Flemington & Kensington Community Legal Centre
Police Powers and My Rights
These are answers to some of the common questions people have about police powers. The answers provided here are legal information only and are being constantly updated. For specific advice speak to a lawyer. If you have questions that are not answered here, please email us at firstname.lastname@example.org subject police accountability, and we will try and provide an answer on this site.
NEW: On 16 December 2009 new laws allowing police to move on (question 28) and conduct arbitrary searches within designated search areas (question 9) were introduced.
You have rights!
• You have the right to remain silent.
• You have the right to be treated with dignity and respect.
• You have the right to be told if you are under arrest and the reason for it.
• You have the right to speak to a solicitor and a friend before police interview you.
• You have the right to be in public places and with whom ever you want to be with.
• You have the right to privacy.
• You have the right to participate in public life and the freedom to express yourself.
Q.1 Do I have to go to the police station if the police ask me?
You must accompany police if:
(a) You are under lawful arrest or
(b) You are detained under the Family Violence Protection Act 2008 provisions. Police can keep you for up to 6 hours under this Act or longer if they apply to a Court or
(c) You are lawfully detained under s10 of the Mental Health Act to be taken to a medical practitioner for assessment.
Q.2 If I am arrested do I have to answer any questions?
(a)You only have give your name & address.
There is no obligation for you to provide police with any further information than your name and address, even if you are in the company of a parent or independent person. Anything you say or do may be used against you in court, so try to stay calm and speak to a lawyer before giving up your right to silence. The easiest thing to say is "no comment".
Q.3 If I am under 18 years old, in what circumstances can the police interview me?
(a) In the presence of a parent or guardian.
(b) In the presence of an independent adult person
Police can interview you without a parent or an independent person if it is urgent or to prevent the escape of an accomplice or the destruction of evidence.
Police may try to talk to you outside this interview. Remember you do not have answer their questions. Also remember discussions with police are never “off the record”. If you are in any doubt say, “no comment”.
Q.4 If I don’t speak English, or prefer to be interviewed in another language, do the police have to get an interpreter for me?
(a) Yes, the police must arrange for an interpreter before the interview.
Q.5 If arrested do I have the right to ring a lawyer?
(a) Yes, and and you have the right to ring a relative or friend.
You have the right to ask for Legal Advice.
If you are under 18, the police must give you a number to call a 24 hour Legal Aid lawyer before the interview if you ask for it.
Q.6 If arrested how long can the police keep me in custody?
(a) The police can keep you in custody for a “reasonable time”. (Speak to a lawyer if you think the time you have been held was too long).
Police must do one of three things:
1. Release you without conditions
2. Release you with conditions (police bail)
3. Take you to a Magistrate or arrange for a Bail Justice to attend the station so that you can ask to be released.
Q.7 Can the police take my fingerprints?
(a) The police can use reasonable force to take your fingerprints if you are 15 years or older and the police believe on reasonable grounds that you have committed a serious offence.
(b) If you are under 15, only if your parent or guardian is present and agrees.
(c) If you are 9 or under, police cannot take your fingerprints.
Q.8 Can the police take my photo?
(a) Police may take your photograph for the purpose of identification at a trial, but have no power to use force if you do not consent. McPhail (1988) 36 A Crim Reports 390. This is different to the fingerprinting powers.
(b) If police take your photo while you are in public this impacts on your right to privacy and potentially other rights. You should talk to a lawyer about this.
Q.9 In what circumstances are the police allowed to search me?
(a) Police can search you, your bags or your car without a warrant if they suspect on reasonable grounds you have drugs of dependence, weapons, volatile substances (if you are under 18), or a graffiti implement. They can also search you if you are the target of an authorisation or in an authorised zone under state terrorism laws. From time to time Parliament passes laws specific to events that increase police search powers.
(b) Police can search you if they have a search warrant that permits the search of persons.
(c) Police can search you if they have arrested you, but only to the extent necessary for safety or the location of items connected to a crime which they have reasonable grounds to suspect are in your possession.
(d) From 16 December 2009 - the police have new search powers under the Control of Weapons Act that allow them to search any person or car in a planned or unplanned designated search area without grounds to suspect that person may be carrying weapons. The Police must give 7 days notice of a planned designated search area by publishing the notice in the Government Gazette and a Newspaper. The Chief Commissioner may declare an area to be an unplanned designated search area at any time in writing. Search areas can be designated for 12 hours at a time. Within designated search areas, anyone can be searched without reasonable grounds. It has been acknowledged by the Government that these powers are incompatible with human rights as they arbitrarily infringe the right to privacy.
The search conducted is for the purpose of identifying, seizing and detaining weapons.
Q.10 How can the police search me?
There are two kinds of searches police can do:
Searches are extremely invasive and humiliating. Searches have the potential to engage many sections of the Charter of Human Rights. Where they are not lawful, they are an assault and in the case of strip and particularly cavity searches, a sexual assault. For this reason, the law only permits them where there are lawful grounds and then only to the extent necessary. Your privacy is a key issue in searches. As a result searches must be conducted in private and where at all possible by some as of the same sex as you. Where your sex is not determined, it is up to you to decide.
