Right to silence
Here are some general rules when it comes to your right to silence:
You have a right to remain silent to protect yourself against self-incrimination.
The right to silence applies to everyone, including witnesses, suspects and arrested persons, and the right applies whether you are in police custody or not.
If you are in custody, you have additional rights, such as the right to an interpreter if English is not your first language.
You have the right to refuse to answer police questions or give an interview. Your refusal to participate cannot be used against you later, with the Exceptions listed below.
As a general rule, you should not answer any police questions or give an interview without legal advice, except under the Exceptions listed below.
If you are asked to answer questions or give an interview, you can say “I want to exercise my right to remain silent and to obtain legal advice.”
Remain calm and polite during any interaction with the police.
If you decide to stay silent, make sure you do not answer any further questions.
There is no such thing as an ‘off-the-record’ conversation with police.
Anything you say to the police could be recorded.
Anything you say to the police could be used as evidence against you in court, or contribute to a police officer’s decision to arrest you.
Exceptions
Police have the power to approach you and ask for your personal details (full name, current address, date of birth, business address) if the police officer has reasonable cause to suspect that you have committed, are committing, or are about to commit an offence, or that you may be able to assist in the investigation of an offence or a suspected offence. It is an offence to refuse to provide this information (Summary Offences Act 1953 s 74A, Maximum penalty: $1,250 or imprisonment for 3 months).
It is an offence to provide a police officer with false identification information, so give your correct full name, current address, date of birth, and business address if asked.
If you are a ‘juvenile’ (ie you are 17 or younger), you should state your age.
If a police officer asks questions about the identity of the driver of a vehicle at a particular time, or on a particular occasion, it is an offence to refuse to answer, or to provide false or misleading information (SOA s 74AB, Maximum penalty: $1,250 or imprisonment for 3 months).
You can ask the police why they are asking for the information. If you are not sure whether you must answer a question, ask the police: “I want to exercise my right to silence. Is this a question that I have to answer?” You might want to ask to see their identification and take note of their name, rank and station.
Depending on the circumstance, such as when a protest is underway, it may be difficult to ask the police for this information or it may be annoying for them to comply with the request.
Taking a photograph or video is usually a good idea if you are concerned with a particular action of a police officer.
ASSERTING YOUR RIGHT TO SILENCE
If the police ask you for answers about your organisation and not for the purpose of any of the Exceptions above, direct police to the designated police liaison person if there is one. Even if police try to chat with you casually, do not speak with them.
When asserting your right to silence, you can say “No comment”, “I am not going to speak to you”, “I would like to speak to a lawyer”, or something similar.
On the other hand, polite interactions can sometimes calm a situation down, and can be observed by members of the public, which might change the mind of the police or the members of the public. For example, you could politely say, “I am doing this for the environment and for people like you and your children.”
Once you have asserted your right to silence, it is a good idea to stick to that decision, otherwise it can later be used against you by suggesting you are dishonest or telling half-truths. If you choose to answer some questions but not others, or stop answering questions once they become uncomfortable, this may seem suspicious and could give the impression that you are being dishonest or misleading the police.
The best thing to do is to exercise your right to silence and appear cooperative. Be calm, polite, and respectful.
The police might try to interview you straight away, but this is not essential. Sometimes you will be released from custody more quickly if you choose not to answer any questions because you will not need to be held while they conduct the interview or wait while your friend or lawyer attends.
Some people in a protest wish to use the interview process to explain why they are determined to protest for the issues that concern them. If you decide to do this, speak with a lawyer before you are arrested to determine whether this will help you or your protest.
Last revised: October 2021