Constitutionally Heeding the Right to Silence in Australia

Australian law continues to recognise exceptions to what is colloquially referred to as the right to silence, the most recent example of which is the Evidence Amendment (Evidence of Silence) Act 2013 (NSW). This article will consider whether arguments might be made that, at least in some contexts, infringement of the right to silence is contrary to the requirements of the Australian Constitution. Courts in other countries around the world have recognised the right to silence in circumstances where parliaments have purported to limit it. The application of their approaches to the Australian context will be considered, acknowledging jurisdictional differences where appropriate.