If police do not have the power to search you, they can do so with your written permission. This means you can and should say no if you feel at all uncomfortable.
Q.11 If a police officer asks me where I am going:
(a) You have the right to refuse to answer, you can say “no comment”, you can walk away.
(b) You can answer if you choose to.
(c) You have the right to ask why they want this information.
(d) You can ask for their name, rank and badge number and police station they are from. If police are in a car you should write down the number plate.
Q.12 If Police stop and question me on the street I can:
(a) Remain calm and polite
(b) Say no comment
(c) You can answer their questions if you want to but you are under no obligation to.
(d) Ring a friend
(e) Be assertive. If you wish to go you can say “I need to go, no comment”.
(f) Give them you name and address if they have told you they think you might be a witness to an incident.
Police can ask you for your name and address if they reasonably suspect you have committed an offence, are carrying prohibited items (drugs, weapons, etc.), you are driving a car (or motorbike, bicycle), on public transport without a ticket, at a hotel or somewhere else alcohol is being sold, or they believe you have information that could assist in the investigation of a serious crime. You must give your name and address in these circumstances. It is a criminal offence to refuse to give your name and address, or to give false details to the police. You are under no obligation to say anything else. You can say no comment.
Q.13 When have I been arrested?
(a) When a police officer says, “you are under arrest” and tells you clearly the reason for your arrest.
Q 14. When can police arrest me?
(a) Police can arrest you if they believe on reasonable grounds you have committed an indictable criminal offence or if they see you committing an offence. (indictable offence is an offence like theft or burglary)
Q 15. When can police search my house?
(a) When they have a search warrant.
(b) Without a warrant when they believe on reasonable grounds you have committed a serious indictable offence and they want to arrest you. (serious indictable offences are offences that have a maximum penalty of 5 or more years jail).
Q.16 What should I do if I am arrested?
(a) Remain calm and peacefully accompany the police to the police station
(b) Ask to speak to a lawyer before talking to police
(c) Ask for receipts for any property they take
(d) Ask why you have been arrested, and get the names and badge numbers of the police officers. The police must also tell you their name, identification number, police station and rank, if you ask. You can ask them to provide these details in writing.
Q.17 When can police handcuff me?
(a) After they arrest you, police can handcuff you but only if it is necessary to so in order to detain you or stop you hurting someone or damaging something. If you are calm and comply with their requests, there is no reason to handcuff you.
Q.18 What should I do if I am charged?
(a) Make an appointment to see a lawyer at your local community legal centre as soon as possible.
Being charged means being given a summons to attend court. You will get a piece of paper with a date to attend court and list of the things police say you have done. If you don’t attend court you can be arrested or if the charge is a summary offence the court can make an order in your absence.
Q19. When can police use force against me?
The use of force is a last resort. Police should attempt all other options before using force. They have guidelines on other options they should use.
(a) Police can use reasonable force to arrest you,
(b) Police can use reasonable force to stop you from committing an indictable offence.
(c) Police can use reasonable force to obtain your fingerprints.
(d) Police can use reasonable force as self-defence.
(e) Police must consider other options before using force against you, such as communication, negotiation and containment.
Q 20. What is reasonable force?
Reasonable force is proportionate force; it is not more force than is absolutely necessary. If you are not resisting arrest, police should not use any force at all against you.
Q.21 What should I do if I believe the police have treated me unfairly?
It is not ok for police to treat you without respect and dignity. It is not ok for police to use excessive force to arrest you. It is not ok for police to call you names. It is not your fault if these things happen.
Here are some things you can do:
(a) Write down what happened.
(b) Speak to a community legal centre and ask to put in a complaint
(c) Get the officer’s badge number, Rego number, and description.
(d) Take a photo, video record the incident if possible
(e) Tell your friends and family
(f) Speak to your youth worker
Q. 22 What can I do at the time if a Police officer is harassing me or using violence without reason?
This is a very difficult thing to manage. Each situation calls for different tactics. Some ideas:
(a) Remain calm
(b) Ring a lawyer/youth worker/friend at the time.
(c) Video/photograph/record the event.
(f) Show them your empty hands.
(g) The law gives you the right to use proportionate force to defend yourself from an unlawful attack: R v Galvin  VR 733
(h) Keep breathing.
(i) Let them know they are breaching your rights. "You have no right to harass me. I will report you. Stop stalking me."
(j) Ask them for their name and station.
(k) Ask them for the legal basis for what they are doing.
(l) Ask for a copy of the warrant if they are at your door.
(m) Name what they have done, "You have just told me to get back to Africa. This is racist. I have full rights to be here. Don't ever tell someone to get back to Africa again."
(n) You could try and survey them: "How often do you racially abuse black people? Is this a daily thing for you?"
Q 23. What should I do if my friend has just been arrested?
Here are some options:
(a) Tell a youth worker
(b) Ring a community legal centre and ask a solicitor to ring your friend.
(c) Ring Victoria Legal Aid (Tel: 9269 0234).
