Your Rights - Police Powers in Victoria

Your RightsPolice powers in Victoria

Flemington and KensingtonCommunity Legal Centre

May 2008

Your RightPolice powers in Victoria

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Produced by Victoria Legal Aid (VLA) and Flemington and Kensington Community Legal Centre Inc (FKCLC)

Victoria Legal Aid350 Queen StreetMelbourne VIC 3000

Tel: 9269 0120 Country callers: 1800 677 402

www.legalaid.vic.gov.au

Flemington and Kensington Community Legal Centre 22 Bellair StKensington VIC 3031

First published 1996

Eleventh edition May 2008

© 2008 Victoria Legal Aid. Reproduction without express written permission is prohibited. Permission may be granted to community organisations to reproduce, free of any charge, part or all of this publication. Written requests should be directed to the Communications and Community Education Manager, VLA at the above address.

Disclaimer: The material in this publication is intended as a general guide only. Readers should not act on the basis of any material in this publication without getting legal advice about their own particular situations. VLA and FKCLC expressly disclaim any liability howsoever caused to any person in respect of any action taken in reliance on the contents of this publication.

ISBN 978 1 921180 48 4

¡ Contents

About this booklet

What do these words mean?

Speaking to the police

Name and address Getting police detailsName and address on public transport

Under arrest When do I have to go with the police?What if I disagree about the arrest?What happens after I am arrested?How long can the police hold me?When will I be released or charged with an offence?Koori communityTerrorism laws

Police questioning Speaking to a lawyer and family or friendsUsing an interpreterPolice cautionTape-recorded interviewsIndependent Third Person

Fingerprinting

Signing papers Attendance register bookUndertaking of bailStatement

Mental impairment Special arrest powers

Identification parades and photos Identification paradesPhotos

Searching 20In publicIn custody or under arrestSearching the personCarsPrivate property

Forensic procedures 24

Complaints about police 25How can I complain?Where can I complain?Can I take the police to court?Koori communityYour human rights

Where to get help 29Victoria Legal AidCommunity legal centresOther servicesFurther resources

¡ Your rights Police powers in Victoria

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Victoria Legal Aid (VLA) Our visionVictoria Legal Aid is a leading and responsible force for community access to the legal system and for social justice.

Our valuesVictoria Legal Aid is committed to: serving our clients and community professionally and ethically; acting with integrity, fairness and transparency at all times; respecting and valuing diversity; and pursuing continuous improvement across the organisation.

Our servicesWe can help you with legal problems about criminal matters, family breakdown, family violence, child support, immigration, social security, mental health, debt and traffic offences.

Our free legal services include:• information over the phone in English and other languages• booklets and other materials in English and other languages• seminars and workshops• advice at most courts and tribunals, or by appointment.

If you want ongoing help from a lawyer, you can apply for a grant of legal assistance. Getting a grant will depend on your financial situation and your legal problem. You can use a grant to:

• pay a lawyer to give you advice, help reach agreement, or represent you in court• go to our family dispute resolution service.

Call us to find out how we can help you on 9269 0120 or 1800 677 402 (country callers).

Flemington and Kensington Community Legal Centre (FKCLC)FKCLC is one of more than 50 community legal centres (CLCs) in Victoria. The FKCLC provides generalist legal advice. Its purpose is to provide free and confidential legal advice to people in the Flemington and Kensington area. As part of the overall philosophy of CLCs, FKCLC delivers community legal education and conducts law reform and social justice campaigns. FKCLC is committed to the principles of human rights, social justice, equity and community participation.

The FKCLC works to achieve the following outcomes:• that people in the local community have equal access to justice• that people are aware of, and can assert, their legal rights• that the process of changing laws is responsive to changes in the community• that any given laws have the same impact on people regardless of their income or power• that people understand and respect the rights and responsibilities of others in

the community.

¡ About this booklet

This booklet is a general guide to help you when you deal with the police. It includes information for young people under the age of 18 and people with mental impairment.

When dealing with the police it is important to remember that you have rights and responsibilities. This includes rights under Victoria’s Charter of Human Rights. See ‘Your human rights’ in ‘Complaints about police’.

You can avoid problems if you are sensible and keep your cool. If the situation gets out of control, stay calm, remember your rights and get legal advice quickly. You can get free legal advice from VLA or a community legal centre. See ‘Where to get help’.

VLA may pay for an interpreter when you use our legal information and advice services. Ask for one to be booked when making an appointment. You can also contact us through an interpreter by ringing the Translating and Interpreting Service on 131 450. This is a free service.

The law changes all the time. To check for changes you can:• call the VLA Legal Information Service• read the ‘New law’ and ‘Legal issues’ pages on the VLA website at

www.legalaid.vic.gov.au• visit a VLA office or a community legal centre.

Some words are explained in ‘What do these words mean?’ at the front of this booklet. These words are highlighted in bold the first time they appear in this booklet.


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¡ What do these words mean?

