Arrest
The information below is general in nature, and does not substitute legal advice. For a (very) brief overview, see the bust sheet below.
Download single bust sheet or multi bust sheet (6:1 page).
The topics covered below include:
Being arrested
Seizures and searches of property
Your rights
Alternatives to arrest (ie request to leave, expiation notice, formal caution)
Under 18-year-olds
Before attending an arrestable action
Potential unrelated offences (eg jaywalking, public nuisance, hindering police)
Hindering and resisting arrest.
The police can arrest you if they reasonably suspect you have committed, are committing, or are about to commit an offence (an illegal act).
While the police may employ certain tactics, they must make it clear, by words or actions, that you are under arrest. If you are unsure, ask whether you are under arrest or are free to go. If not under arrest, you are free to go. If you are under arrest, you are not free to go until the police or a court releases you.
The police must not use excessive force when arresting you, but they can use force that is reasonably necessary, including using handcuffs or restraints.
The police can:
Arrest you without a warrant.
Arrest you without warning you first (but they often will warn you first).
Decide whether to arrest you and/or whether to charge you with an offence – either keeping you in custody or releasing you on bail. If you are charged (formally accused of a crime), you will receive a summons from the court advising when you must appear in court. The summons may also list the offence(s) with which you are charged, or you may be advised of these at a later date prior to the date when you must appear in court.
Detain you for up to 4 hours if you are suspected of committing a serious offence (which is an indictable offence or an offence punishable by imprisonment for two years or more (Summary Offences Act 1953 (SOA) s 78(10)).
A magistrate can grant the police power to detain you for a further 4 hours. The time spent in custody before being charged may be longer than 8 hours due to transport delays, time spent organising a lawyer, or any delay occasioned by allowing the person to receive medical attention (SOA s 78(2a)).
Refuse to offer you a phone call at the police station if they believe it might cause or contribute to offending or tampering with evidence (eg deleting footage from a mobile phone) (SOA s 79A(2)(a)).
It is an offence to give a police officer false information, so provide your real name, address, and date of birth if requested (SOA s 74A).
Before or instead of arresting you, the police may invite you to come with them or to answer questions voluntarily. If you ‘voluntarily’ choose to go with them (to a police station or elsewhere) or to answer their questions, you can still be arrested at any point. Remember that answering police questions is unlikely to work in your favour. Even if their questions seem harmless, or you are just having an informal conversation, or you feel that you might be able to just ‘clear things up’ - this is rarely the case and it is impossible to know the direction a ‘conversation’ may take.
It is an offence to resist arrest or hinder the arrest of other people (see below). If you think the arrest may be unlawful for any reason, such as the use of excessive force, you can raise this at a later stage. Try to remember exactly what happened, what reasons were given for your arrest, and the identities of the police involved, by ID number or a description. Write these details down as soon as possible.
Aside from having to provide your real name, address, and date of birth, you have the right to remain silent, regardless of whether you are under arrest, a suspect, or simply a witness. If you are arrested, it is recommended that you do not provide any additional information (even if you think it may help) without first speaking to a lawyer or having a lawyer present.
If you intend to remain silent, you can say “I will not answer any questions without a lawyer present”, except for providing your name, address, and date of birth. Apart from providing your name, address, and date of birth, do not answer any questions, even if they sound harmless and you feel pressured. Remember to be polite, even if the police are not.
You may have your photo and fingerprints taken, along with a cheek swab or finger-prick to obtain a DNA sample. You do not have the right to refuse a request for these simple identity procedures, and it is an offence to resist. Police can use reasonably necessary force if you refuse to cooperate.
If someone you know is arrested and invites you to support them during a police interview, be aware that you might not be given time alone with the arrested person. Police may want you to be silent during an interview. Your role is to support your friend. Be polite but assertive. Usually, it is best to remind the arrested person that they do not have to answer questions and that it is best to get legal advice before speaking with the police.
Being arrested
If the police choose to take you into custody, this is the usual process:
You may be handcuffed.
You may be taken in a police vehicle (marked/unmarked vehicle, police van or a prisoner bus). People may be separated by gender.
You may be taken to the City Watchhouse or police station.
Your property will be confiscated and held by police until you are released. They will note your property on a receipt and ask you to sign for it. You must sign the receipt to have your property returned to you on release.
You may be kept in a holding cell. You may share the cell with others or be held alone.
