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Do You Have The Right To Remain Silent in Australia?

The right to silence in Australia is recognised by state and federal courts as a fundamental common law right.

You probably recognise the phrase “I plead the Fifth”.

It is a go-to line for countless characters on American television who have just been arrested. This phrase refers to the Fifth Amendment of the United States Constitution, which protects US citizens from self-incrimination by guaranteeing them the right to silence.

The right to remain silent in Australia works a little differently. Here, we discuss the right to remain silent in Australia, as well as whether you should remain silent if being questioned by police.


Do Australians Have The Right To Remain Silent?

Unlike Americans, Australian citizens are not able to rely on a constitutional right to silence.

Instead, the right to silence in Australia is recognised by state and federal courts as a fundamental common law right. ‘Common law’ refers to a body of law accumulated from past tribunals, which judges can use to determine how to proceed in cases similar to these previous tribunals.

In Queensland, the right to silence is codified in Section 397 of the Police Powers and Responsibility Act (PPRA), which states that a person has the right to refuse to answer police questions unless they are required to by legislation.

If you are arrested, the police will ask you “informal” questions before asking whether you want to be interviewed or make a written statement. What the right to silence means is that you do not have to answer these informal questions, participate in an interview or make a written statement.


What Is The Point Of The Right To Remain Silent In Australia?

The Australian government defines the privilege against self-discrimination as ‘a basic and substantive common law right, and not just a rule of evidence.’

The purpose of the right to remain silent in Australia is to place the onus on the prosecutor to find the accused guilty of a certain alleged crime. The right to silence presupposes that if a trial occurs, it is up to a jury to determine the guilt or innocence of a party based on the facts of the case rather than the silence of the accused.

In fact, case law has stated that if a jury is told that the accused has exercised their right to silence, the judge should immediately direct the jury to understand that the accused exercising that right cannot be interpreted as evidence of guilt.


Should I Remain Silent When Being Questioned By Police?

If you are brought into a police station to be questioned, always seek legal council from a solicitor before disclosing potentially incriminating information.

Bear in mind that anything you disclose during unofficial or official questioning by the police can be used as evidence against you in court.

If you have been found committing an offence or police have reasonable grounds for suspecting that you have committed an offence, it is important to note that there are some basic questions police may ask you that you are legally obligated to answer. These include:

  • Your name and address
  • Your place and date of birth
  • Information regarding an incident you’ve witnessed


Have More Questions Regarding Police Questioning?

At Guest Lawyers, our expert lawyers are here to help you understand your legal entitlements, including your right to remain silent in Australia. As one of the leading criminal law firms in Brisbane, we will guide you through the legal process and ensure the best possible outcome is achieved.

If you are in the process of being charged with an alleged crime, or are about to go into the police station for questioning, do not hesitate to get in touch with us, either via email or our phone line on (07) 3236 0266.