Is there really a right to silence?

The Age reported yesterday that 350 Victorians have been compelled to answer questions about drug trafficking, murder and corruption before a government-appointed Chief Examiner. This little-known body was set up to investigate Melbourne’s gangland killings, and people who refuse to answer questions can face five years in jail.

Civil libertarians and legal bodies objected strongly, arguing that the right to silence is one of our most fundamental rights.

This had me wondering: is the right to silence a fundamental human right? Or is it a lesser right, which is ok to override at times?

Put another way, if you have information that can help stop murderers, why should you have the right to keep silent about it? But also, is it dangerous to give the state the power to coerce information out of you, and what if you don’t actually have the information they think you do?

There is no widely accepted view on this. The right to silence does not appear in the Universal Declaration of Human Rights, but it does sort-of appear in article 14(g) of the International Covenant on Civil and Political Rights, which specifies the right to “not to be compelled to testify against himself or to confess guilt.”

This demonstrates the most common argument in favour of the right to silence, which is the protection against incriminating yourself, so that police and prosecutors can’t coerce or trick you into making a false confession.

When pondering this on Twitter, some Tweeps kindly raised a second objection: that arguing the state has the right to coerce information out of people is one step towards justifying torture.

However, the right to silence has often been denied without resulting in anything approaching these disaster scenarios. One example is ASIO’s questioning powers, the most controversial coercive questioning powers in this country.

Currently, if ASIO believe you have information relevant to a terrorist act, they can detain you for questioning, and threaten you with five years of jail for refusing to answer. However, if they intended to mistreat you or induce a false confession, they would face the following hurdles:

–          They must get approval from the Attorney-General before questioning you.

–          They must get further approval from an independent issuing authority, which will be either a judge or magistrate from a federal court.

–          Another independent authority, usually a retired superior court judge, will monitor the entire interrogation. They must ensure you are aware of your right to complain to the Inspector‑General of Intelligence and Security, the Ombudsman and to a police complaints agency.

–          The interrogation must be videotaped.

–          You can have a lawyer with you, though it might not be the lawyer of your choice.

–          Anything you say cannot be used in a prosecution against you, though it may influence the direction of an investigation.

(These are detailed in section 34 of the ASIO Act, and the Independent National Security Legislation Monitor Annual Report. It’s worth remembering that many of these safeguards were not in the original ASIO amendments introduced after 9-11, and it was the ALP under Crean and Beazley who forced the Howard government to include these protections.)

The ASIO example suggests the right to silence can be overridden while still protecting the right against self-incrimination and mistreatment. And if those crucial rights can be protected, it is hard to see why the right to silence should be considered a fundamental human right that trumps the need to tackle serious crime.

As for Victoria’s Chief Examiner, I’m not sure if its questioning powers are constrained by as many safeguards as ASIO’s are. Also, it has used its powers much more frequently than ASIO, having coercively questioned 350 people since 2005, while ASIO has coercively questioned 11 people since 2004-2005 (judging by its annual reports to Parliament).

So it would be good to know more about what the Chief Examiner is up to, but it’s unlikely to be very sinister. The Age article points out that the Chief Examiner requires Supreme Court approval before using its special powers, that the Special Investigations Monitor gave it a clean report, and that none of the 350 people coercively questioned lodged a complaint.

Lastly, denying the right to silence when investigating serious crimes is not a radical step. Bret Walker SC, the Independent National Security Legislation Monitor, has pointed out that “powers to compel persons to attend and answer questions concerning the suspected wrongdoing of others” are common, and have been used by “bodies such as the Australian Crime Commission, the Australian Competition and Consumer Commission, the Australian Securities and Investments Commission, the Independent Commission Against Corruption and the New South Wales Crime Commission.”

Given this, my view is that the right to silence is not a fundamental human right. It is a procedural right, which has developed in our legal system for very good reasons, but is not inviolable. It can be justifiably denied in some circumstances, as long as there are safeguards to protect the truly fundamental rights.

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