When is evidence not evidence ? The answer, it seems is when it is part of an enquiry conducted by the Independent Commission against Corruption ( ICAC ).
ICAC has draconian powers to force people to attend and give evidence, but that same evidence can not be used against them in a court if charges are laid.
Because Australia does not have a " Bill of Rights " those questioned by ICAC do not have the protection of " the Fifth Amendment ", allowing them to refuse to answer on the grounds that they might incriminate themselves.
Instead, they must answer even if they do incriminate themselves, but that is useless to future prosecutors because it can not be used as evidence of guilt.
What a strange way to run a legal system !
In recent times Wollongong council was sacked and administrators appointed because of the corrupt action of several councillors - and yet those people have yet to appear before a court and no charges have been laid.
It can be argued on the one hand that guilty people have got away with their crime - and on the other that the law lacks conclusive evidence other than their own words to lay a case and secure a conviction.
If we had a " Fifth Amendment " just about any ICAC enquiry would be a steady progression of witnesses refusing to give evidence by claiming the protection of that amendment.
Now there are moves to change the law to allow ICAC evidence to be used in civil court cases - and that's where the notion of a " fair trial " flies out the window.
If ICAC is to retain the draconian powers to make any witness not only attend, but to give truthful evidence under pain of imprisonment for refusal - then we are moving the goal posts if we then make that evidence fair game in any future trial the DPP may bring.
That would be a sure way for the guilty to flee the country to avoid giving evidence and would also prevent ICAC from getting to the bottom of corruption cases which involved systematic oversight flaws.
We would be better to stick to the system we have - despite the chance that the guilty may not serve just punishment - rather than make a change that would induce some to serve time for contempt of ICAC - a lesser penalty than would be meted out had that person admitted their crime and been punished under the law prevailing for that offence.
For some, refusing to testify would gain them hero status in the eyes of civil liberty fans, rather than the infamy of becoming a convicted felon.
The law makers should think long and hard before they interfere with a system that has the power to investigate crime - and yet offers protection for those offering an honest answer.
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