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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 433 ..
MS DUNDAS (continuing):
In practical terms, there is the potential for this to be used to largely defeat the privilege against self-incrimination. In the High Court case of Environment Protection Authority and Caltex, Chief Justice Mason and Justice Toohey considered the nature of the privilege in great detail. They observed that historically the privilege developed to protect individual humans from being compelled to testify, on pain of excommunication or physical punishment, to their own guilt. They went on to say:
In one important sense, the modern rationale for the privilege against self-incrimination is substantially the same as the historical justification-protection of the individual from being confronted by the 'cruel trilemma' of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment).
They noted that the privilege is now an internationally recognised human right. As Justice Murphy commented in Rochfort and Trade Practices Commission:
The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity.
The International Covenant on Civil and Political Rights states that no person may be compelled to testify against himself or herself in the determination of any criminal charge against them. The courts take Australia's international human rights obligations into account when making their decisions. So, too, should we as legislators give considerable weight to these obligations in making judgments about the appropriateness of legislation placed before us by this government. If the bill does violate the international covenant then it is contrary to international law.
We have before us circulated amendments that seek to address this issue of self-incrimination, and we are mindful of the fact that removing derivative use immunity, which applies in the current Proceeds of Crime Act, is supported by both of the larger parties. What has been suggested is essentially a compromise.
We should also take into account the growing tendency of the government to reverse the onus of proof, as stated in the Scrutiny of Bills report. By placing the onus of proof on the defendant where the information relevant to the issue is likely to be possessed by the defendant, we are dealing with evidence that is obtained in quite controversial circumstances.
The Democrats are not convinced that where an individual has been acquitted of an offence it should be possible for the state to further pursue them for that offence. Professor Dribbs has made the point that, as the level of dissatisfaction with the criminal justice system rises, the state will slowly turn to the civil law as a vehicle for pursuing its criminal justice agenda and that, more and more, the civil system will take the place of the criminal system. It may be that, given the changing nature of organised crime, reform of the criminal justice system is necessary to restore the confidence of all concerned.
To conclude, the Democrats are mindful of the need to ensure that where confiscation has taken place there are proven proceeds of crime. We support the principle that criminals should be denied unjust enrichment from their criminal activities. However,
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