Dealing with police: Your Rights And Police Powers

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When dealing with the police it is important to know your rights and to assert them calmly and politely. It is also important to avoid confrontation with the police, as this may often work against you. Be realistic in the circumstances.

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Your Rights And Police Powers

Being stopped by police

The police have the right to ask for your name and address if they believe ‘on reasonable grounds’ you are about to break or have broken the law. Therefore you should provide your name and address if asked. Refusing or giving an incorrect name and address is an offence. If police want you to go with them for questioning, you can refuse unless they are arresting you.

Answering police questions

In most circumstances you are legally obliged to give the police your name and address, but other than that you have the right to remain silent. You can refuse to answer questions asked by police whether you have been stopped in the street, been taken to the station for questioning or been arrested. You should refuse to answer any questions or sign any statements until you have spoken to a lawyer.

When must you answer police questions.

There are some circumstances where you must answer questions asked by police

If you are driving, you must:

  • Give your name and address and the name and address of the owner of the vehicle.
  • Show your driver’s licence or, if you don’t have it on you, take it to a police station within 48 hours
  • Take a breath test if they ask you to (it is an offence to refuse);

Police may ask you your name, address, date of birth and ask you to show evidence of your age if you are in a pub or on licensed premises. Under the Misuse of Drugs Act the police may ask you to give information about the manufacture, sale or supply of prohibited drugs and plants. Failure to cooperate may be an offence. Police can use anything you say to them at any time in deciding whether to arrest you or charge you with something. There is no such thing as ‘off the record’.

Park Police, Railway Police And Transit Guards

Park Police and Railway Police all have powers similar to police officers. They can arrest you or give you infringement notices for being drunk, trespassing, acting violently, offensively or in a way that puts others in danger.

Railway police can remove you from the train for getting in the way of other passengers, destroying property, causing a disturbance, not paying correct fares, having an invalid ticket or failing to give your name and address.

Transit Guards are not police. They do not have police powers but will call railway police when needed. Transit Guards have the power to check you have a valid ticket, have paid the correct fare and can issue fines and infringement notices.

Reporting A Crime To Police

The Police Service are attempting to improve attitudes towards the gay and lesbian community. This includes improving police performance and encouraging members of the gay and lesbian community to seek help from the police. If you are the victim of a crime, it is important to report it to the police. You can also complain about actions the police have taken.

What to do if you are arrested

Police can only arrest you if they have reasonable grounds to believe you have broken the law. They must tell you at the time what you are being arrested for. You must be ‘cautioned’ by the police before they question you formally. This means telling you your rights in relation to questioning and evidence.

After arresting you, the police can only hold you in custody for a ‘reasonable time’ without charging you. What is ‘reasonable’ depends on the seriousness of the crime and the circumstances. While in custody you can ask to telephone a friend or relative or a lawyer in private but this is not a legal right.

If transgendered you should clearly state you have serious concerns for your personal safety should you be placed in with other inmates.

Formal interviews with police

Generally, you have a right to remain silent (see above). If you make a written statement explaining your version of events or if the police prepare a written record of the interview then this will probably be used against you in court. The police will ask you to sign the record of interview and the statement. You do not have to sign. If you do sign you should read the statement carefully and correct any mistakes. Even if you do not sign the record of interview it can be used as evidence in court. You should ask for a copy of the written record of interview and your statement and show them to your lawyer. Anything you say to the police can also be used in court. If you are under 18, an independent adult person must be present during the interview. This can be your parent, family member, friend or other person independent from the police.

Physical evidence

Fingerprints and other ID

The police can take your fingerprints or photograph if you have been arrested.

Body searches

A police officer of your gender can do a pat-down search or a strip search for safety reasons or to get evidence while you are in custody. In regard to transgender or intersex people your ‘legal’ gender would determine the gender of the police officer legally allowed to body search you. This should be done with respect for your privacy and dignity. A physical examination or an internal search of your body can only be done by a doctor.

Body samples

Police can only take body samples from you if you have been charged with an offence and it is related to the crime. (However, if you are the driver of a car police can demand a breath or blood test.)

Other searches

Police can search your house if they have a warrant, but also without a warrant in certain circumstances. They can usually also search your car.

Complaints About Police

There are steps that need to be done to make a complaint about the police. You should make your complaint as soon as possible after the incident. Where possible you should first try and resolve a problem by contacting the police. This may be through contacting the relevant officer, the officer in charge of the police station or even the Commissioner of Police in writing.

Any complaint should set out in detail everything that you say happened. Names and contact details for any witnesses to the event should also be provided. Copies of any medical reports and photographs should be provided as well. Make sure you keep a copy of your complaint for your own records.

Anti-Discrimination

If you believe that the police have discriminated against you, you may be able to lodge a complaint with the Equal Opportunity Commission

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