Scrutiny of Acts and Regulations Committee

Inquiry into the Right to Silence, Final Report

Chairman's Introduction

[Back to Table of Contents]

I have great pleasure in presenting to Parliament the Report on the Right to Silence Inquiry conducted by the Scrutiny of Acts and Regulations Committee.

The Committee was given a reference to review the Right to Silence by the Attorney-General on 11 November 1997. The reference was made by Order of the Governor in Council pursuant to section 4F(1)(a)(ii) and section 4F(3) of the Parliamentary Committees Act 1968. The Committee was requested to make its final Report to Parliament by the first day of the 1998 Spring sittings. On the Committee’s request, the deadline was extended to enable the final Report to be presented before the end of the 1998 Spring sittings.

In December 1997, the Committee established a Right to Silence Sub-committee comprising Mary Gillett MLA, The Hon. Peter Katsambanis MLC, Murray Thompson MLA, Tony Plowman MLA and myself as Chair.

The inquiry was not about the right to silence in the primary sense, that is, whether the actual right to silence or right against self-incrimination should be retained. Rather, the issue was as to the inferences which might be made at trial in the event of a suspect exercising the right to silence either pre-trial or at-trial.

To stimulate debate within the community and to focus discussion on the relevant issues, the Sub-committee prepared and widely distributed a detailed Issues Paper.

The Sub-committee employed Mr Andrew Palmer, Senior Lecturer from the Law School at The University of Melbourne, to draft the Issues Paper which was published in June 1998. In all, 45 written submissions were received. The Sub-committee was impressed with, and very much appreciated, the quality and depth of advocacy evident in these submissions.

Those who made written submissions were invited to make an oral presentation to the Sub-committee at a public hearing, held in the Legislative Council Committee Room at Parliament House, on 18 and 19 August 1998. In total, 29 oral presentations were made to the Sub-committee. Again, the Committee was impressed by the high standard of the presentations. The Sub-committee also consulted with senior members of the judiciary in Victoria, to ensure that the evidence was complete in respect to the at-trial application of the right to silence. The Committee greatly appreciated the involvement of the Victorian judiciary in assisting the inquiry.

The Terms of Reference specifically requested the inquiry to examine the relevant sections of the Criminal Justice and Public Order Act 1994 (UK). The Committee also believed that it would be beneficial to look at similar provisions found in the Criminal Justice Act 1984 (Ireland). One of the most profitable aspects of the inquiry process was the visit by four members of the Sub-committee in June 1998 to the United Kingdom and the Republic of Ireland. The visit was important for comparative purposes, as we very much wish to recommend the introduction of procedures that are in line with international best legislative practice in criminal law and procedure. The Sub-committee appreciates the assistance and information given to it by the distinguished organisations and individuals visited during the overseas part of the inquiry. We feel certain that all common law jurisdictions benefit from the exchange of ideas and experiences relating to the operation of our respective legislative regimes.

The Committee expresses its gratitude to Mr Andrew Palmer for his dedicated work in preparing a lucid and helpful Issues Paper. The high standard of the written and oral submissions received during the inquiry reflects well on the quality of the Issues Paper. The Committee also expresses its thanks to Mr Palmer for his valuable contribution in assisting the Committee prepare its final Report.

I thank my colleagues on the Committee and the Sub-committee for their professional contributions during this difficult and complex inquiry. I am grateful for their support and for the harmonious way in which we undertook the inquiry, approached our deliberations, and made our recommendations.

I also thank the staff of the Scrutiny of Acts and Regulations Committee: Mr Andrew Homer, Senior Legal Adviser, who organised the Sub-committee’s overseas contacts and accompanied it on the mission to the United Kingdom and the Republic of Ireland; Mr Simon Dinsbergs, the Assistant Executive Officer; Ms Nadia Krivetz, Legal Officer; and Mr Richard Kings, Office Manager, for their professional advice and support, for organising the public hearings, and for their valuable assistance and suggestions in the preparation of the Issues Paper and the final Report.

I commend the Report and the Committee’s recommendations on the Review of the Right to Silence to the Parliament of Victoria.

Peter Ryan, MLA
Chairman

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria