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.

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Comments

    I'm sorry officer....I didn't know I couldn't do that.

      Ignorance of the law has never been a valid defence.

        You're naive if you think that it hasn't worked...

          Doesn't matter if it worked or not. It's still not a valid defence and the officer is not obligated to excuse you just because you don't know what the law is.

        A 'fair and resonable' lack of knowledge, or misunderstanding of the law is a valid defence and is often used.

          No it's not. The police officer might choose to let you off and not arrest you. But once it goes to court, it's never a valid defence.

      face-palm !! .... don't you just hate it when people don't get jokes LOL @Dman reference DAVE CHAPPELLE

        Excuse me officer. Im a little high can you tell me where 3rd street is

    Let's not forget the numerous pieces of legislation which supersede the right to silence, such as to provide your name and address if a constable belives/suspects (depends on jurisdiction) you may be able to assist in the investigation of a crime (again, subtleties depend on jurisdiction), or the requirement of a registered owner to truthfully answer questions about who was driving a vehicle at a certain time (don't like it? don't drive).
    You still have the right to silence, but the police also have the right to arrest you and refuse bail...

      From my reading of it, you technically still have the right to silence in those circumstances (but as noted at the end, it's not always the wisest ploy).

        By that logic, I have the right to kill somebody and the police have the right to arrest me for it.

          You have the right to be a moron in your comments, and I have the right to call you one.

          Moron.

          It may not be a legal right (in fact it's expressly prohibited) but sure, you have the ability to do just that, and then weather the consequences.

          1- The law doesn't have to be logical (it frequently isn't)
          2 - Even if it did, your statement isn't logical (it's a false analogy)
          3 - But, yes, under certain extraordinarily rare circumstances - outside of wars - you can kill someone (in self-defence, is the most obvious circumstance)
          4 - Please tell me you are in no way connected to the legal process

            You have completely missed the point of my post.

              Actually, I think you missed the point of Alex's. I was just responding in kind.

                I remember when backpedaling wasn't shameless.

      Legislation is not Law. In order for police to enforce Legislation you must first consent to enter into contract.

        Well, actually, if something is legislated it is the law. You don't need to enter into any kind of contract to be bound by laws passed by parliament. The exception is if the law is unconstitutional, but that is really beyond the scope of most interactions with the police.

        This is either the most amazing trolling I've seen in a while, or the stupidest thing I've read in weeks. I... That claim is so far removed from reality that I don't have the faintest idea where to begin refuting it.

          There are some people in our society that believe they do not have to abide by the law unless you agree to enter into a contract with the state. They do ridiculous things like quote the Magna Carter and other pieces of legislation that have long since been superseded. They always lose in court.

          It's not trolling.. but think about what you sign when you get a drivers licence.. you are entering into a contract agreeing to that legislation in that state.. you don't have an Australian Federal Drivers Licence.. you have a State drivers licence, not issued to you by the courts nor the police but a legislative body of an Australian State Government.

          Last edited 01/02/13 4:25 pm

      (Originally meant to post this as a reply to the above comment but didn't work)

      No, I do not believe the police can refuse bail; to my knowledge the police can only choose to oppose or not oppose the bail application submitted by the defense in court.

      So the police have no actual direct power in matters of bail; their opposition to it is no guarantee that it will not be granted. So yes, you can be a dick to the cops and still get due process.

        In NSW it is the police (usually the Custody Manager) who makes the initial determination on bail. This is referred to as Form 7 bail refusal.
        If bail is refused the accused remains in custody until bail is redetermined by the court (magistrate), usually within 24hrs.

          That's quite interesting I did not know that. So I guess they can hold you for 24 hours regardless, this is just a formal way of stating why.

    Regardless of the law and the requirement for law enforcement offices to treat you as innocent until proven guilty. In general, keeping silent will trigger the natural human reaction of increased suspicion. Keeping silent usually gives the impression that you either don't want to incriminate yourself, or don't think you can tell a convincing enough lie to get you out of the situation.

