Trading Freedoms - Voluntary Unionism or the Right to Silence?

Simon Power needs Act's support to pass the Criminal Procedure (Reform and Modernisation) Bill. Will he tell Act to stuff Heather Roy's Voluntary Student Union Bill where the sun doesn't shine, unless they hold their noses, and support grossly illiberal legislation which does away with the right to silence?

When Chris Kahui was acquitted of murdering his twin sons in 2008, law commissioner Sir Geoffrey Palmer mused that perhaps it was about time we did away with the right to silence for those accused of criminal offences.

He was quoted in the New Zealand Herald: "It is not a change that would happen quickly, but talking about it is not [typo edited] wrong."

Justice Minister Simon Power did more than talk about it. In late 2010 he introduced to Parliament omnibus legislation (which does have some notable qualities, such as making it much harder for celebrities to obtain name suppression) the Criminal Procedure (Reform and Modernisation) Bill.

Supporters (Sensible Sentencing et al) viewed the legislation as justifiable; they'd been outraged when the Kahui whanau had refused to cooperate with police investigating the deaths of babies Chris and Cru. The Government's solution was to increase the powers of the police - always a dangerous move, since the police will never tell governments to cease, and say, "We have enough powers, already."

But now the Minister is struggling to pass the Bill in its present form. He must secure the support of the Act Party, or the Bill will not pass before the election, and before he retires. Power has championed the need to end the right to silence. When this goes, with it goes its cousin, the right to be presumed innocent until proven guilty. Power says the changes will speed up the justice system and reduce costs, but his own department did not come up with significant research to back up this, stating it would be, "difficult to identify robust estimates of the savings in preparation and trial time that could be made."

The sticking point for Act is that the Bill introduces pre-trial rules which erode the right to silence for the accused by providing, in Clause 64, that the defence must notify all issues in dispute. In other words the accused must provide police, the prosecution, with all the details of their defence before going to court. Presently they don't have to do this because the burden of proof lies with the prosecution. If the Bill passes, our entire criminal justice system will be turned on its head.

Furthermore, Clause 106 provides that if the defence fails to comply satisfactorily with the above clause, in other words, if the accused doesn't 'put all their cards on the table' so to speak, then an inference of guilt, or something to hide, can be taken. The right to silence no longer means just that, it can be taken to mean something dodgy.

The right to silence is not some quaint notion. The prosecution's evidence must be truly tested. The police, for instance, should not know what's coming when they're questioned in court, so their answers are spontaneous and honest. We know the police can lie. We only need look at some recent cases to see the evidence of late.

In the United States, the right not to incriminate oneself is a constitutional issue, entrenched in the 5th Amendment, an interesting fact in light of the National/Maori Government appointing last week a Constitutional Advisory Panel. Can we protect individual rights in this country? Clearly our Bill of Rights Act is not enough, as Government has already signalled it will be amended if this Bill is passed. It already states individuals have the right to refrain from making any statement when arrested, and to be informed of that right. But that can be overturned by simple Parliamentary process.

But now the Minister of Justice wants his Bill to pass, and there are fears he will do a deal with Act which will go something like this: National will pick up Heather Roy's Voluntary Student Union Membership Bill - originally a Members Bill, and the only way this will now pass thanks to Labour's pathetic filibustering - only so long as Act votes in favour of the Criminal Procedure Bill. This will mean Act will have to vote away the right to silence.

What will Act do? Whose freedoms are more important? The freedoms of students to choose to join a union as opposed to being forced to join a union? Or the freedom of the accused to be innocent until proven guilty and retain the right to remain silent, a hard-won freedom we should never, never trade away?

The Greens have consistently voted against the Criminal Procedure Bill, and for that we should, no matter what our political persuasion, salute them.

But Heather Roy's Bill, if passed, will be the first Members Bill ever passed by the Act Party, a considerable achievement for that Party. Roy should also be saluted, but will the nest of vipers which Act has become take the opposite path, and rob outgoing Roy of this final victory?

That decision rests in the hands of Justice spokesperson Hilary Calvert.