Law Society alarm at erosion of rights

21:33, Nov 13 2010

The president of the Law Society has expressed concerns about the partial removal of the right to silence under proposed laws, describing it as the result of a trend to right-wing populism.

The Search and Surveillance Bill will give greater powers to authorities investigating complex financial and organised crime, including the introduction of "examination orders", compelling people with knowledge of serious fraud-related offences or gang crimes to speak to police. Interviewees will retain the right to remain silent if to speak would incriminate themselves.

Law Society president Jonathan Temm said he was not comfortable with the right to silence being curtailed.

"We believe the right to silence is an important fundamental legal right, and any time there is an erosion of that right, it has to be on very strict and balanced terms," he said.

"You need to do that in a controlled and balanced way and not just part of a kneejerk populist reaction because you think it's worth votes."

Police would be able to apply the new examination orders in the investigation of cases punishable with a sentence of five years in the case of business-related crime, and seven years in the case of non-business-related organised crime. The bill also allows police to issue "production orders" similar to those used by the Serious Fraud Office, which would compel individuals or organisations to hand over information relating to certain crimes.

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Temm said the erosion of civil liberties reflected "a general shift in our law-making to the right".

He said the swing to populist law and order policies were "driven by sectional interest groups who are currently controlling the debate", and said the Law Society hoped for a cross-party agreement to make the justice system off-limits as a political football.

"Most lawyers would have a view that `sensible sentencing' is all wrong. We've been doing it for a decade, prison numbers have shot up, recidivism hasn't dropped and neither has the crime rate. So what are we doing?"

Last week, Labour's shadow attorney-general, David Parker, wrote to Justice Minister Simon Power seeking cross-party agreement on the bill, requesting that the media's privilege be protected, the powers of the Serious Fraud Office be wound back, and to raise the threshold where production and examination orders could be made.

Power said the bill contained adequate protections of the right to silence, "while giving police an important tool to investigate serious offences, such as serious and complex fraud, and those committed by gangs".

"For instance, a person may refuse to answer a question under an examination order, or refuse to provide documents under a production order, if the answer or document would incriminate that person, or is subject to a recognised privilege – including legal professional privilege, medical privilege, religious privilege, and the right of journalists to protect their sources," he said.

Sensible Sentencing Trust spokesman Garth McVicar said his lobby group would gladly admit to having influenced the shift to giving state authorities more powers.

"We've been driving the change and will put up our hand and accept responsibility for that," he said. "The reason we started Sensible Sentencing was we felt we had already gone too far down the liberal path."

Sunday Star Times