Arrested in Australia?

Key Takeaways

• Your Three Key Actions: If you are arrested, your immediate priorities are to: 1. Remain calm and do not resist. 2. Exercise your right to silence. 3. Ask to speak with a lawyer immediately.

• The Right to Silence: You do not have to answer police questions or participate in a formal interview. This is your fundamental right and is designed to protect you.

• The Arrest Process: After an arrest, you will be taken to a police station. The process involves a formal interview (which you can decline), potentially taking fingerprints and photos, a decision on whether to lay charges, and a decision on bail.

• State-Based Laws: The specific powers of police and the details of the arrest process are governed by the laws of each Australian state and territory.

Introduction

Being arrested by police is one of the most stressful and disorienting experiences a person can face. In a moment, your liberty is removed, and you are thrust into a legal process that can be confusing and intimidating. However, it is in these critical first few hours that knowing your rights and understanding the process is most important.

This guide provides a clear, step-by-step explanation of what to do if you are arrested in Australia and what you can expect to happen next. How you conduct yourself can have a significant impact on the outcome of your case.

Important Note: Police powers and procedures are governed by state and territory legislation. This article uses the law in New South Wales (NSW), primarily the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), as a guiding example. The principles are similar across Australia, but specific rules may vary.

Learn more about arrest laws in NSW at Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Police cannot arrest you arbitrarily. To make a lawful arrest, an officer must suspect on reasonable grounds that you have committed, are in the process of committing, or are about to commit an offence. They can also arrest you if you have a warrant issued for your arrest.

When arresting you, the officer must:

• Tell you that you are under arrest.

• Tell you the reason for the arrest.

• Use no more force than is reasonably necessary.

An arrest can be initiated for any type of criminal matter, from a serious Traffic Offence to allegations of Sexual Offences or White-Collar Crime.

If you are placed under arrest, your actions matter. Follow these steps.

• Stay Calm and Do Not Resist.
  Physically resisting arrest, even if you believe it is unlawful, will likely lead to you facing additional charges (like resisting arrest or assaulting police). Stay as calm as you can and do not argue with the police on the street.

• Provide Your Details.
  You are legally required to provide your name and address to the police. You should do so clearly.

• Exercise Your Right to Silence.
  This is your most important right. You do not have to answer any other questions, make a statement, or participate in a formal interview. The best way to exercise this right is to say clearly and politely:
  "I wish to remain silent. I do not want to participate in an interview."

• Ask to Contact a Lawyer Immediately.
  You have the right to contact a lawyer. This is a fundamental safeguard. State clearly:
  "I want to speak with a lawyer."
  Police must provide you with a phone and a private space to do so. A lawyer can provide immediate advice on your right to silence and how to proceed.

After being arrested, you will be taken to a police station. Here is a general timeline of what to expect.

At the Police Station

You will be placed in the custody of a "custody manager," a senior police officer responsible for overseeing your welfare and ensuring your rights are upheld while you are detained. They will again caution you and inform you of your rights.

The Police Interview

Police will ask if you wish to participate in a formal, recorded interview about the alleged offence. Before this happens, police must give you a formal caution, which sounds like this:
"You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?"
It is almost always in your best interest to decline the interview until you have spoken with a lawyer. The safest course of action is to repeat, "I do not wish to be interviewed."

Fingerprints, Photos, and Searches

After an arrest, police have the power to take your fingerprints and photographs. They also have the power to search you. As covered in our guide to Police Search Powers, this can range from a general search to a more invasive strip search, which is governed by very strict rules.

The Charging Decision

Police can only detain you for a limited "investigation period" (typically up to 6 hours in NSW, though it can be extended). By the end of this period, they must make a decision:

• Charge you with an offence.

• Release you unconditionally (if they decide not to proceed).

• Release you pending further investigation.

• Issue you with a Court Attendance Notice or a future service undertaking.

Bail

If you are charged, the next decision is bail. Bail is a promise to appear in court on a specified date.

• Police Bail: The custody manager or a senior officer can grant you bail at the police station. This may come with conditions (e.g., reporting to police, not contacting certain people).

• Bail Refused: If police refuse bail, you must be brought before a court as soon as practicable (usually the next morning). A magistrate will then hear a formal bail application, where your lawyer can argue for your release.

Being arrested is a serious event that marks the beginning of your journey through the criminal justice system. While it is a frightening experience, you are not without rights.

The most critical advice is to remember and exercise your three key rights: stay calm and do not resist, exercise your right to silence, and immediately ask to speak with a criminal lawyer. The decisions you make in the first few hours can have a lasting impact on the outcome of your case.

AHL Legal: Your Partner in Navigating Arrests

Facing an arrest or criminal charges? At AHL Legal, we specialize in defending your rights, providing expert guidance and robust legal representation to protect your future.

Learn more about Australia’s judicial system at Federal Court of Australia.