Explaining the right to silence under Anunga: 40 years of a policy about language

ABSTRACT It has long been recognised that the right to silence ‘caution’ is difficult to communicate, particularly with some Aboriginal suspects. In a landmark 1976 decision Anunga, the Northern Territory Supreme Court provided guidelines about how police should explain the caution to Aboriginal suspects. As a result, cautions often develop into conversations where police explain the right and test understanding of it. The caution has also been translated into Aboriginal languages, revealing further understandings of its meaning. However, despite strenuous attempts to communicate the caution, it remains confusing for some people. This article reports on linguistic analysis of actual language used to talk about the caution, identifying several ways that communication fails, and revealing more questions than answers about what the caution means. It then argues that policies underlying the caution, and the history of the caution text, are not clear enough to resolve questions about what the caution is supposed to mean and achieve. The caution policy unfortunately creates the appearance of fairness while systematically disadvantaging some Aboriginal (and other) suspects who are partial speakers of standard English and/or not familiar with settler Australian legal culture.