Published in The Australian (Sydney), 28 October 2026
In April 1638, guards in London tied a young man to a cart and whipped him through the streets to Westminster. There they locked his head and hands in a wooden frame for all to see. When he kept talking to the crowd, they gagged him.
His name was John Lilburne, and the authorities had arrested him for spreading leaflets that attacked the church’s bishops. Yet the whipping was not punishment for the leaflets. It was for refusing to swear an oath demanded by the Star Chamber, a royal court that sat without a jury.
That oath made prisoners promise to answer every question truthfully before they even knew what they were accused of. Their choices were thus to lie under oath, give evidence against themselves or refuse and be punished. Nobody, Lilburne later wrote, should be forced by an oath to answer questions against himself.
Three years later the House of Commons branded his sentence unlawful and Parliament shut the Star Chamber down.
Over the next century and more, the right to silence became a fixture of English law. Today, with few exceptions, suspects in New Zealand can refuse to answer police questions, and a jury may not treat silence as proof of guilt.
Anyone who watches American crime shows knows the line “You have the right to remain silent”. When, in 1966, the US Supreme Court ordered police to tell suspects about that right, the judges cited Lilburne’s case. Police in Sydney, London and Auckland do the same.
Nearly four centuries on, New Zealand’s National Party, the largest party in the governing coalition, wants to punish silence again. On 18 October, eight days before advance voting opened, Justice Minister Paul Goldsmith promised a new crime. Any adult present when a child is killed, or in the lead-up to the death, would face up to ten years in prison for not telling police what they know.
The debate is two decades old. In 2006, three-month-old twins Chris and Cru Kahui died of brain injuries in Auckland. At first their wider family refused to help police. The twins’ father stood trial for murder, and a jury found him not guilty. Nobody has ever been convicted of the killings.
No wonder the idea of making silence a crime appeals. A former children’s commissioner, the government’s chief victims adviser and several lobby groups have all argued that the right to silence should give way in child abuse cases.
Yes, in such houses someone knows how the child died. Still, the right to silence was never mainly about protecting the guilty, who have every reason to keep quiet anyway. It is there for the frightened and the weak, who can be pushed into telling police whatever police seem to want to hear.
In November 1989, Terri Friesen, then 21, was convicted of the manslaughter of her seven-week-old daughter. She had told police she shook the baby to stop her crying.
She later said the confession was false. In 2002, her former partner was convicted of the same killing. He had twice confessed to police. Yet her own conviction stood until 2018, when the Court of Appeal finally quashed it.
Now imagine being an adult who has killed a child. Ten years for keeping quiet is a far better deal than life for murder. Instead, the pressure may fall hardest on someone with less to hide, perhaps a mother who lives with a violent man and fears what he will do if she talks.
New Zealand already has part of the answer to this legal problem. Since 2012, an adult in a child’s household who knows the child is at risk of serious harm from someone else must take reasonable steps to protect that child. If they do not, they can go to prison for up to ten years.
South Australia’s 2005 criminal neglect law goes even further. It also covers carers who should have known of the risk. And it lets a jury convict a carer of neglect even when it cannot tell whether that carer struck the blow or stood by while someone else did.
Introducing the bill, Attorney-General Michael Atkinson told parliament: “The Bill does not change the current law about the right to silence.”
In 2006, a three-year-old boy died of injuries prosecutors could not pin on either of the two adults looking after him. Both pleaded guilty to criminal neglect. One went to prison for ten years, the other for six. When a child dies, the maximum is now life, which is rather tougher than anything National proposes. But the South Australian law does not punish anyone for staying silent.
New Zealand’s National Party has left the drafting of its proposed law until after the election. It says it will work out the details with “legal experts”. Those experts would have plenty to do because there are many questions and details to be considered.
Is an adult asleep in the next room “present”? How far back before the death does the duty go? And does a muddled or half-told story count as holding back?
Police investigating the 2023 death of Baby Ru, a Lower Hutt toddler, already have accounts from all three adults they regard as persons of interest. But they say the accounts are incomplete. Would this count as silence?
Even the age limit is not settled. National’s announcement says the offence covers children “12 years and under” in one paragraph and “under 12” in the next. Both versions are still on the party’s website.
As it happens, retiring National MP Andrew Bayly put forward a fully drafted bill in July that would make it an offence not to report assaults on children. His bill carried a three-year maximum and a defence of reasonable excuse. It was still waiting for a first reading when Parliament broke up for the election. There was no time to debate it, but that did not stop Goldsmith’s quick campaign promise.
Back in 17th-century England, Lilburne refused to answer questions before he knew the charge. But in 2026 New Zealand, voters are being asked to support a new law without being told how it would work.
