Being asked to speak with police can be unsettling, even when you have done nothing wrong. Many people feel they must answer every question straight away. In most cases across Australia, that is not the law. Knowing your basic rights before the conversation starts can help you stay calm and make better choices.
This guide explains the right to silence, the details you usually must give and why free legal advice before an interview matters. It uses guidance published by Legal Aid NSW and Legal Aid WA. Each state and territory has its own police powers laws. The rules also change over time, so check the position where you live.
What the right to silence means
If you are a suspect or are being investigated, you generally do not have to answer police questions. You also do not have to make a statement or take part in an interview. Legal Aid NSW explains that you can simply tell police you do not wish to be interviewed. You can read more in its plain guide to the right to silence in New South Wales.
Police cannot treat your refusal to talk as proof that you are guilty. It is up to them to prove an offence. Legal Aid WA gives similar guidance for Western Australia. It says police cannot force you to answer and cannot use your silence against you later in court.
Saying “no comment” is a lawful way to use this right. Some people answer a few questions and refuse others. Legal Aid NSW warns that this mixed approach can make your situation worse. That is one reason to get advice before you decide what to say.
Details you usually must give
The right to silence has limits. In many situations police can demand your name and address. Refusing to give them, or giving false details, may be an offence. In Western Australia, Legal Aid WA says you must give your correct name, address and date of birth when asked.
There are other exceptions too. Legal Aid NSW notes that if your vehicle was involved in a serious crime, you may have to give details of the driver and passengers. If you are not sure whether a question must be answered, you can ask the officer. Legal Aid WA suggests asking a simple question such as “Do I have to answer?”
If police tell you that you must answer and you refuse or lie, you could be charged. So it helps to keep two things apart. Identity details are often required. Questions about what happened usually are not.
Anything you say can be used as evidence
Words spoken to police can end up in court. Legal Aid NSW says anything you say or do can be used against you or others. That includes identifying yourself or other people in CCTV footage. It can also be used in ongoing investigations.
Formal police interviews are electronically recorded, usually in an interview room at a station. Informal questioning may be written up in an officer’s notebook. Police may then ask you to sign those notes. Legal Aid WA advises against signing anything until you have had legal advice.
Police may ask you to go “on record” to state that you refuse an interview. Legal Aid NSW explains that this is itself an interview. You do not have to do it. You also do not have to be recorded saying anything at all.
Your right to speak with a lawyer
Legal Aid NSW states that anyone in police custody has the right to call a lawyer. In Western Australia, police must give you the chance to call one if you say you want a lawyer. Legal aid commissions in each state run free advice lines. These services can give you general guidance about interviews at no cost.
If you cannot reach a lawyer, you can tell police you will not be interviewed until you have spoken to one. Legal Aid NSW says you can refuse an interview at any stage, in custody or not. It also says refusing cannot be used to deny you bail. Nor can it count against you as being uncooperative.
Legal advice also matters after a charge. Court can bring costs that some people do not expect. Our article on court fees and compensation for people found not guilty looks at what happens if a case ends in your favour.
Extra protections for young people
People under 18 have added protections in New South Wales. A young person in custody has a right to a support person. Police cannot interview them unless that person is present. The support person must be an independent responsible adult, such as a lawyer or another trusted adult.
If the young person is 14 or older, they can choose who to call. If they are under 14, police ask a parent or guardian to attend. Police must also make sure a young person gets legal advice. Legal Aid WA likewise suggests that anyone under 18 asks for a trusted adult to be present.
Witnesses and people at the scene
Not everyone police speak with is a suspect. Legal Aid NSW says there is generally no legal duty to report a crime or give information to police. The exception is very serious offences, where failing to help may lead to a concealing charge. If you do give a statement, you may later be asked to give evidence in court.
Being near a crime can change your position quickly. Legal Aid NSW notes that if you were with people who committed an offence, you are likely to be treated as a suspect. In that case it suggests staying silent until you get legal advice. A short call to a free legal service is often the safest first step.
Staying calm and keeping records
How you behave during the conversation matters as well. Legal Aid WA advises against resisting police or acting abusively. If you are given a move on notice, read it carefully and follow it. You can be arrested for being in an area the notice covers.
If you want to complain about how police treated you, note the officer’s name and number. Get legal advice about the complaint. If you were injured, see a doctor and keep a record of the visit.
Police questions and other legal matters
A police matter can sit alongside other legal problems in your life. Separation is one example, and our checklist of matters to attend to when preparing for divorce covers the practical side. Business owners face their own legal duties too. Our guide to the responsibilities of a company director explains some of these.
Overseas property brings its own set of risks. If you are buying in Indonesia, read our piece on using a nominee to buy a Bali villa. In each case, the theme is the same. Get advice early, before you sign or say anything you cannot take back.
Frequently asked questions
Do I have to answer police questions?
In most cases you do not have to answer questions about what happened. You will usually have to give your name and address. Some states, such as Western Australia, also require your date of birth.
Can my silence be used against me in court?
Legal Aid NSW and Legal Aid WA both say police cannot treat silence as proof of guilt. The prosecution still has to prove the offence. Laws can differ between states, so check where you live.
Can I get free legal advice before a police interview?
Yes. Legal aid commissions in each state run free phone advice services. If you cannot reach a lawyer, you can tell police you will not be interviewed until you have spoken to one.
Should I sign police notes of a conversation?
Legal Aid WA advises not to sign anything until you have had legal advice. Signed notes may be used as evidence. A lawyer can tell you what signing would mean in your situation.
This article is general information only and is not legal advice. Laws and processes differ between states and territories and change over time. Please speak with a qualified lawyer about your own situation.
