The NSW Government has passed legislation that destroys the right to silence in certain circumstances. This centuries old principle underpins the rule of law in every democracy in the world, but no longer in the state of NSW.
Changes contained in the Evidence Amendment (Evidence of Silence) Bill 2013, are a populist move designed to make the government appear ‘tough on crime’. But the amendment is ill-conceived and potentially unconstitutional. Whilst the NSW Attorney-General, Greg Smith, had been praised for his position on law and order issues prior to winning government, he is now under sustained attack. According to Professor David Dixon:
He’s actually done some things that are half-decent, like the bail laws and now he is just doing, frankly in quite a cynical way, something that is going to get him good press.
Governments must never undermine fundamental legal rights, including the right to silence.
Under the act, juries can draw adverse conclusions from an accused having relied on the right to silence in police interviews. Juries can also draw adverse conclusions of an accused that relies on the right to silence during an interview, yet down the track then seeks to use particular evidence or facts as part of their defence that they could have disclosed in the initial interview.
But what if the accused forgets, or is too intimidated by police questioning to tell the police their life story?
Arguably, the right of silence is even more central to the rule of law the more serious the offence. Thus, by abolishing the right to silence for serious indictable offences, the government is abolishing the right where it is the most crucial – for accused persons facing the most serious penalties under the law.
It is likely that the law is unconstitutional. However, the government should not wait to have its abhorrent law overturned by the High Court. The NSW Government must immediately reinstate the right to silence, and thus strengthen the rule of law.