What powers do the police have? What rights do I have if I am arrested? What is the best course of action to take if I am arrested? Do I have any constitutional rights? Can the police search my house or car? Can a security guard arrest me?
In all of the Australian States and Territories, the powers given to police are set out in enacted laws and they are also contained in the common law. They are set out in broad outline only. This is in contrast to countries like the UK and the USA where the powers granted to police, and the citizen's rights in such matters, are set out in great detail. Each State and Territory in Australia has enacted its own set of laws on the subject. By and large, they are much the same in all States. However, if you want to find out your precise rights in any State or Territory, you should consult a lawyer who practises there. As a general rule, if the police overstep their powers and you suffer mental hardship or financial loss, you are entitled to sue them for compensation.
You may be aware that the Australian constitution is founded on the American constitution. The American constitution contains a Bill of Rights. We have all seen on television persons complaining that their constitutional rights have been violated. You may be surprised to learn that the Australian constitution confers very few rights on the individual. About the only rights conferred are a) freedom of interstate trade and travel and b) freedom of religion. The freedom of interstate trade does confer some useful rights. For example, the selling of X-rated videos is banned in all Australian States but is legal in the two Territories. Because of the right to freedom of interstate trade, it is legal for any person in the ACT or Northern Territory to sell X-rated videos by mail-order to persons residing in the States.
In general, persons can refuse to answer questions put to them by the police. This is entirely legal. However, some States require any member of the public to give his name and address to a police-officer if so requested. Only in court proceedings are persons required by law to answer questions.
A high standard of proof is required to convict in Court in criminal cases. The prosecution must prove its case beyond reasonable doubt.
WHEN CAN I BE ARRESTED?
The general principle is that a person can be imprisoned only when he has been sentenced to imprisonment by a Court. However, there must be some mechanism to make sure that a person appears in Court for his trial. Consequently, the law allows arrest and imprisonment to make sure a person appears at his trial.
As a matter of general principle, a policeman should not arrest a person if serving a summons on him, which requires him to appear at his subsequent trial, would be sufficient. However, if the policeman cannot obtain the person's true name and address, or if the person is obviously a transient who is likely to abscond, then the policeman would be justified in arresting the person rather than proceeding by summons. For serious crimes, it would also be normal to arrest the person. This is the situation with regard to offences against federal laws in Australia. It is also the situation with regard to all offences in Britain. However, all Australian States and Territories have passed laws empowering the police to arrest a person found actually committing an offence. This means that a person found to be committing a minor offence such as exceeding .05 can be arrested even though there is every ground for believing that he would appear in court to answer charges if summonsed.
A person can also be arrested who is suspected on reasonable grounds of having committed a serious crime. If reasonable grounds do not exist, then the arrested person can later bring a civil action for compensation against the arresting policeman. An arrested person can do likewise if the policeman should have proceeded originally by summons and not by arrest.
Police can enter private premises to arrest someone they believe on reasonable grounds to have committed a serious offence or to arrest an escaped prisoner.
WHAT CAN THE POLICE DO IF I'M ARRESTED?
Briefly, in general, they can a) take you to the police station, b) search you, c) take photographs, d) take fingerprints and e) take samples such as tissue, semen, blood, hair etc. They can detain you in the "lock-up" until such time as they can bring you before a magistrate.
WHAT SHOULD I DO IF I'M ARRESTED?
1) Remain calm. Do not resist arrest.
2) Ask the reason for your arrest. You have a legal right to this information. You cannot be arrested merely so as to ask you questions.
3) Make a written or mental note of the name or serial number of the arresting officer.
4) Request to make one phone call. This should be to your lawyer or a reliable friend. You have no absolute legal right to have this request granted but it will normally be granted.
5) Request to see a lawyer, if you have not already done so. You can see a legal aid lawyer if you cannot afford a private lawyer. Again, you have no absolute legal right to have this request granted but it will normally be granted.
