Rights During Police Questioning
Written in plain language for general understanding. This is educational content, not legal advice. Based on Commonwealth Acts of Parliament, federal regulations, and official government guidance.
What is this right?
Part IC of the Crimes Act 1914 (Cth) (sections 23F to 23S) sets out your rights when police question you about a Commonwealth offence. Before questioning begins, the investigating official must give you a caution explaining that you do not have to say anything, but anything you do say may be used in evidence.
Your right to silence is a fundamental common law right recognised by the High Court of Australia. You cannot be penalised for refusing to answer questions, and your silence generally cannot be used against you in court.
Police interviews for Commonwealth offences must be electronically recorded where practicable (s 23V). If the interview is not recorded, the prosecution must explain why, and the court may refuse to admit the evidence. This protects you from false or inaccurate records of what was said.
There are limited exceptions where you must provide your name and address — for example, under customs and border legislation or specific regulatory offences.
When does it apply?
These rights apply whenever AFP officers or other Commonwealth investigators question you about a suspected federal offence.
- The caution must be given whether you are under arrest or simply being questioned in circumstances where you are not free to leave.
- It applies to all people in Australia, including non-citizens.
- Special protections apply to Aboriginal and Torres Strait Islander persons (s 23H), who are entitled to communicate with a legal aid organisation and have an interview friend present.
What should you do?
- Listen to the caution carefully — make sure police have given it before questioning starts.
- Say: "I exercise my right to silence and wish to speak to a lawyer."
- Confirm that the interview is being recorded — ask if it is not.
- You may provide your name and address if lawfully required, but you do not need to answer further questions.
- Stay calm and repeat your request for a lawyer if police continue to ask questions.
What should you NOT do?
- Don't feel pressured to fill silences — police may use long pauses to encourage you to talk.
- Don't lie to federal police — providing false or misleading information to a Commonwealth officer is an offence under s 137.1 of the Criminal Code Act 1995.
- Don't agree to an "off the record" chat — there is no such thing in a police investigation.
- Don't answer "just a few questions" without legal advice, even if police say it will help your situation.
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