      If officers treat you as innocent until proven (in a court of law) guilty, then they would never make arrests...

        Incorrect. Police officers treat you as a suspect. You can make a joke here about them not doing that in reality, and that's fine. But according to the law, any law enforcement representative treats you as a suspect and not guilty. Think of it as between guilty and innocent.

          Irregular verb time? "I'm innocent, you're a suspect, they're guilty as sin".

        It is the courts, not the police, who must treat you as innocent until proven guilty, as it is the courts which conduct the trials and make findings (either by judge or by jury) of innocence or guilt The police have the role of investigating and gathering evidence. Then they, or if the crime is sufficiently serious, the relevant prosecutor will have the task of proving your guilt in court.

        The presumption of innocence does not apply to certain types of offences; particularly where it would be difficult to prove the offence happened in court (i.e. random driving offences where no camera was operating) or where it would be an administrative nightmare and massive drain on the system to have to prove each offence (i.e. not having a public transport ticket).

    As an aussie citizen you "Retain the right to not incriminate yourself"

    meaning if they say, "did u just run though that one direction merch van with your mini-van?" you can say "I retain my right to not incriminate myself"
    :)

      But that's not a criminal act, it's an act of good will on behalf of the human race.

        It is both a criminal act and an act of goodwill ;) And if you hate One Direction enough, you might be willing to wear the consequences of that criminal act, because you might think that the good you're doing is sufficient to offset that. See also many environmentalist protesters, sea sheperd, etc.

        Last edited 30/01/13 4:27 pm

    Good luck with that.

    If you think you have the right to silence available to you, you probably do not need it.

    For one thing, for this 'right' to be useful, you first have to make it to court. But the application of the right is the very first thing in the process. You think you're gonna fight the whole legal process every step of the way? Secondly, I think that actually the inserted text basically reflects the true situation, rather than being a change to the existing situation: Australia has no legislated 'right to silence' and courts tend to weigh the absence of evidence, or the suddenness of produced evidence, just as they might weigh the evidence. Thirdly, the referenced legislation as well as being just legislation, is also, just NSW legislation -- doesn't work in other states. Fourth, police don't seem to me to be experts either at law, or at obeying legislation. They too have common law to consider. Legislation is one guide, but courts consider both precedence, and reason, when judging a case. In summary, relying on technicalities of law only ever works when you have not the law, but the lawyers, on your side. Most of us do not. Police are people too, and just as likely to find a grey area as you, the suspect. And no, suspects are not really considered as 'not guilty' if the police can clearly see in their opinion that a person is guilty ... they're just seen as possibly not criminally prosecutable. This legislation only adds about 8 words to the barrier between apprehension of a person and criminal prosecution ... not a significant margin. Here is a good overview of some case law which substantiates whatever right to silence we have, but this might be only federal cases, and states might differ: http://www.afp.gov.au/media-centre/publications/platypus/previous-editions/2000/march-2000/silence.aspx

    The practical things to consider when talking to police are that courts will automatically assume they are not lying, while you, if the suspect will be assumed to be possibly lying, both by police and by the court; and that if a police officer is requesting information from you, it will be assumed that they have a compelling reason in mind, and any objection or obstruction you provide will be very difficult to justify. Following from this is that if the police officer then becomes angry with you, they might easily justify this in any later investigation. Self preservation would probably suggest that you should assume that both (a) the police officer is completely honest and justified in their inquiry of you, and (b) the officer is completely dishonest and has no regard for the facts of the situation or your personal safety. In other words, be very polite and consider carefully what you say, and how your words and actions might affect your political and legal ability to defend yourself. Do not assume you can rely on your physical ability to defend yourself, since this will reflect badly in any later proceedings, and would probably ultimately prove to be a poor tactical choice.

    YMMV especially if you are part of an organisation with similar clout to the police force itself, but in that case, what are you even considering the right to silence for anyway?