The police and lawyers use legal words when they talk. You may hear these words if you are arrested and go to court. Some of these legal words are also used in this booklet. These words are highlighted in bold the first time they appear.

admissible - allowed to be used as evidence in court

arrest - when the police hold you in custody because they think you have broken the law

authorisation - special power for a limited time that can usually only be ordered by the Supreme Court

bail - a promise that you will go to court to face charges on a certain day. You may have to agree to conditions like reporting to the police, living at a certain place or having someone act as a surety for you

bail justice - a person who can give or refuse to give you bail while you are in police custody

barrister - a lawyer who specialises in appearing at court

beyond reasonable doubt - level of proof needed in criminal cases for a magistrate or jury to decide whether you are guilty

charge - an explanation of the law that the police say you have broken

charge sheet - a sheet of paper that lists the offences the police say you have committed

consent - when you agree to something

conviction - a criminal record of when the court has found you guilty of breaking the law

court order - a court document that says you must do something. It is also a document that sets out your penalty if you are found guilty of breaking the law

criminal offence - see offence

criminal record - a police record of your history in relation to criminal offences

custody - when you have been arrested and are not free to leave

disqualification of licence - the court takes your drivers licence away from you. You have to go to court to get it back

evidence - information used in court to prove something

guardian - a person appointed to make lifestyle decisions for someone who is unable to make those decisions themselves

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inadmissible - not allowed to be used as evidence in court

independent person - an adult who must be with you during police questioning when you are under 18 and your parents or guardian cannot be there

Independent Third Person - a trained person who is with you during police questioning if you are mentally impaired to help you and the police understand each other

indictable offence - a serious offence often heard before a judge and jury

informant - the police officer or government official, such as a public transport officer, who charged you with breaking the law

intervention order - a court order to protect you from family violence or stalking

magistrate - a person who decides if you are guilty or not and what sentence you get

no comment - what you say when you do not want to say anything to police

not guilty - what you say when you deny breaking the law. Also a decision made by the court

offence - something the law says is wrong

reasonable - often the police can only legally do something, such as using force, if it is considered reasonable. The police may have to explain to a court how their behaviour and decisions were reasonable. The court may or may not agree with their explanation

search warrant - see warrant

serve - the legal delivery of a document

solicitor - a lawyer who can advise you about the law and represent you in court

statement - a written document of what you say about events

summary offence - a less serious offence usually heard in the Magistrates’ Court

summons - a court document that tells you when you must go to court

surety - a person who promises money or property if you do not meet your bail conditions

undertaking - a promise to the court to do or not to do certain things

warrant - a court document that says what the police can do, such as arrest you or search your house

witness - a person who gives evidence in writing or in person


¡ Speaking to the police

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You have the right to remain silent but you must tell the police your name and address in some circumstances. See ‘Name and address’ for what these circumstances are. The police must tell you why they are asking for your name and address.

You do not have to answer any other questions that the police ask you.

Anything you say to the police, no matter when or where you say it, may be used by them.

When you talk to the police there is no such thing as speaking ‘off the record’. The police can use what you say to decide if they will arrest or charge you. Anything you say to the police can be used as evidence against you in court.

Tell the police you want to speak to a lawyer before you say anything. Do not answer some questions and not others. This may be used against you later to suggest you are hiding something from police. Say ‘no comment’ to every question until you get legal advice.

¡ Name and address

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Generally, the police do not have the right to demand your name or address without a reason. However, there are some times when the law says that you must give your name and address to the police. It is a criminal offence to give a false name and address in these circumstances.

Police can ask for your name and address if they believe you have committed or are about to commit a certain kind of offence – for example:

• theft, burglary or assault• public transport offences• fishing offences• if you buy alcohol when suspected of being under 18.

Case studyPaul and Rita were walking along the street. A police officer approached them asking them if they knew anything about a robbery down the road. Paul became stressed because he felt the police only stopped him because of his dreadlocks. Paul gave the officer a false name and address. The officer then checked the details and charged Paul with ‘providing a false name and address’. Paul got a summons to go to court and was fined $200.

It can be scary when the police start to ask you questions. Staying calm means avoiding problems. When Paul lost his cool he made a decision that got him into real trouble. You must give your correct name and address if police have reasonable grounds to suspect you have committed or are committing an offence, or if you could help in the investigation of an indictable offence.

You cannot be charged with giving a false name and address when the police are not legally allowed to ask you for these details.

In some cases the police do not need to believe that you have committed any offence before they ask for your name and address – for example, if:

• you are the driver of a motor vehicle or motorbike• the police believe you have information that could assist them in the

investigation of an indictable offence.


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• you are in an area that is named in a court order under the terrorism laws• the police reasonably believe you are named or are in the care of a person

named in a court order under the terrorism laws.

See ‘Terrorism laws’ in ‘Under arrest’.

Getting police detailsWhen the police speak to you they must tell you their name, identification number, the name of the police station where they work and their rank. Also, if you ask for these details in writing, they must give them to you in writing. This information may be useful later.

The police can be fined for not giving you their name, identification number, police station and rank. You need to make a complaint for this to happen. A lawyer can help you do this.

See ‘Complaints about police’.

Name and address on public transportPublic transport inspectors can ask for your name and address if they believe on reasonable grounds that you have committed or are about to commit an offence. They can only ask for your name and address about public transport offences. It is a criminal offence to refuse to give your name and address to a public transport inspector if they are questioning you about public transport offences. You can be fined for this offence by the court.

¡ Under arrest

The police can only arrest you when they think you have broken a law or they have a warrant.

Case studyA local shop owner reported some new graffiti on the side of her shop. The local patrol car stopped to ask Hung and Fred if they knew anything about it. The police officer noticed paint, the same colour as the graffiti, on Fred’s hands. Fred said he had been painting a fence at home. The police arrested Fred because they believed he was involved in the graffiti.

The police had the right to arrest Fred in this situation because there are reasonable grounds to suspect that he was involved in painting graffiti. Fred needs legal help because the police will now try to prove in court that Fred did the graffiti.

