  no more, no less.  What we need is for governments to stop undermining embedded common-law principles to achieve political ends.

Lee emphatically illustrates that the government is entitled to remove fundamental rights, as long as the legislation they write specifically gives them that power.  So the government can grant themselves the power to remove one of the key protections we have against an overreaching authority.

Lee shows that over the past century, governments have been and are still abusing this power, playing with the fabric of our legal system.

Time and again, arguments of ''the greater good'' have been used to curtail our legal freedoms.  There is always a new enemy that can only be beaten if we just give up another right, another freedom or privilege.

The right to silence is losing the battle being waged by our politicians.  It's time our elected leaders back off the principles that have built the great democracy and justice system that we have today.

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