“I Plead the Fifth”: Australia’s Version of the Right to Silence

Many people are familiar with the concept of the Australian Constitution, the foundational legal document that outlines the structure and powers of the Federal Government. It delegates authority between three arms of government:

1. Legislative: Parliament (makes laws).
2. Executive: Government departments and police (enforces laws).
3. Judicial: Courts (interprets laws).

The Constitution also delineates the distribution of power between the Commonwealth and the States and Territories.

Unlike the United States, where individual rights are explicitly protected by the Constitution, Australia’s Constitution does not contain a general bill of rights. While it guarantees some distinct rights, such as freedom of religion and the right to vote, it does not specifically enshrine a right to silence. Instead, legal protections like the right to silence are governed by State and Territory Legislation, as well as common law principles.

The Right to Silence in Australia:

In Australia, the right to silence is not a constitutional right but is primarily protected under State Legislation and Common Law. Under Section 89 of the Evidence Act 1995 (NSW), the law stipulates that, with some exceptions, an unfavourable inference cannot be drawn from a party's refusal to answer questions or provide information during an investigation. This provision ensures that an individual’s silence during questioning cannot be used against them.

However, Section 89A of the same Act allows for an unfavourable inference to be drawn in certain circumstances. Specifically, if during official questioning in relation to a serious indictable offence, a defendant refuses or fails to mention a fact they could reasonably be expected to provide, that fact may be used to draw an unfavourable inference. This only applies in criminal proceedings for serious indictable offences and when the below safeguards are followed:

1. A special caution must be given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and
2. The special caution was given before the failure or refusal to mention the fact, and
3. The special caution was given in the presence of anAustralian legal practitioner who was acting for the defendant at that time, and
4. The defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.

Contrary to popular belief, the right to silence could be more sophisticated than it may initially appear and it is not always in your best interests to have a legal professional physically with you whilst you are under arrest in Police custody. It is crucial to first communicate with a lawyer by way of telephone and seek the appropriate legal guidance throughout the arrest and interview process to ensure that your rights are fully protected.

Exceptions to the Right to Silence

There are further exceptions to the Common Law right to silence, namely there are specific offences for failing to provide information to Police, such as an offence of failing to provide details of a driver or passenger’s identity in circumstances where Police believe a vehicle that you were either driving, a passenger of or own was used in connection with an indictable offence; Section 14 of the Law Enforcement (Powers and Responsibilities) Act 2002.

This is not an absolute outline of circumstances where your right to silence is impugned, and there are many more instances where you have an obligation to be forthcoming with authorities. The nuances of the right to silence in Australia can be complex and are subject to various exceptions. As a result, it is essential for individuals to seek legal advice if they are questioned by police or otherwise required to provide information.

ED Legal can guide individuals through the process, ensuring their rights are upheld and that they fully understand the potential legal implications of their actions.