When you are arrested the police may handcuff you and take you to the police station.

When the police take you into custody you should always ask the police officer ‘Am I under arrest?’ and ‘Why am I under arrest?’

Police must tell you that you are under arrest unless it is not practical for them to tell you – for example, if you are being violent towards them.

When do I have to go with the police?When the police arrest you, you must go with them.

The police might ask you to go with them to the police station without arresting you. You can choose not to go with the police.

Sometimes you must go with the police when you are not under arrest – for example, when the police want to do a ‘breathalyser’ test (for alcohol) or a drug test. After this, you must go with the police to get a blood test if they ask you to.

The police have special arrest powers if they believe you are mentally ill.

See ‘Mental impairment’.

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What if I disagree about the arrest?If you refuse to accept your arrest, police can use reasonable force to arrest you. Reasonable force means using enough physical force to arrest you, and no more. If you try to stop the police from arresting you, you can be charged with ‘resisting (trying to stop) arrest’. The police can only use reasonable force if the law says that there are reasons to arrest you. If the police use force to arrest you without a reason you can make a complaint.


What happens after I am arrested?When the police arrest you, you may be:

• questioned by police• taken to a police station• asked to give your name and address for police records• formally interviewed by the police• fingerprinted by the police• charged by the police• taken to a bail justice or to a court to make a ‘bail application’.

How long can the police hold me?The police can only keep you in custody for a reasonable time before they charge you. The law does not define a reasonable time. The length of time changes with the seriousness of the offence and how long it takes the police to question you.

Reasonable?Mary was caught stealing food from a shop. The police arrested Mary and then interviewed her for one hour at the police station. The time it took to do this could be considered reasonable in the circumstances.

Unreasonable?Bob was caught in a street carrying a small amount of heroin. He admitted this to police straight away and said he was carrying the drug for his personal use. The police kept him at the police station for five hours before interviewing him about the drugs he was carrying. This could be considered an unreasonable amount of time.

When you think the police are keeping you in custody for too long:• ask when they are going to charge you with an offence or release you• ask to phone a lawyer• make a complaint later.


When will I be released or charged with an offence?After the police have spoken to you, you may be:

• released from police custody without being charged• released from police custody but charged later – in this case the police will

serve charges at a later date (‘on summons’)• charged but released on bail• charged and kept in custody until you go to court – for example, if you are

arrested on Friday night you will go to court on Monday morning.

BailBail means you are released from custody if you promise to go to court to face the charges against you. The police can give you bail at the police station.

When the police do not think bail is right for you they must take you to court, where you can apply for bail yourself. The court will decide if you should get bail. When the court is closed, the police will take you to a bail justice – for example, over the weekend. If they refuse your bail then you have to stay in custody until you can go to court and make a bail application.

A lawyer can help you make another bail application if the court will not give you bail.

Koori communityIf you are Koori and you are taken into custody, the police must tell the Victorian Aboriginal Legal Service (VALS). VALS will contact a client services officer who will try to speak to you to offer support and advice.

If there is an Aboriginal Justice Panel operating locally, then the police must contact it. A panel member can give you support and advice. You may be released into their care if the case is less serious.


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Terrorism lawsThere are new terrorism laws that give the police powers of arrest and detention. These laws are complicated. They are also different depending on whether you are arrested under federal or state law.

Stop, search and seizure powersIn Victoria, the police can ask a court to let them do things to stop a terrorist act. The police can:

• demand your identification• stop and search you or your car or house• direct you to leave somewhere or stay somewhere• take anything connected with a terrorist act.

The police can also apply for a control order (under federal law), a preventative detention order or a prohibited contact order.

Control ordersThe police can ask a federal court for a control order if they think:

• you are training with a listed terrorist organisation• the order will stop a terrorist act from happening.

Control orders can stop you from seeing certain people and doing certain things, like leaving Australia or going to a political meeting.

The order can say you have to wear a tracking device and are not allowed to use the internet or a mobile phone.

You may have to regularly report to someone, such as the police; be photographed and fingerprinted; and have counselling. The order can last for up to 12 months.

Under 18 – a control order cannot be made if you are aged under 16.

16 to 18 – a control order can only apply for up to three months.

In all casesYou can contact a lawyer to get a copy of the order. You can apply to the court to stop the order.

See ‘Where to get help’.

Preventative detention orderThe police can ask for this order if they think you are involved in a terrorist act. They can also ask for this order if they think you have something connected with a terrorist act. In both cases, they must believe that the order will stop the terrorist act from happening or will help the police get evidence of the terrorist act.

The terrorist threat must be about to happen, within the next 14 days, or have happened in the last 28 days.

There are two types of preventative detention orders:• interim preventative detention order – this means that you can be held

by the police for 48 hours• continued preventative detention order – this means you can be held for

up to 14 days.

A preventative detention order means the police can:• take you into custody• search you if they reasonably suspect you are carrying a ‘seizable’ item or

evidence of a terrorist act – for example, a gun. The police can take anything they find

• ask for the name and address of any person who can give them information that will allow them to detain you

• search any place at any time if they reasonably believe you are there• use reasonable force to take you into custody.

The police have limited powers to question you, take your fingerprints, videotape or tape-record you, take a sample of your handwriting or take a photo of you. This law is complicated. If the police want to do one or more of these things, get legal advice.


Under 18 – a preventative detention order cannot be made if you are under 16.

16 to 18 – special rules apply. Get legal advice.


