Freedom of Speech and the Right to Remain Silent

the right not to remain silent
Just the fact that the New South Wales Parliament considered revoking the right of its citizens to remain silent when being questioned by police is mind boggling enough in itself. That this bill actually passed, and was paid for with the standard thirty pieces of silver that is the due of those who betray the people that they are supposed to be representing, is unbelievable. Regardless of the motivation there can never be sufficient reason to compel anyone to be a witness against themselves and by undermining this fundamental human right the NSW Liberal Party have revealed their truest intentions. If ever there was a time when we should be using our much vaunted freedom of speech to speak out against abuses of our freedom then this de-evolutionary step towards autocratic tyranny is one.

Experience hath shewn, that even under the best forms [of government] those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

Thomas Jefferson, Preamble to a Bill for the More General Diffusion of Knowledge, Fall 1788

The Unspoken Truth


Regardless of what they might think, Australians have no right to either speak freely or to remain silent enshrined in the Australian Constitution. The only mention of anyone with freedom in that document is the freedom that Her Majesty Queen Elizabeth has to veto any laws that are passed by the elected Parliaments of the Commonwealth of Australia which displease Her. The reality is that any respect for our rights to either speak our minds or hold our tongues is more conceptual than actual.

This tacit assumption is based on the age old right of Britons to remain silent when being examined by a court. The origins of the right to remain silent harks back to the sixteenth century when the judicial and investigative arms of the legal system were separated for the first time. The increased use of force to coerce a ‘confession’ caused these sorts of statements to be viewed largely with suspicion and the right of silence was introduced as a judicial response to the corruption or the legal process that forced confessions entail. This right to silence spread from the courts to general police interrogations as well.

Currently, people that are being interrogated by the police or examined during a trial have the right under a variety of State and Federal Crimes Acts and Codes to refuse to answer questions that are put to them. The crux of this is that judges are not allowed to direct juries to draw a negative inference from this lack of willingness to testify. This new legislation allows judges and juries to take a negative view of people that exercise their option of remaining silent. As Greens MP David Shoebridge said of the decision, it is hard to imagine a more fundamental attack on the basic workings of the criminal justice system.

The Doublespeak of Silence

Since 1972 Australia has been a party to the United Nations International Covenant on Civil and Political Rights. This international treaty was drafted to protect the basic human rights of everyone on Earth including the right to life, choice of religion, freedom of speech and the freedom of assembly. At the time of its signing the covenant was designed for emerging Third-World nations to pattern their own national constitutions on, making it a sort of general yardstick by which the democratic intentions of a ruling regime government can be measured. Article 14, part 3 guarantees that people who are accused of a crime receive a fair hearing. Point 7 of this part of the article states quite clearly that everyone shall be entitled “Not to be compelled to testify against himself or to confess guilt“.

The avowed motivation of the NSW Parliament in pushing this edict through the Upper House is to give The Powers That Be more power to deal with the problems that outlaw bikie gangs have been causing. It is hard to understand how the government of NSW needs to infringe upon the rights of every law abiding citizen to enforce adherence of a minority of society to already existing laws. The politicized gibberish that NSW’s top cop Andrew Scipione spouted in support of the legislation claimed that this was about “trying to level the playing field” and which ended by him stating that he didn’t think that it “trashes civil liberties” is just Liberal Party doublespeak for “we can’t operate fairly so we are going to compel you to cooperate with us- or else”.

The Solution

So why, you ask, should we give a flying fuck if a few bad arse bikie gangs are coerced into confessing their crimes? After all, the world will be a safer place with all of the bad guys securely in jail. Why shouldn’t we give the cops all of the power that they say that they need to prosecute them for their heinous lives of crime and sedition?

Rights are fragile things and our most basic right, freedom is too vital to surrender without a struggle. In 1963 John F. Kennedy made a speech that addressed the issue of the importance of equal rights for everyone. He said; “The rights of every man are diminished when the rights of one man are threatened“. Even if those rights are being abused by a bad arsed bikie whose hobby is shooting up a rival gang’s clubhouse. No matter how dangerous these baddies may seem they are still far less dangerous than a government that has acquired too much power by restricting the rights and freedoms of its citizens.

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.- Thomas Jefferson, to Isaac H. Tiffany, 1819


Originally posted to David Mattichak's blog.

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