Constitutionally Heeding the Right to Silence in Australia

Statutes are increasingly infringing the right to silence, effectively forcing a person accused of wrongdoing to answer questions by authorities, upon pain of penalty (or adverse inference). This article demonstrates that the right to silence has long characterised common law systems of justice, and is connected with the presumption of innocence. It is fundamental that it is the person accusing another of wrongdoing to prove their claims, without being able to force the accused to assist. This is increasingly at risk. The High Court should afford greater protection to the time-honoured tradition through Chapter III of the Australian Constitution.