(d) Ring the police station to find out if he/she is being held there and ask to speak to him/her. (Ring 1223 and state the police station name).
(e) Go down to the station and wait for him/her to get out, take a parent, lawyer or youth worker with you or another friend.
(f) Help your friend make an appointment to see a solicitor.
(g) Tell their brothers and sisters and family members.
(h) Go to court to support them.
Q.24 What can I do if I am injured, or police have acted unlawfully or unethically or have violated my rights?
Each situation will be different so these are just some points to think about:
(a) You should go to a doctor as soon as possible. It is essential you ask the doctor to record not only your visible injuries, but also all pain, nerve damage, cartilage damage, tingling, numbness, soreness, aches, stress levels, sleep patterns and thoughts. If you are in custody, you have the right to see a forensic medical officer, or go to hospital.
(b) If making a complaint at the time you are in custody is safe, you can complain immediately. If you are concerned about your safety do not complain straight away. Your safety is the most important thing. There are two issues to consider in making a complaint to police straight away. Firstly, a record of an early complaint is useful, but not essential if you wish to take legal action later on. Secondly, an immediate complaint could mean that police are alerted to the issue that you will complain and may lay additional charges on you, OR they may collude in writing up their notes to cover themselves OR they may subject you to more violence. None of these things are lawful.
(c) You should should exercise your right to speak to a solicitor before you are interviewed. You should tell your solicitor if you have been assaulted. If the police are present, you should ask them to find you a private space. Tell your solicitor if the police are present.
(d) If you are under 18 you can complain to the YRIPP independent person who should see you before the police interview you, or if your parent or guardian is there tell them.
(e) You should tell a youth worker/friend/community member as soon as possible.
(g) You should take photos of your injuries and photos of where the incident happened. Write it down as soon as you can.
(h) Keep the contact details of anyone who might have witnessed the incident.
(i) You should see a solicitor as soon as possible. There is a community legal centre somewhere near you.
(j) If you are having trouble sleeping, concentrating, are in fear or distress you should ask your doctor or youth worker or solicitor to help you find help.
NB Before you leave a police station, you will be asked to sign the Attendance register/book – by signing the book you are agreeing that:
• the police have not taken anything from you
• you have been treated fairly
• you have been given your police 'charge sheets'.
You don't have to sign the Attendance Register/ Book if you don't want to.
If police have taken property from you, they must return anything which is not going to be used as evidence against you in court, or anything which you are legally entitled to have. Take your time and check to make sure that all your belongings are there as it will be more difficult to complain after you have left the police station if something is missing and you have already signed the register. If some of your property is missing, report it to the desk sergeant at the police station and refuse to sign the register until it is returned to you or you are told why it has not been returned. You may want to speak to a lawyer before deciding whether to sign or not.
Before release from a police station you will usually be asked to sign a form or a book to show that the police treated you fairly and that they acted properly according to the law. If you have any concerns or complaints about your treatment (physical or verbal abuse, bad conduct, loss or damage to your property, etc), do not sign this form/book, as your signature means that you were happy with your treatment. Be polite and say “I do not wish to sign”.
If you feel under pressure to sign or police insist that you sign the book before they will release you, say “I would like to speak to my lawyer before I sign anything”. Make sure you tell your lawyer that police are trying to make you sign something against your will, and ask that they come to the police station if you feel unsafe. If your lawyer cannot come, ask them to contact someone you trust (a friend, family or community member) to come to the police station to support you.
Q.25 What are my legal options?
Under international law, where you allege the police have violated your rights you are entitled to:
There are four potential avenues to seek compensation:
2. Taking Civil Action against the police.
3. Making a complaint to the Victorian Human Rights and Equal Opportunity Commission or Australian Human Rights and Equal Opportunity Commission
4. Writing directly to the Victoria Police for compensation under their asset management guidelines in the Victoria Police Manual.
In order for your complaint to be investigated and lead to discipline/prosecution, you may need to make a complaint.
If you complain to the Office of Police Integrity, it is most likely your complaint will be forwarded to the Victoria Police. A present in Victoria, 97% of complaints are investigated or otherwise managed by police. This system does not meet international standards.
Speak to a solicitor about these options. They can help you through any investigation process.
(g) Family/Friends (also see the links page).
Q.27 I am organising a protest, is there anything I need to know?
For advice on protests go the the Activist Rights Website by the Fitzroy Legal Service.
There is also the Human Rights Monitors website in NSW that has helpful information on protests and much more.
Q.28 Move on Powers
Police can give a person a direction to move on from a public place if they suspect on reasonable grounds that a person is or is likely to:
a) breach the peace
b) endanger the safety of another person
c) injury a person or damage property or be a risk to public safety.
Failure to comply with the direction is an offence. Police may not issue a direction to a person who is protesting, picketing or publicising their view about a particular issue (such as speaking out or carrying a banner).
• It is very important that you do not sign anything without speaking to a lawyer first.
• If you are having trouble understanding the police or your lawyer, you have the right to get an interpreter who can explain things to you in your own language.