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.