      Australia has no legislated 'right to silence' and courts tend to weigh the absence of evidence, or the suddenness of produced evidence, just as they might weigh the evidence

      Legislated Right to Silence
      Whilst the right to remain silent is traditionally a common law right, the right to silence in the current system is now a combination of both the common law and legislation.

      For example, section 464J the Victorian Crimes Act 1958 states that nothing in the part of the Act to do with the questioning of suspects affects the right of a person to refuse to answer questions except where it is a (separate) offence to not provide answers. The same section states that the court has a discretion to exclude unfairly obtained evidence - http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s464j.html .

      So where a person can prove that any evidence they gave to the police was unfairly obtained (for example, there are strict rules as to the recording of interviews, when warnings have to be given, when rights have to be read, duress or other untoward pressure to give evidence), the court has the discretion to "throw out" the evidence.

      Ability to comment in court on the exercise of the right to remain silent

      As to the second part of the quote, there is a rather complicated rule (that applies to serious offences) on the ability to make comments about a failure to give evidence. Section 20 of the Victorian Evidence Act states: "The judge or any party (other than the prosecutor) may comment on a failure of the accused to give evidence. However, unless the comment is made
      by another accused in the proceeding, the comment must not suggest that the
      accused failed to give evidence because the accused was, or believed that he
      or she was, guilty of the offence concerned."

      So whilst attention can be drawn to the fact, i.e. "Simon has not given evidence during this trial." , the judge or other party is effectively prohibited from going on to say "The failure to provide evidence may be a factor that would suggest an inference of guilty".

      Final comment
      However, you are quite right in saying that these rights to silence and the privilege against self-incrimination are only small parts of the jury system. Where there is an entire body of evidence outside of the suspect's testimony proving that person's guilt, that person will be found guilty regardless of any evidence they give. For example, if there is a crystal clear video of the person committing the act, and there is no reasonable doubt as to 1. the identity of the perpetrator and 2. that the act actually happened, then no amount of silence from that person will override this compelling evidence. The right to silence is useful in some circumstances, but is in no way a failsafe protection against a finding of guilt.

        This is why many advocates for these types of things (silence) promote such things as car blackbox recorders and other recording devices to always be on hand.

        It's one thing to remain silent, it's another to prove what actually happened.

    here's a more qualified opinion (i am not a lawyer) about right to silence in Australia, http://www.cla.asn.au/0805/index.php/articles/articles/silence-that-speaks-volumes-1

    the part of the act that would change
    http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s139.html

    SMH article
    http://www.smh.com.au/nsw/right-to-silence-law-changed-20120814-2462p.html

    basically, my point is that this is only a tiny facet of the legal process, and while it sounds like a nice piece of candy if you feel unjustly oppressed under that system, it might easily sway things in the opposite direction for you if you try to use the touted right-to-silence, for instance, it is at this phase that police are deciding whether to let you off with a caution, and what if any charges might be laid. In many circumstances you might be interviewed as 'not yet a suspect', this part of the law applies only to the suspect. Non-suspects who do not assist police might be charges with obstructing police, or accessory after the fact, for instance. And so on and so on. It is reasonable for you to ask for your lawyer, but also others would think it reasonable you should assist in any way if the police have any reasonably urgent matters you can assist with -- even by clarifying in the negative. If you choose on policy or on whim to keep quiet without a really good reason, consider you risk being held to some degree responsible for whatever they lay at your feet.

    Any wonder why they're called "Bad cops, bad cops?"