In all casesYou can contact someone at least once. This could be a person in your family or someone you live with, or your employer, employee or business partner. You can tell them that you are under a detention order and cannot be contacted.

You can also contact a lawyer (unless the lawyer is named in a prohibited contact order). Your meeting with the lawyer will be monitored. You have to speak in English or use an interpreter.

Prohibited contact orderThis order only applies if you are under a preventative detention order. It lists people whom you cannot contact.

ComplaintsYou can complain about a control order or a preventative detention order.

See ‘Complaints about police’. Get legal advice first.


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¡ Police questioning

Speaking to a lawyer and family or friendsWhen the police arrest you or when you are in custody, you can make two phone calls. You can phone a lawyer and a friend or relative.

The police must give you a private space to use the phone. A private space is where the police cannot hear you speak on the phone.

The police may not allow you to phone a friend or relative when it is a driving matter involving alcohol or drugs or when the phone call may:

• help a person involved in the offence get away• help in some evidence being lost or changed• put other people in danger.

Using an interpreterThe police must get an interpreter when you cannot understand or answer their questions. The interpreter must be qualified to do this work (not just a relative). The police pay for the interpreter.

When an interpreter is not with you during questioning, the information you give police cannot be used as evidence in court.

Note: police do not have to get an interpreter in driving matters that involve alcohol or drugs.

Police cautionBefore the police ask you questions they must give you a ‘caution’ about your rights.

If you have been charged with an indictable offence, the police must tape-record the caution and your response to it at the beginning of a formal police interview.

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The caution used by police is:‘I must inform you that you are not obliged to say or do anything but anything you say or do may be given in evidence.

Do you understand that?

I must also inform you of the following rights.

You may communicate with or attempt to communicate with a friend or a relative to inform that person of your whereabouts.

You may communicate with or attempt to communicate with a legal practitioner.’

These rights are for your protection. It is in your best interest to make use of these rights. You must tell the police when you want to use them. Do this as soon as the police caution you. Do not wait. The police must let you contact a lawyer and relative or friend when you ask.

Tape-recorded interviewsThe police must tape-record the caution they give you about your rights when questioning you about an indictable offence. The police must also tape-record any questions they ask you and your answers when they want to use this information as evidence in court.

The police may ask you about what you said earlier, before the tape-recording starts. You do not have to agree with or repeat anything you said earlier. These comments could be used against you in court. You can say still say ‘no comment’ on tape even if you already spoke to the police. It will not help your case when you answer some questions but not others. When you choose to say ‘no comment’, stick with it for every question.

The police must give you a taped copy of the interview. The tape is important for your lawyer. Do not lose it.

Note: for a summary offence, such as ‘loitering’ (this means hanging around, not going anywhere or doing anything in particular) or ‘drunk in a public place’, the police do not have to tape-record what you say for it to be used as evidence against you. Instead the police can write down questions they ask you, and your answers. This information can be used as evidence in court.

Case studySophia was arrested late at night. The police told her: ‘You are not obliged to say or do anything but anything you say or do may be given in evidence’. The police asked Sophia to go with them to the police station. The police did not tell her that she had the right to speak to a lawyer. Sophia felt worried, but answered the questions they asked her and signed the statement at the end.

Because the police didn’t advise Sophia of her rights, Sophia’s statement may be inadmissible. You have the right to speak to a lawyer before police start to formally question you. Sophia should insist on speaking to a lawyer. The police can help her find one – even if it is just offering her the Yellow Pages so she can look for one herself. Sophia can complain about not being given access to a lawyer.

Under 18 – a parent or guardian must be with you before the police question you. When your parent or guardian cannot be there, the police must get an independent person to be with you before the police question you.

The independent person will help you and the police understand each other. They help you understand your rights. They do not give legal advice. You can suggest someone from your family, a friend or someone you trust to be the independent person.

Any information you give the police, without an independent person, cannot be used in court. The police do not have to wait for a parent, guardian or independent person when:

• another person involved in an offence may get away• waiting can cause danger for other people.

Independent Third PersonIf you have a mental impairment the police must get an Independent Third Person to be with you during any questioning.

See ‘Mental impairment’.


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¡ Fingerprinting

There are different rules for fingerprinting depending on your age.

When you are 15 or older, the police can take your fingerprints when they believe on reasonable grounds that you have committed an offence. The police cannot take your fingerprints for minor offences such as ‘jaywalking’ (this means walking on the road without caring about traffic) and ‘littering’ (this means leaving rubbish in a public place instead of putting it in the rubbish bin).

Rules for fingerprinting if you are under 18 are:• 15 to 17 – your parents, guardian or an independent person must be with

you when the police ask to take your fingerprints. They must also be there if your fingerprints are taken

• 10 to 14 – you and your parents or guardian must agree before you can have your fingerprints taken. You don’t have to agree to this. If you or your parents or guardian refuse fingerprinting, the police have to get permission from the Children’s Court. Your parents or guardian must be with you when the police ask to take your fingerprints. They must also be there if your fingerprints are taken

• Under 10 – the police are not allowed to ask to take your fingerprints and are not allowed to take your fingerprints.

If you refuse to give your fingerprints, the police can use reasonable force to get them. This means the police may physically restrain you to take your fingerprints. If you are 17 or younger, this must be audio-taped or videotaped.

In all casesAny force the police use must be reasonable. Get legal advice when you are not happy with the way the police have treated you. You may be able to make a complaint against the police.


