A local assault on Aussies' right of silence

In addition to freedom of expression, there are some other freedoms that we tend to think of as pretty fundamental. One of them is the right of silence. The Miranda warning given to American suspects upon arrest begins, "You have the right to remain silent." Our Supreme Court required that of all law enforcement agencies, so that they could not subvert the right. It's the famous Fifth Amendment, part of the Bill of Rights: "No person...shall be compelled in any criminal case to be a witness against himself."

Well, as I may have mentioned before, Australia doesn't have a Bill of Rights.

There's an interesting little bill, actually an amendment, that was passed in March by the New South Wales Parliament. It's called the Evidence Amendment (Evidence of Silence). It says, in brief, "You still have the right to remain silent. But then we have the right to infer negative things about you because of your silence." Negative things such as, "You're guilty."

Support for the bill was not unanimous. Greens member David Shoebridge made this speech prior to passage. He points out how the right of silence is one of the keystones of all common law. Didn't matter, it passed anyway.

What was driving this incredible erosion of fundamental freedom in an Australian state? Evidently, it is the increasing power and violence of "bikie gangs" and a perceived "wall of silence" that causes difficulty in bringing them to justice.

Some of the provisions are a bit surreal. As finally passed, the possibility of negative inferences only pertains if silence is maintained in the presence of one's lawyer. Which, one commenter said, evokes the following image:

DETAINEE (on phone to lawyer): "I've been arrested. I didn't do it, but there are some strange circumstances. Come down here and help me!"

LAWYER: "You don't want me there. If I come and you remain silent, they can infer that you are guilty. Stay silent and I'll stay away. You and I will get together some other time."

One can imagine the problems that will arise within the legal system here. In fact, two professors have imagined them and don't like what they imagine.

But what's more striking, to this visiting Yank, is that it's happened at the same time as well publicized assaults on freedom in the US: the Justice Department obtaining huge, unwarranted volumes of phone records from the Associated Press; the Internal Revenue Service suppressing organizations' tax exemptions based on their conservative political views. 

Just goes to show: eternal vigilance is truly the price of freedom.