6) Request bail. You have a legal right to this if you fulfill the requirements. In some cases, for minor offences, the police can grant bail. In most cases, you must wait in the cells until the morning. You will then be brought before a magistrate. It is the law that excessive amounts of bail cannot be demanded. You may have to put up some money and a friend may also have to stand surety for you. Other conditions may be that you report at intervals to the police station and that you do not contact witnesses.
7) Refuse to answer any questions or sign a statement until you have seen a lawyer. You have a legal right to do this. The only exception is that you must provide your name and address to the police. Otherwise, you have the right to remain silent. If you do decide eventually to answer questions or make a statement, do everything possible to ensure that your lawyer or a friend is present. Again, you have no absolute right to have your lawyer or a friend present. At a later stage, you should remember that even conversations with other inmates of the prison can be produced at your subsequent trial.
Before the police arrest you, they must "caution" you. This tells you that you are not obliged to say anything but if you do, it may be taken down in writing and used in evidence against you. Make a note of when the "caution" was administered to you. This is important because any statement made by you, or words said by you, before the "caution" may be excluded from being given in evidence at your later trial.
Likewise, under certain circumstances, a confession to the crime may not be admissible in evidence at your trial. A confession will not be admissible at the trial if it was not made voluntarily. If you are intimidated into signing a confession, it will not be admissible. If a person in authority holds out an inducement to sign the confession and you sign it, then it will not be admissible at your trial. For example, if the officer-in-charge says to you "As soon as you have signed the confession, we'll let you see your wife", then that would constitute an inducement.
The police have no power to "detain you for questioning" or to "help with their inquiries". If you are not under arrest, you are free to go.
CAN THE POLICE ENTER OR SEARCH MY PREMISES OR CAR?
The police can always enter your premises with your consent. However, if you withdraw consent, they must leave immediately. The police can only search premises with a warrant. If the police have a warrant, they can break open the premises to enter them if it is necessary. If the "raid" later proves to be unfounded, they generally pay compensation for any damage done. However, if criminal charges are later laid against any of the occupants, they generally do not pay compensation. The police must confine themselves to the terms of the warrant. If they are looking for specific goods e.g. a firearm, then they are not entitled to rummage through your private papers. In any case, they are not entitled to ransack your house looking for evidence of unspecified crimes. Once they have found what they are looking for, they must leave. Always examine the warrant beforehand and note what they are searching for. Have witnesses to the proceedings.
The police can also enter premises without a warrant to arrest someone believed on reasonable grounds to have committed a serious criminal offence or to arrest an escaped prisoner.
The police can search a vehicle for drugs.
CAN A SECURITY GUARD OR STORE DETECTIVE ARREST ME?
A citizen can carry out "a citizen's arrest" for any crime he sees taking place or to prevent a breach of the peace. The offence must not be trivial. The arrested person must be handed over to the police as soon as possible. This is the basis of the power of a security guard or store detective to arrest people.
WHAT POWERS DOES THE AUSTRALIAN TAXATION OFFICE HAVE A) TO REQUIRE INFORMATION AND B) TO SEARCH PREMISES?
The Taxation Office may require any person or business, in relation to tax matters, to 1) provide any information it deems relevant and 2) to provide any documents it deems relevant. It may conduct an audit of any person's affairs. However, it does not have access to information or documents held by lawyers on behalf of a client. Also, the Taxation Office has said that it will not seek to access auditor's papers or papers prepared by a public accountant which give tax advice to a client.
The Taxation Office has an unrestricted right of access to all buildings, places, books, documents and papers. This means that the Tax Office can examine records in any building. The Tax Office does not need a search warrant. In exceptional cases, they can carry out a surprise raid. They can gain entry by force, if necessary. They can open safe- deposit boxes by force, at a bank or elsewhere, if necessary. They are entitled to photocopy all documents which they find but they cannot take the documents away with them. They are even entitled to make reasonable use of the tax-payer's work-space, photocopier, phone, light, power and other facilities. They can demand information as to where documents are located. However, the Taxation Office has said that it will give advance warning when six or more tax auditors are due to descend on a business. It will also delay any searches to allow legal advice to be obtained and for any claim of legal professional privilege to be claimed.
Large fines are prescribed for refusing to comply with any of the Taxation Office's demands.
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