The police must destroy your fingerprints after six months when you are not charged with an offence, or when you are found not guilty of an offence. You can ask the police if they have destroyed your fingerprints.

¡ Signing papers

Attendance register bookWhen you are released from 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• treated you reasonably.

You do not have to sign the attendance register book if you do not want to.

Undertaking of bailWhen the police charge and release you on bail, you must sign a form called an ‘undertaking of bail’ before you can go home. This undertaking says you promise to go to court on a specific date and agree with any other bail conditions.

StatementA statement is a written account of what you say to the police about events. Get legal advice before making a statement to the police.

If you have made a statement to the police they will ask you to sign it. Read the statement carefully. If you disagree with any part of it, you can change the statement before you sign it. Do not sign the statement unless you agree with everything in it. You can be charged with signing a false statement.

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¡ Mental impairment

Mental impairment includes intellectual disabilities, acquired brain injury, mental illness and dementia. People with a mental impairment have the same rights as everyone else. The police must organise an Independent Third Person to be with you when they ask you questions. If an Independent Third Person is not with you, a court may decide the information cannot be used as evidence.

The Independent Third Person must also be with you when the police ask you to have a ‘forensic examination’ or ask to take your fingerprints. The Independent Third Person helps you and the police understand each other. They help you understand your rights. They do not give legal advice.

It is best to have an Independent Third Person who is not involved in your situation. However, you can suggest someone from your family, a friend, or someone you trust to act as the Independent Third Person.

Other help: the Office of the Public Advocate can organise an Independent Third Person. Call its 24-hour service on 9603 9500 or 1800 136 829 (country callers).

See ‘Police questioning’, ‘Fingerprinting’, ‘Forensic procedures’.

Special arrest powersThe police can arrest you if they believe you are mentally ill and:

• you have recently tried to seriously hurt yourself or someone else• they believe you may try to do one of these things.

In these situations, the police can go into your house (or any place) or pick you up on the street. When this happens, the police must get you examined by a doctor. The police can use reasonable force to help a doctor examine you, if a magistrate gives them a special warrant.

The doctor might recommend that you be made an ‘involuntary patient’. This means you can be admitted to a hospital without your consent. The police can be asked to take you to hospital. Police should not take you against your will, unless there is no-one else who can take you and you are at risk of harm.

Other help: if you are made an involuntary patient you can appeal to the Mental Health Review Board. Contact VLA or the Mental Health Legal Centre.


¡ Identification parades and photos

Identification paradesAn identification (ID) parade is where the police put you in a line of people to see if a witness can name you as the person who committed the offence. A witness is a person who saw or heard something about your case – for example, someone who was injured by the offence.

If you take part in an ID parade, you may be mistakenly identified by the witness as the person who committed the offence.

The police cannot force you to take part in an ID parade. You can refuse to take part in any ID parade until you get legal advice.

PhotosThe police may want to take your photo so they can identify you when you are being:

• kept in a police cell• released from custody on bail with conditions that you report to a local

police station and sign the bail book.

The police may want to take your photo without your permission – for example, when you are sitting in the waiting room or in a cell. You do not have to co-operate if you are asked to show a tattoo or part of your body for a photo. You can complain if the police take your photo without your permission.

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¡ Searching

The police can only search you or your property in some situations. The police can search you if:

• you agree• they have a warrant• they are allowed to under law.

You should ask the police why they want to search you before agreeing. The police must tell you why they want to search. Searches are often very fast and confusing. Stay calm. Talk to a lawyer as soon as possible. If the police do not have the legal right to search you, they cannot force you to have a search.

If the police are allowed to search you and you try to stop it happening, you can be charged with ‘hindering’ police. Hindering police means trying to stop the police when they are doing their duty.

Note: if you are in an area with a lot of violent crime, police can use this fact to work out whether they have reasonable grounds to search you.

Terrorism laws allow police to search without reason if you are in an area that a court has authorised is a ‘target area’. For instance, the court may say that a certain house is a target area. If you are in that house the police can search you without any reason.

See ‘Terrorism laws’ in ‘Under arrest’.

In publicThe police can search you in a public place without a warrant if they believe on reasonable grounds that you are:

• in an area that is the target of an authorisation under the terrorism laws, or• carrying

- illegal drugs- things that can explode or ignite- something that could be used to make graffiti – for example, spray paint,

gouging tool or even a texta- guns or offensive weapons like knives, imitation guns and martial arts

weapons like knuckle-dusters and nunchakus.

The police can search you in any public place including in a shop, at the train station, on public transport (buses, trams or trains) or in a hospital or welfare centre – for example, the Salvation Army.

Police can also search you at school if they suspect you are carrying illegal weapons.

If the police search you, they can also search anything you are carrying and the car you are travelling in.

In 2008, new laws let the police search you without a warrant if they reasonably suspect that you are carrying something that can be used to make graffiti and they believe you are 14 years or older. You must be on or near public transport property – for example, a bus shelter, or trespassing on someone else’s property.

You can be fined if you are caught carrying a ‘prescribed graffiti implement’ – for example, a spray can. It does not matter if you were not intending to graffiti. You can also be fined if you are caught carrying any other graffiti implement – for example, a texta. The police must prove that you were intending to graffiti.

Note: if you are in an area with a lot of violent crime, the police may be more likely to suspect you of carrying an illegal weapon.

Under 18 – the police cannot search you for alcohol but they can take it from you if they see you with it.

If you are under 18, and are being searched in relation to graffiti offences, you can only be given a pat-down search.

