Unlike in the United States, there is no constitutional
protection for the right to silence in Australia.
Rather, the fundamental centuries-old democratic principle that
a person's silence cannot be used against them at a later time
has developed through 'common law' – also known as
judge-made law – which are decisions made by the courts over
time, often in the interests of promoting the interests of
justice.
Until 2013, the right to silence was a fundamental component of
the criminal justice process in New South Wales, meaning for
example that the silence of a person of interest or suspect at the
police station or the decision by a defendant not to take the
witness stand, or not to incriminate themselves while there, could
not be used to draw adverse (negative) inferences or findings
suggesting their guilt.
