Right to silence diminished in NSW

The Evidence Amendment (Evidence of Silence) Bill 2013 has passed both houses in NSW parliament. The Bill, aimed at making trials more efficient, will amend the Evidence Act 1995 so that in proceedings for a serious indictable offence, an unfavourable inference may be drawn from the  defendant’s failure to mention a fact during official questioning that is later relied on by the defence in the proceedings.

Under the current system, the right to silence and the presumption of innocence mean that the defendant is not required to answer police questions or prove their innocence - instead, the state must prove guilt. The suspect is cautioned, "You have the right to remain silent. Anything you do say will be taken down and may be used in evidence against you."

The NSW Government has claimed that this right to silence is often abused. In an August 2012 media release, Police Minister Mike Gallacher said the change would be welcomed by police and the community, as “the right to silence can be exploited by criminals and failing to answer police can impede investigations." The change will see the "scales of justice...tilted towards common sense." The government initially flagged the reform last August in the wake of a series of drive-by shootings in Sydney's west.

While the Premier's department have said that the the proposed changes reflect reforms made in Britain and Wales in 1994, critics have pointed out that the UK has human-rights safeguards which are not part of the law in NSW or Australia.

Opponents of the Bill have said that it will have a negative impact on longstanding human rights, as well as diminishing the efficiency of pre-trial procedures. Secretary for the NSW Council for Civil Liberties, Stephen Blanks, has said the right to remain silent under police questioning and the privilege against self-incrimination were recognised international standards  "which lie at the heart of the notion of a fair procedure".

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