    How do i edit a previous post? Anyway, i was slightly wrong about what would change in the legislation (I clicked the link in the text of the main article), it also makes a change to 'allow' consideration of the silence ... sometimes this might have a technical application to what occurs in the case and the briefing given to a jury, and yet also the holistic gut-feeling formed of the person's likely guilt or innocence is harly likely to be completely independent of a suspicious-looking silence, no matter what briefing has been given a jury... and judges are even more clever than jurors, for those cases which do not see a jury ... Sorry for taking up so much space ... I said something in a pub the other day about this, and feel obliged to defend that comment now online, since i see that technically we have something of a right-to-silence in Common Law, and now perhaps in legislation too. Maybe things were different in Qld in the last century. I was told then by people who should know and care, that there was not really a true right to silence, and that it was not prudent to try to exercise it except as i mention above -- ask for your lawyer, then give any reasonable help on matters that can't wait ... who even has a lawyer? But also as a journalist student, we were taught it was an ethical requirement to be prepared to sit in a prison cell for exercising our non-existent right to free speech or for protecting sources. :) Unrelated, direct experience I have since had with police has been that being arrested isn't much like what is shown on tv, and that they are frequently large, bullying, busy people, with no patience for how you think they should enforce the law. Trying to enforce procedural correctness sounds like a great way to get yourself more charges. ;-) Cops are as lazy as the next guy. That can work in your favour, as much as work against you, I guess.

    I'm rambling, but I think the 'right to silence' is promoted too much as a cure-all, and really does SFA for average joe. Media commentators should be more responsible, there is already too much fiction on tv. Yes, some technicalities might change, but the usefulness of a Right To Silence and its actual existence in Australia are debatable (perhaps on a case-by-case basis), because the 'justice' system is complex and police are not automatons.

      How do i edit a previous post?

      Click the little pencil icon in the top right hand corner of your post.

    Lets just introduce Judges and be done with it.

    "I AM THE LAW"

    I thought it was a judge, and not the police, who decides whether to grant bail or not; the police can only choose to oppose or not oppose the bail application submitted by the defense in court.

      In the first instance Bail is either Refused or Granted by the police following arrest.
      Bail can be granted at this point and a court attendance notice issued.
      If bail is refused by police the accused must be bought before a Magistrate before the rising of the court (generally within 24hrs) for bail to be redetermined based on submissions by the police prosecutors and the accused's defense.

    Jib Jabs Policeman instructional video :P http://www.youtube.com/watch?v=6t74RlzHXZE&list=PLACB4FFBD65C50374&index=3

    You are not obliged to give any information to the police, unless the act of refusing to do so warrants a crime. eg. being pulled over and refusing to produce a license.

    If they ever ask you anything specific just respond with 'no comment' regardless of if you have actually broken a law or not. I've been innocent of a few things were the police have tried to twist my words into an admission of guilt or attempting to word questions in a way to self incriminate myself.

    You very much not treated as innocent until proven guilty, especially if you have even a minor record. You are treated as guilty until proven innocent in terms of treatment by your every day police constable.

      In all states if you have committed any offence you are REQUIRED to provide your name and address as a minimum. But it also is a further offence if you fail to do so.

      As a 40-something guy who carries a camera, I have experienced this attitude from young constables too.
      It reflects poorly on them that they think it's ok to come at the public with what is often an aggressive and intentionally unnerving approach, just to see how we react.
      It's particularly bad when most of them assume they can demand ID. It's more than a little scary to think that many police don't seem to know such tenets of Law. Or use pretending not to know as what basically amounts to coercion and intimidation.
      This makes for some interesting related reading, nicely indexed too:
      http://www.austlii.edu.au/au/legis/qld/consol_act/ppara2000365/index.html#s18

    [comment made in error]

    Last edited 30/01/13 4:34 pm

    You have the right to silence, the police have the right to detain you until you provide your name and address, photo ID or someone who can vouch for who you are and where you live.

    The police also have the right to search you and your property if they have a reasonable suspicion you are acting strangely (say, not answering their questions honestly), this search is allowed to be a public strip search performed on the footpath.

    Quite simply, forget this for minor stuff like drug offenses and driving violations, the police have more than enough proof by the time you are stopped, mind you if it's a traffic accident, don't admit guilt to the police. This 'right to silence' is meant for those times they arrive at your door and take you down the station for questioning.

    It should be you have the right to be silent, if you disagree with this right, your ass will get beat.

