Removal of right to silence 'radical and unwarranted'

The removal of the right to silence that is proposed in the Search and Surveillance Bill is 'radical and unwarranted' the Justice and Electoral Committee was told today. Speaking to his submission, Canterbury University academic, David Small, said the creation of any situations where New Zealanders lose their right to silence 'muddies the waters' and because instead of knowing they have an absolute right to remain silent, people will be wondering in what circumstances they are allowed to remain silent.

Dr Small said that civil rights were 'only as strong as they were exercisable' and this Bill not only undermined important rights but also made remaining rights harder to exercise and defend.

Dr Small also pointed to the ways that technological advances have already compromised people's privacy rights. He commented in particular on the common police practice of taking and searching cell phones which contain significant amounts of information that is very personal and often quite sensitive, with newer phones even allowing access to personal email and social networking accounts.

He said that this degree of intrusion used to require a court-issued warrant but is now regularly carried out, particularly against young people, often on suspicion of very minor offences.

'A Bill setting out search and surveillance rules should be limited existing powers, rather than extending them further', he said.

'The digitisation of our lives has not been matched by the introduction of new safeguards and that is one of the things that a Bill like this should do,' he said.

Dr Small, who has been monitoring the expansion of the powers and resources of state surveillance agencies since he caught two SIS agents breaking into the house of a fair trade activist in 1996, said that the actual risks faced in New Zealand were comparatively low and did not warrant a further expansion of powers.

Rather, he argued, there needs to be a thorough overhaul of the agencies that are supposed to be monitoring state surveillance and enforcement agencies and holding them to account. In particular, he cited the Inspector-General of Intelligence and Security, the Police Complaints Authority and the Parliamentary Intelligence and Security Committee.

ENDS

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