Do You Have A Right To Silence In Australia?

You’ve just been pulled over by the cops, smoking gun in your hand, blood stains all over your clothes and a bag full of shiny diamonds on your passenger seat. Are you actually obliged to say anything to the local constabulary?

Photo: Leonard John Matthews
That particular case sounds more likely to happen in a Hollywood blockbuster, but then a lot of the “law” that people assume applies comes from watching TV and movies and hearing “you have the right to remain silent” over and over again.

You can only see this so many times without starting to assume it might apply everywhere. This was also somewhat inspired by last week’s Ask Lifehacker question on fines given out by the police, where several commenters suggested that keeping your trap shut might be the best option open to you when in potential legal strife.

So what’s the actual legal picture in Australia?

Note: Once again, I’m not a lawyer, and for the purposes of more in-depth legal advice, I’d suggest you contact one.

The right to silence is a quite basic part of common English law, and, as a result, it’s a part of Australian law as well. What you hear in most US TV shows and movies are what are commonly called “Miranda Rights”, and while it’s a little different here in Australia, the basic idea is that you can’t be compelled to incriminate yourself, or be concerned that not giving information over to the authorities be viewed as any kind of admission of guilt; indeed, if a case does come to a jury trial where a right to silence has been invoked a jury should be instructed that it can’t be inferred as any kind of underlying guilt (although that’s in the process of change in New South Wales).

It’s not law yet (as far as my own limited legal research brain can see; any Lifehacker lawyers are more than welcome to pop in to clarify if I am indeed incorrect), but there are proposals to modify the right to silence laws, and with them the warning that suspects receive to something akin to

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court.”

The basic idea is that the judge would be able to rule on what to tell the jury if there’s a reasonable case for silence or not. That’s controversial, to say the least; there’s an excellent piece over at The Conversation that goes into the implications of weakened silence rules, as well as noting that they may not pass certain constitutional tests.

So what to do in the above Hollywood hypothetical? Probably flip the bird to Robocop and drive away with a squeal of tires, but then that’s Hollywood for you. Here in Australia you do have the right to silence, and the right to use it, although that shouldn’t mean that you should automatically refuse to co-operate with any inquiry on principle; being deliberately obstinate to people isn’t always the best approach, and staying silent doesn’t mean you won’t end up in court anyway.

Lifehacker 101 is a weekly feature covering fundamental techniques that Lifehacker constantly refers to, explaining them step-by-step. Hey, we were all newbies once, right?

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