    I am intrigued that no one has pointed out that our right so silence is something that has been enshrined in the Westminster Common law. We also have a presumed innocence is supported in our law as well. It also covers that we do not have to prove our innocence and any admission of guilt is purely voluntary.

    Some things to note:-
    Spousal privilege does not exist in Australia (wife/husband silence). That is an American law and circa 2012 supreme court codified this fact.

    NSW state government (im not sure if they succeded) were trying to change the law for some unspecified offenses that a defense HAD to be given then and there or else a judge can/will rule 'adverse inference'. Please note this would only be used IF you are charged with an offense as far as i can tell.

      Actually, the original post mentions both the common law origins and the NSW changes . . .

    There's only two types of people.. Uncooperative and apparently cooperative

    What would Cleaver say? If he wasn't otherwise detained?

    Can saying "No Comment" be construed as a comment, or is it better to literally keep the mouth shut and not say a word?

    I was pulled over for an RBT on Australia day. I played the no comment card to see what would happen (shits and giggles). I had not had anything to drink at all so I was feeling lucky about my chances that they will see through my bullshit at let me go.

    *pulls up to RBT*
    "Hello Sir, how are you tonight?"
    "No comment"

    *Big sigh of the Police officer*
    "It just a Random Breath Test, you have not been accused of anything"

    *Complete silence*

    "Have you had anything to drink tonight?"

    *Complete silence*

    "Have you done a random breath test before?"

    *Complete silence*

    "I Just need to know if you know how to do one!!?"

    *Complete silence*

    *Police officer pulls out breathalyser*
    "Please make one long continuous blow into the straw"

    *Obliges*

    *Obvious reading of 0.00*

    *Priceless look on Police officer's face of "WTH is wrong with this guy"*

    "I just needed to ask those questions to make sure you know how to do it properly"

    *Complete silence*

    "Do you understand me?"

    *Complete silence*

    "You are free to go Sir"

    *Drives Away*

    I'm surprised they didn't drug test me or ask for ID to see if I have any outstanding warrants, etc.
    I don't know if "no comment"/complete silence satisfies a suspicion or if they even need a suspicion to do those things?

    Anyway nothing happened of it, I just feel sorry for them that sometimes they have to put up with idiots like me. Next time it might not go so well if I try it again, they might decide to do a full roadworthy on the car and other time consuming nitpicking processes like that.

      Funny story however that was actually pretty stupid, I'm sure you would of immediately regretted the experiment as soon as he said something along the lines of 'Step out of the Car'.

      Just consider yourself lucky he took more pity on you than suspicion.

    "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."
    1. exercising our rights strengthens and reinforces them
    2. the same commonsense that applies to ordinary relationships does not apply when you're confronted with an armed agent of the state on official duty.
    3. while staying silent won't keep you out of trouble, it might save you from digging yourself in any deeper.

    I've been advised by friends of a cop friend that the best response is total denial. This is confirmed by watching those police shows. Career criminals do it all the time but it may come unnaturally to most people to lie to the police but that's the best way to get out of a sticky situation. Even if you get 'caught out' in the end, it doesn't matter if you lied initially, it doesn't get used against you. When the evidence is stacked up against you, *then* you could make a full confession and they take that as cooperation and they even give you a lenient sentence, even when you've lied about everything up until then.

    I'm not a lawyer and I know enough to be fully aware of my legal ignorance.

    Having said that if you live in Victoria this guide by Legal Aid is a good summary of your rights regarding interactions with the police:
    http://www.legalaid.vic.gov.au/cle.police_powers_your_rights_in_victoria.pdf

    Bart (in Wiggum's police car): "Hey! A teleprompter!"
    On screen: "You have the right to remain silent *punch in belly*"

    -----

    Wiggum: "You have the right to remain.. umm.." (looks at teleprompter) "..silent? Is that right?"

    This article is now out of date for NSW where the SHooters party sided with the COALition and changed the law.... now if you remain silent it will be used against you... the presumption of innocence is no more.

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