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

Many people are familiar with 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 enforce laws.
3. Judicial: Courts interpret 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 such as the right to silence are governed by State and Territory legislation and 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), subject to exceptions, an unfavourable inference cannot be drawn from a party's refusal to answer questions or provide information during an investigation.

However, section 89A allows an unfavourable inference to be drawn in certain circumstances. If, during official questioning about a serious indictable offence, a defendant fails or refuses to mention a fact they could reasonably be expected to mention, that failure may later be relevant where the statutory safeguards have been satisfied. Those safeguards include:

1. A special caution given by an investigating official who had reasonable cause to suspect the defendant had committed the serious indictable offence.
2. The special caution being given before the failure or refusal to mention the fact.
3. The special caution being given in the presence of an Australian legal practitioner acting for the defendant.
4. The defendant first being allowed a reasonable opportunity to consult privately with that legal practitioner about the general nature and effect of the special caution.

Contrary to popular belief, the right to silence can be more sophisticated than it initially appears. It is important to obtain legal advice before deciding whether to participate in a police interview.

Exceptions to the Right to Silence

There are further exceptions to the common law right to silence. Specific offences may require a person to provide information to police, including requirements concerning the identity of a driver or passenger where police believe a vehicle was used in connection with an indictable offence.

This is not an exhaustive outline of circumstances in which a person may be required to provide information. The law is subject to important exceptions and the appropriate response depends on the particular situation.

If police want to question you or you need advice about your rights during an investigation, see our Criminal Law services or contact ED Legal.