You are likely to be searched and items may be seized, such as your mobile phone, banners, climbing gear, lock ons, notebooks etc.
Cells may be too hot or cold. There may be bright lights on 24/7 and there will probably be a security camera.
If the police think you are at risk of harming yourself, they may place you in a padded cell and remove any clothing that you could use to harm yourself, and they may arrange for you to attend a doctor or hospital.
You can ask to use the toilet, which may not happen immediately or in private.
You may have your photo and fingerprints taken, along with a cheek swab or finger-prick to obtain a DNA sample. You do not have the right to refuse a request for these simple identity procedures, and it is an offence to resist. Police can use reasonably necessary force if you refuse to cooperate.
You may be asked questions about your health to determine if you have any medical needs, such as regular medications. If you do have health conditions, you should tell the police, as this may require a medical examination and/or your use of prescription medications.
Search and seizure of property
The police can search premises and vehicles and seize property if:
The person consents;
They have reasonable cause to suspect that stolen goods or evidence of the commission of an offence is present (SOA ss 68-72);
It is to detect weapons; or
They have a search warrant (issued under SOA s 67).
Ordinarily, the police cannot keep property without an owner’s consent, unless the property is obtained as a result of an arrest, under a warrant, or if the property is material evidence needed to prove a crime.
If police ask to go through your phone or computer, you can refuse but the police can access your phone or computer (via a search warrant) if they believe it contains evidence of a crime (eg footage, text messages). The police will need to get a warrant to search this property, but they will likely seize the items in the meantime.
If property is seized and the person is later found not guilty, the property is returned to the owner. If the person is found guilty, the property (for example a can of spray paint) is forfeited to the State.
For more information, see our page on seized property.
Your rights
You have a right to make two phone calls; one to a friend or relative, and one to a lawyer.
You may be asked to answer questions, to be interviewed, or to provide a statement. This is a request and is not a requirement. It is usually recommended that you refuse to answer questions – but you must provide your name, address, and date of birth.
You have a right to have a lawyer, friend, or relative present during a police interview. You should seek legal advice before agreeing to a police interview. There may be a duty solicitor available, or you can contact the Legal Services Commission, or a legal support person may be made available by your organisation, or you can organise a private lawyer for advice. If you choose not to participate in an interview, police may be chatty and courteous and make you feel uncomfortable, disrespectful, or like you have something to hide. You can say ‘No comment’ or ‘I do not wish to make a comment until I speak to a lawyer.’ There is no such thing as an ‘off the record’ conversation with police. Be polite and respectful even if the police are not. You have a right to silence and you should exercise this right.
Bail
A person who is arrested by the police may apply to be released on bail. Bail occurs when the accused person is temporarily released on certain conditions set out in a bail agreement until they are required to appear in court.
The police must decide whether to grant bail as soon as reasonably practicable. The courts may reduce sentencing if people have been held for significant lengths of time. Even short periods in custody are often taken into account when sentencing for minor matters.
If granted police bail, you must sign the bail form to be released. Before you sign, check whether you are willing to comply with all of the bail conditions, which may include not attending specific places, or contacting specific people.
If the police refuse to give you bail, or if you challenge the conditions of bail and do not sign, you will be held in custody until you can be brought before a Magistrates Court to make a bail application. A request for the review of a refusal to grant bail should be in writing, however, police sometimes allow this without a written request. The decision may be reviewed by a magistrate over the telephone (Bail Act 1985 s 15(1)(c)). Adults who are arrested and denied police bail must be brought before the Magistrates Court by no later than 4pm on the next day (BA s 15(2)).
Sometimes a bail agreement may provide that you must forfeit to the State a sum stipulated in the agreement if you fail, without proper excuse, to comply with a term or condition of the agreement (BA s 6(1)(c)).
If granted bail, you will be required to sign a property receipt form if any of your possessions have been seized by the police. The police should return your possessions unless they wish to use any of them as evidence. Ask for a record of the items they wish to keep.
Alternatives to arrest
Rather than arresting you, the police may:
Tell you to leave an area because you are loitering in a public place or trespassing on private property. If you do not leave private property when the owner, occupier, or police request you to, you might be arrested.
Issue an on-the-spot fine. You may receive an expiation notice, like a traffic fine. Remember that if you pay the fine, you are admitting the offence and cannot challenge it after you have paid.