The police can search you if you are under 18 and they suspect you are going to inhale a volatile substance (chroming). It is not a crime to chrome. The police can stop you and take you somewhere safe if they think you will hurt yourself by chroming.

Case studyMario and three mates were talking outside a shopping centre. The police approached Mario and demanded that he show them what is in his bag and pockets. Mario and his friends often hang out at the shopping centre and have never done anything wrong.

Before the police can search Mario they must either arrest him or have reasonable grounds to suspect he is hiding drugs, a graffiti marker or a weapon. In this situation, Mario should not try to stop them as it may make the situation worse. Mario could later make a complaint that he was searched illegally.

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In custody or under arrestThe police can search you if you are in cu

Searching the personPat-down searchPolice use their hands to feel over the outside of your clothes. The police can use a metal detector to look for something they reasonably suspect is a weapon. The police can ask you to empty your pockets or remove your outer clothing – for example, your jacket or hat. The police can ask you to show them something they believe is a weapon. You could be charged and fined if you refuse to do this.

Pat-down searches can be done anywhere. The police must make a written record of the search. The police must give you a receipt when they take anything away from you.

Strip searchPolice remove and search all of your clothing. These searches must be done in a private place, usually at a police station. A strip search usually happens when the police are looking for something they could not find in a pat-down search. Under terrorism laws, strip searches can only be carried out on people who are named in a court order.

Internal body searchOnly doctors can do internal body searches. The doctor must be the same sex as you. The police can ask for an internal body search. You have the right to refuse. If you refuse, the police must get permission from a court to do the search.

See ‘Forensic procedures’.

CarsThe police can search your car, even if you are not in it, if they believe you are carrying:

• illegal drugs• something that could be used to make graffiti – for example, spray paint,

gouging tool or even a texta• firearms and offensive weapons like knives, imitation guns and martial arts

weapons – for example, knuckle-dusters and nunchakus.

The police can also search your car if you are in a target area under the terrorism laws.

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Private propertyThe police usually need a search warrant to enter and search private property – for example, your home. However, the police may go into private property without a search warrant when:

• you let them in• they have a reasonable belief that a serious offence will be or has been

committed and they need to go into the house to arrest someone• they need to stop a ‘breach of the peace’ – for example, a fight• there has been a breach of an intervention order• they are chasing someone who has escaped from prison or police custody• they have a warrant to arrest someone• they have a reasonable belief that illegal drugs are on the property.

The police can also search your home without your knowledge if they reasonably suspect that a terrorist act will be or has been committed. The police must apply to the Supreme Court for a warrant to carry out the search. The court has to be convinced that terrorism is involved and that the activity is not simply a protest or industrial action. The police must report back to the court within seven days of the search.

In all casesThe police must use reasonable force when they search you. They cannot use any more force than is necessary – for example, if you are not resisting the search, the police have no reason to be rough with you.

If the police search you, they must make a written record of this. You can ask for a copy of the record at the time or later. This is free if you ask for the record within one year of the search.

You must be searched by a police officer of the same sex as you. If you are not happy with the search, talk to a lawyer as soon as possible.

stody or under arrest to take things from you that could be used as evidence in court.

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¡ Forensic procedures

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A forensic procedure is an examination of your body. Some forensic procedures involve taking intimate body samples like blood; pubic hair; anal, genital or breast swabs; saliva; and mouth or dental impressions.

A qualified doctor or dentist must do these procedures. The police must tell you before the procedure that you do not have to answer any questions asked by the doctor or dentist.

The police may take non-intimate body samples from you. These include samples of hair, fingernail or toenail scrapings, and some external body swabs.

Depending on your age, there are different rules about the police taking body samples:

• 18 and older – you do not have to agree to give body samples. If you refuse, the police can apply to a court for permission to take a sample, or a senior police officer can approve non-intimate body samples without having to apply to court

• 10 to 17 – the police must get permission from a court before taking a body sample. A parent, guardian or independent adult must be with you if a body sample is taken

• Under 10 – the police cannot take body samples from you.

In all casesGet legal advice before agreeing to give body samples.

¡ Complaints about police

When you want to complain about the police, do it as soon as possible after the incident. Talk to a lawyer first, especially if you have been charged with an offence. You can get free legal advice from VLA or a community legal centre. Do this as soon as possible.

Under 18 – you can make a complaint about the police regardless of your age. Get legal advice.

Case studyHassan organised a National Independence Day party. The fireworks display had just started when the police arrived to check if he had a licence for the fireworks. He did not understand why the police were there and was afraid. A struggle broke out and Hassan was hurt. He believed the police caused his injuries. At the station, he was charged with possessing fireworks, resisting arrest and assaulting police. After he was released from the station, Hassan went to the doctor to have his injuries documented. He also wrote down what happened and asked a friend to take photos of his injuries. The next day he contacted the Office of Police Integrity to complain about what happened.

If you want to complain about the police, it is important to do it quickly and to write down everything you can remember about what happened. VLA or a community legal centre can help you.

A bad experience with police can be very stressful and may affect your health or relationships. You can get free support and help to deal with this.


How can I complain?When you want to complain about the way the police treated you, write down everything that happened. Do this as soon as possible. Include:

• the names of the police officers involved and their identification numbers, if you have them

• what happened to you• the date and time when it happened.


If you have been hurt:• see a doctor straight away• get someone to take a photo of your injuries• write down as much as you can about who hurt you, including their name,

rank and police station where they work• write down what actually happened, who said what and the names and

contact details of any witnesses (people who saw what happened)• write down the name of the last person to see you before you were hurt and

the first person to see you afterwards – ask them to write their own notes as soon as possible

• contact a lawyer who will help you make a complaint.

