5 / 4 / 2024

Exceptions to the Right to Silence in New South Wales

Generally, a person who is under investigation in New South Wales has protections against self-incrimination and providing investigators with information and admissions that otherwise might assist with the investigation levelled against them.

This protection is known as the right to silence – however the principle is not airtight and there are statutory exceptions to the right to silence in certain circumstances.

Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Police in NSW can require the following information to be mandatorily provided:

  1. Disclosure of a person’s identify who was a driver, passenger or owner of vehicle that may have been involved in an indictable offence (section 14) (also known as a “Form of Demand”)
  2. Disclosure of a person’s, including a suspect, information to access data held on a computer and for the person to assist with the copying or conversion of data (section 76AM); and
  3. Disclosure of a person’s, including a suspects, information or assistance that would enable an officer to access data held on a digitally encrypted device (section 80M).

Like the NSW power regarding electronic devices, the Commonwealth power under section 3LA of the Crimes Act 1900 (Cth) requires the person to provide any information or assistance to access data held on a computer or data storage device.

A Police Officer in NSW has parallel powers of a LEPRA Form of Demand under Chapter 7, Part 7.2 of the Road Transport Act 2013 (NSW) which can require a driver of a vehicle involved in any infringement of the Road Transport Act to provide their name, home address, and any other information that will lead to the identification of the driver to investigating police.

Prior to complying with any proposed decision to circumvent your right to silence, it is important that you seek legal advice from a criminal defence lawyer to ascertain whether the circumvention is a lawful exercise and what the penalties are for not complying.

Jordan Portokalli, Senior Lawyer