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In Australia, the right to remain silent is an important legal safeguard, though it differs from the well-known Miranda Rights in the United States.

Common law and legislation in Australia set out that refusing to answer police questions generally cannot be used against you. However, there are some exceptions in serious criminal matters.

If police wish to speak with you, it is important that you understand your rights, including when and how the right to silence applies. You should always obtain legal advice before interacting with law enforcement.

Is there a right to remain silent in Australia?

Australia has a right to silence, although there are exceptions to this.  

Section 89 of the Evidence Act 1995 makes clear that refusing to answer police questions cannot be used against you.

When under arrest, the police can ask informal questions prior to taking a written statement or an interview. The right to silence protects you from having to answering these questions, participating in an interview or in a written statement.

Exceptions

There are some exceptions to the right to silence in Australia, including:

• being suspected on reasonable grounds of being the owner, driver or passenger of a vehicle used in connection with an indictable offence (Section 14 Law enforcement (Powers and Responsibilities) Act 2002);
• being charged with a serious indictable offence and having a lawyer present during questioning (Section 89A Evidence Act 1995); or
• being compelled to give evidence at a crime commission. This may be during serious criminal matters where witnesses can be forced to answer questions by the Australian Crime Commission or other state commissions. Refusing to answer questions here is an offence.

What Are Miranda Rights?

The Miranda Rights, originating from a 1966 U.S. Supreme Court case involving Ernesto Miranda, is a statement read by police to individuals being arrested to inform them of their rights. This process is known as being “Mirandized.” You may have watched this happening in Hollywood films and TV, but Miranda Rights apply only in the United States. The Miranda Rights read as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand the rights I have just read to you?”.

Why is there a Right to Silence?

The right to silence ensures the burden of proving guilt lies with the prosecution. This is because in a criminal case, it is not for the accused to prove their innocence.

Do You Have to Answer Questions from Police?

Generally, you do not have to answer questions from police. If the police have reasonable grounds to suspect that you have committed an offence, you are usually only obligated to answer questions asking for your name, address, date of birth and place of birth.

However, there are some exceptions to this. It is important to obtain legal advice from a specialist criminal lawyer before answering questions any questions from police. Your answers can be used as evidence in court even if the questions were asked informally.

What Questions will Police Ask?

Police will want to ask you the following questions when investigating:

• what happened,
• confirm whether you were involved or find out who else was involved
• show you evidence such as photos or CCTV footage,
• confirm whether you can identify any suspects.

While they have a right to ask questions, you are not required to answer them, or provide any information.

Should I Do an Interview with Police?

You should not participate in an interview with police unless you have received legal advice from an accredited specialist criminal lawyer.

A lawyer will need to speak to you about your circumstances and what you are likley to say in an interview. Often, participating in an interview with police can result in you providing police with the information they require to charge you. You are likley to give answers that are not helpful to your case when you do not know the specifics of the allegations against you or what evidence police have.

Other Rights Against Police in Australia

Some of the rights accused persons have in Australia include:

• The right to medical attention
• The right to contact a family member or friend
• The right to contact a lawyer
• The right to have a lawyer present during your interview
• The right to an interpreter