To: The Hon. Barry O'Farrell MP, Premier of NSW
Save the Right to Silence
Please protect the Right to Silence and do not abolish this fundamental freedom. Please do not proceed with the changes announced in your Media Release on 14 August 2012, or any changes.
Why is this important?
On 18 Sept 2012, the NSW Attorney-General released an Exposure Draft of the proposed removal of the right to silence. Only 10 days have been allowed for public comment.
The Exposure Draft may be read at
Issues with the Exposure Draft include that:
# there is NO protection for vulnerable persons who are persuaded by the new caution to make disclosures without legal advice;
# the onus seems to be on an accused to prove he or she could not afford legal advice.
An individual's right to silence under interrogation from police has been a fundamental civil and human right recognised in our legal system since at least the 1700s and firmly accepted as part of Australian law since at least 1824. It is a right fought for and attained in reaction to Star Chamber trials, witch-hunts and other inquisitorial processes. It is an important aspect of the right not to incriminate yourself. This right is only meaningful if exercising it cannot be used against you. That is, if it cannot be said against you at any criminal trial that you must have had something to hide or your defence should not be believed because you did not explain yourself to police when arrested and questioned (cf Petty v. The Queen  HCA 34; (1991) 173 CLR 95).
Reasonable reductions of this right already require drivers to identify themselves to police and for accused to give fair notice before trial of any alibi defence (so the prosecution is not ambushed and has a chance to test that defence).
Now the Premier of NSW, the Hon. Barry O'Farrell MP, plans to abolish the right to silence by permitting adverse comments to be made if an accused has not fully disclosed his or her defence when questioned by police.
This plan has been announced without community consultation, without evidence of any need for it and against the clear recommendations of the NSW Law Reform Commission and the Australian Law Reform Commission.
Removal of the protection in Britain in 1994 was balanced by a guarantee of immediate access to free legal advice and representation at every police station. In NSW, Legal Aid is very limited. An arrested person must usually arrange a private lawyer at their own expense and many are questioned without legal advice or a lawyer present. People who decline to give a written statement may agree to talk to police without realising the video tape (ERISP) will be used in evidence against them, including of their body language in how they answered a question (or did not answer it).
It seems the impetus for abolition has come from police concern about the failure of victims and witnesses of drive-by shootings and bikie crime to assist police. But this change has nothing to do with victims or witnesses: it only affects accused persons when they are arrested. Arrested persons may be shocked, scared, confused, vulnerable and alone. Often they have no real idea of what the police are investigating. They do not get to see the evidence they are being asked to 'answer' under interrogation. Police are only obliged to reveal their evidence later, when the matter is going to trial.
As an ordinary, innocent person would you know how to answer evidence you haven't seen? Would you know how to talk to the police? The proposed change will mean a jury could be asked to disbelieve your defence if you did not give the explanation you later give at trial.
Please sign the petition to the Premier asking him to protect the Right to Silence and not proceed with any changes. Please talk to your friends and send links to this campaign.
“The Right to Silence” is a fundamental legal right, therefore the Australian Lawyers Alliance fully supports this campaign.
This petition is endorsed by the NSW Council for Civil Liberties.
How it will be delivered
I will print the petition and deliver it to the Premier's Office.