VLA, a community legal centre or a private lawyer can help you make a complaint.

Where can I complain?Contact VLA or a community legal centre for legal advice before making a complaint about the police.

You can make a complaint to the police at any time. When you are being ‘signed out’ from a police station the police will ask if you have any complaints. You do not have to make a complaint at this time. You can still complain later.

See ‘Signing papers’.

You can make a complaint to a police duty inspector or any police officer in charge of a police station – it does not have to be the station where you were charged.

To make a complaint about Victoria Police contact:

• Office of Police IntegrityLevel 3, South Tower, 459 Collins St, Melbourne 3000

Tel: 8635 6188 or 1800 818 387 (country callers)

www.opi.vic.gov.au – follow ‘Complaints’ link to ‘How to make a complaint’

Complaints about police can be made to the Office of Police Integrity (OPI) instead of, or as well as, making a complaint directly to the police. The OPI is not part of the police force. It handles complaints against police and investigates police corruption and serious misconduct.

• Ethical Standards DepartmentLevel 2, Flinders Tower, World Trade Centre, 637 Flinders St, Melbourne 3005

Tel: 1300 363 101 or 1800 818 387 (country callers) Monday to Friday from 8 am to 5 pm; phone messaging system operates 24 hours a day, seven days a week

www.police.vic.gov.au – follow ‘Contact us’ link to ‘Police behaviour’

Complaints about police are handled by the Customer Assistance Police Conduct Unit. This unit is part of the police force.

To make a complaint about the Australian Federal Police, contact:

• Ombudsman (Commonwealth)Level 10, 2 Lonsdale St, Melbourne 3000

Tel: 1300 362 072

www.ombudsman.gov.au – follow ‘Complaints’ link

Complaints about treatment by the Federal Police can also be made to the officer in charge of the station where you are charged.

Can I take the police to court?If you believe you have suffered a genuine wrong by the police and you have evidence of your suffering and loss, then you can sue the police for compensation/damages. These cases are usually very serious. Get legal advice as soon as possible after the incident.

Koori community

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The Victorian Aboriginal Legal Service (VALS) offers special assistance to Koori people who want to make a complaint about the police. Contact VALS to get information, support and free legal advice about your options.

See ‘Community legal centres’ in ‘Where to get help’.

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Your human rightsThe Charter of Human Rights and Responsibilities Act 2006 sets out rights, freedoms and responsibilities for people living in Victoria.

These rights and freedoms include:• the right to protection from cruel, inhuman or degrading treatment (for

example, the right not to be humiliated by an arresting officer)• freedom of expression (how and what you say, write, think, create or receive)• freedom of association and peaceful assembly (people and groups you

communicate or mix with).

The Victorian government and its agencies must consider these rights and freedoms when they make laws and provide services to the public. This includes the Victoria Police and public transport inspectors.

You cannot take legal action over a breach of the charter. You may, however, be able to argue that your human rights have been breached in a case that is already happening in a court or tribunal. Even if you are found guilty of the offence, the charter right may still stand.

For example, you may have been arrested for not having a valid train ticket and the inspector breached your human rights in some way when arresting you.

Even if you are guilty of the transport offence, the arresting officer may have been guilty of breaching their duty towards you. They may be liable for disciplinary action or criminal prosecution.

You can also make a complaint to the Ombudsman that the police or public transport inspector did something against your human rights. The Ombudsman cannot force those people to act in a certain way but they can recommend that they do something differently.

The Ombudsman can also recommend that people be prosecuted or disciplined for misconduct.

For more information about the charter, and a list of the charter rights and freedoms, go to www.humanrightscommission.vic.gov.au or call the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) advice line on 9281 7100 or 1 800 134 142 (toll free).

If you think that your human rights may have been breached, talk to VEOHRC, VLA or a community legal centre.

¡ Where to get help

Victoria Legal AidContact us for free information about the law and how we can help you. You can speak to someone in English or ask for an interpreter.

VLA Legal Information ServiceOpen Monday to Friday, 8.45 am to 5.15 pm Tel: 9269 0120 or 1800 677 402 (country callers)

See back cover for office locations.

www.legalaid.vic.gov.au

Community legal centresContact community legal centres for free, independent and confidential legal information and advice.

www.communitylaw.org.au

Albury Wodonga Community Legal Service Tel: 6056 8210

Brimbank Melton Community Legal Centre – Deer Park Tel: 9363 1811

Brimbank Melton Community Legal Centre – Melton Tel: 9971 1800

Broadmeadows Community Legal Service Tel: 9302 3911

Casey Cardinia Community Legal Service Tel: 9793 1993

Central Highlands Community Legal Centre Tel: 5331 5999

Coburg / Brunswick Community Legal & Financial Counselling Centre Tel: 9350 4555

Darebin Community Legal Centre Tel: 9484 7753

Eastern Community Legal Centre Tel: 9877 5777

Essendon Community Legal Centre Tel: 9376 7929

Fitzroy Legal Service Tel: 9419 3744

Flemington and Kensington Community Legal Centre Tel: 9376 4355 or country callers 1800 677 402

Footscray Community Legal Centre Tel: 9689 8444

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Loddon Campaspe Community Legal Centre Project Tel: 5444 4364 or toll free 1800 639 121