Issue a formal caution instead of bringing a court prosecution, if it is a less serious offence. Accepting this is also an admission of guilt, so do not accept a caution if you want to challenge the charge. A caution can always be used by the police and this may still appear on your record. Some employment forms require you to declare arrests and cautions.
Sometimes police will choose not to arrest you at first, to avoid obligations that they have towards you on arrest (eg allowing you to contact a lawyer). Instead, they may invite you to come with them or to answer questions voluntarily. If you ‘voluntarily’ choose to go with them (eg to a police station or elsewhere) or to answer their questions, you can still be arrested at any point. Remember that answering police questions will not necessarily work in your favour, even if their questions seem harmless and the police suggest that you might just be able to ‘clear things up’. If you are unsure if you are under arrest, ask the police, ‘Am I under arrest?’ If you are not under arrest, decline their request to accompany them or to answer questions and you are free to go.
Being charged means police believe that they can prove that you have committed a crime and that they intend to charge you. You will receive a summons, which is an order telling you when you have to appear in court and it will list the offence(s) that the police have charged you with.
Under 18-year-olds
The police must try to arrange for a lawyer, friend or relative you choose to be present during an interrogation or investigation. If no such person attends, the police must try to contact a person nominated by child support services or another person who, in their opinion, is a suitable person to represent your interests particularly if you are suspected of an offence punishable by more than two years imprisonment.
Any written bail application may be made on behalf of the person under 18 by a guardian of the person.
Download the Legal Services Commission fact sheet (pdf) or visit their page on young people and the police.
Before attending an arrestable action
If you consider that being arrested is a potential outcome, before the day of an action, you might like to:
Notify your friends or family that you may be arrested, and ask them to contact the City Watchhouse or the police station you are most likely to be taken to, to confirm your safety and location.
If you use facial recognition or a fingerprint scan to unlock your phone, change your password to a digital code. This makes it harder to accidentally unlock it for the police simply by them handing you the phone.
Ensure you have complex passcodes on your devices, even if you intend to leave them at home on the day.
On the day of an action:
Check your bags and pockets for anything that could result in an offence, eg weapons or drugs. Do not take anything that might result in a fine.
Write the phone number of a contact person on your arm, in case you do not have access to your contacts if you are arrested.
Consider leaving your phone at home or leaving it with a friend during an action.
Do not take unnecessary electronic devices or items you do not want to be seized for any reason.
Bring any required medication in case you are in custody for some time.
Bring extra clothing to be used for comfort and privacy. This may include an extra pair of undies, layers of clothing, and an extra jumper. You can use these items as a pillow, blanket, eyeshield, or privacy screen.
Avoid wearing shoelaces, belts, and scarves, which may be confiscated because they are a safety risk for self-harm.
Consider how you can entertain yourself if you are arrested, and whether you can:
Sleep
Meditate
Exercise eg yoga, situps, pushups, squats, aerobics, pilates, stretching etc
Remember an uplifting activist song or poem
Teach yourself a body rhythm hand clap routine
Imagine stories in your head
Reflect on good memories.
Potential unrelated offences
Be careful to avoid being arrested or charged for offences unrelated to the protest action.
Unrelated or unintended offences could include:
Jaywalking
Public urination
Speeding
Public nuisance (swearing, offensive language etc)
Hindering police in the execution of their duty (see below)
Carrying a weapon or something that could be seen as a weapon (eg a pocket knife or climbing knife).
More serious accidental offences might include trespass. Make sure you know if the protest you are attending is on public or private land.
Hindering and resisting arrest
It is an offence to resist or hinder the police when they are doing their duty including making a lawful arrest (SOA s 6). Hindering and resisting involves a deliberate choice to act and prevent the police from doing their duty.
Hindering usually includes some level of physical interference, such as physically preventing police from lawfully entering a property to speak to an occupant.
However, not all hindering requires physical interference and can include behaviour such as constant and unwarranted interrupting of police while they are attempting to question another person. Acting as a ‘lookout’ to warn others of a police presence may also be considered hindering police.
Resisting arrest ordinarily requires a positive action or physical force designed to prevent police from performing their duties. However, even passive resistance techniques commonly used in civil protests (eg sitting or lying down, linking arms with others, becoming limp and refusing to cooperate) may be considered resisting arrest.
For further information, see the Law Handbook on Police arrest procedure.
Last revised: September 2021