Geelong Community Legal Service Tel: 5221 4744

Gippsland Community Legal Service Tel: 5133 0411 or toll free 1800 004 402

Monash Oakleigh Legal Service Tel: 9905 4336

Murray Mallee Community Legal Service Tel: 5023 5966 or toll free 1800 243 002

North Melbourne Legal Service Tel: 9328 1885

Peninsula Community Legal Centre Tel: 9783 3600 or toll free 1800 054 764

Peninsula Bentleigh Branch Tel: 9570 8455

Peninsula Cranbourne Branch Tel: 5995 3722

Public Interest Law Clearing House – runs clinics for homeless people Tel: 9225 6680

Southport Community Legal Service Tel: 9690 9144

South West Community Legal Centre Tel: 1300 361 680

Springvale Monash Legal Service Inc. Tel: 9562 3144

St. Kilda Legal Service Co-Op Ltd Tel: 9534 0777

Werribee Legal Service Tel: 9741 0198

West Heidelberg Community Legal Service Tel: 9450 2002

Western Suburbs Legal Service Tel: 9391 2244

Whittlesea Community Legal Service Tel: 9401 6655

Disability Discrimination Legal Service Tel: 9654 8644

Melbourne University Student Union Legal Service Tel: 8344 8687

Mental Health Legal Centre Tel: 9629 4422 or country callers 1800 555 88

RMIT Union Legal Service City and Brunswick campus Tel: 9925 2861

RMIT Union Legal Service Bundoora West campus Tel: 9925 7273

SRC Legal Service - La Trobe University Tel: 9479 2469

Victorian Aboriginal Legal Service Tel: 9419 3888 or toll free 1800 064 865 (24 hrs)

Youthlaw Tel: 9611 2412

Other servicesKids Help LineFree, confidential and anonymous 24-hour telephone and online counselling service for young people.

Tel: 1800 551 800 (free call)

www.kidshelp.com.au

LifelineFree, confidential and anonymous 24-hour telephone counselling service for adults.

Tel: 131 114 (local call cost)

Do you need an interpreter?If you need an interpreter to help you speak to any of these services you can call

Telephone Interpreter Service

Tel: 131 450

Ask the interpreter to put you through to the service you need.

The Telephone Interpreter Service is free if you are calling VLA. It is also free for most government agencies and community organisations.


http://www.kidshelp.com.auLifelineFree

http://www.kidshelp.com.auLifelineFree

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Further resourcesLaw Institute of VictoriaMore information about the police, crime and the criminal justice system.

www.liv.asn.au/public/legalinfo/crime/

The Law HandbookA summary of the law. Available from the VLA library at the Melbourne office (see address list on back cover).

Victoria Legal Aid publicationsYou can get free booklets about the law and your rights from VLA.

You can order booklets from our website www.legalaid.vic.gov.au or by phoning 9269 0223.

Our booklets include:• Am I old enough? – a guide to the law for young people• Applying for an intervention order• Overdoses, the law, safer injecting – a guide to legal and health issues for

intravenous drug users• Responding to an intervention order• Sexual assault: the law, your rights• Using disability discrimination law• Your day in court – a booklet for people who have to go to a Magistrates’

Court because they have been charged with a criminal offence.

¡ Your rights

http://www.legalaid.vic.gov.au

¡ Your rightsPolice powers in Victoria

VLA Legal Information ServiceTel: 9269 0120Country callers: 1800 677 402

VLA officesMELBOURNE350 Queen StMelbourne VIC 3000Tel: 9269 0120Country callers: 1800 677 402

Suburban offices

BROADMEADOWSNorth western suburbsLevel 1, Building 1Broadmeadows Station Centre1100 Pascoe Vale RdBroadmeadows VIC 3047Tel: 9302 8777

DANDENONGWesternport regionLevel 1, 9-15 Pultney StDandenong VIC 3175Tel: 9767 7111

FRANKSTONPeninsula regionCnr O’Grady Ave & Dandenong RdFrankston VIC 3199Tel: 9784 5222

PRESTONNorth eastern suburbs42 Mary StPreston VIC 3072Tel: 9416 6444

RINGWOODOuter eastern suburbs23 Ringwood StRingwood VIC 3134Tel: 9259 5444

SUNSHINEWestern suburbs1/474 Ballarat RdSunshine VIC 3020Tel: 9300 5333

Regional offices

BALLARATCentral Highlands regionArea A, Level 175 Victoria StBallarat VIC 3350Tel: 5329 6222

BENDIGOLoddon-Campaspe region424 Hargreaves StBendigo VIC 3550Tel: 5448 2333Toll free: 1800 254 500

GEELONGBarwon regionLevel 2, 199 Moorabool StGeelong VIC 3220Tel: 5226 5666Toll free: 1800 196 200

HORSHAMWimmera region29 Darlot StHorsham VIC 3400Tel: 5381 6000Toll free: 1800 177 638

MORWELLGippsland regionCnr Chapel & George StMorwell VIC 3840Tel: 5134 8055

BAIRNSDALEGippsland region (branch office)101A Main StBairnsdale VIC 3875Tel: 5153 1975

SHEPPARTONGoulburn region36-42 High StShepparton VIC 3630Tel: 5823 6200

Publication ordersTo download or order VLA publications in English or other languages go to www.legalaid.vic.gov.auIf you need help ordering online please call VLA on 9269 0223

PP-CL-ENG-0508

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http://www.legalaid.vic.gov.auIf

Documents

Your Rights - Police Powers in Victoria