Find out what your rights are if you are arrested or detained by police

If you are under 25, you can contact us for free and confidential legal advice about this topic here. 

You have rights if you are arrested or detained by police, and there are special laws that apply if you are under 18. If you aren’t sure if you have been arrested, it’s important to (politely) ask police. 

When can I be arrested?

Usually, the police need a warrant in order to arrest you (a warrant is special permission from a court). 

However, the police don’t need a warrant if they think: 

• you have committed or are committing a crime;
• you’re have committed or are committing a family violence offence; or 
• you have escaped from lawful custody. 

If you’re under 10 years old, the police can only arrest you without a warrant if they think that this is necessary to stop you from committing a crime or to protect people or property. The police must also think that: 

•  you are committing a crime or are likely to commit a crime;
• you have caused someone to be seriously injured; or 
• there is a serious danger that someone will be injured or that property will be seriously damaged.

 The police have to always tell you why you have been arrested. If they don’t, it’s a good idea to ask. 

Can the police use force to arrest me?

A police officer is only allowed to use force that’s reasonably necessary to arrest you and stop you escaping. This means that if you cooperate the police can’t use force, but the more you resist arrest the more force police can use. Resisting arrest by using physical force or running away, or threatening a police officer, are serious crimes.

For this reason, it’s important not to fight, run away or argue if a police officer places you under arrest. You can always politely ask why you are under arrest, and ask for the officer’s name, rank, badge number and police station. You can write down these details and what happened so you can get legal advice or make a complaint if you think you have been treated unfairly.  

Your rights while under arrest

If you have been arrested because police suspect you have committed an offence, then in most cases you have the right to: 

• make a call to a relative or friend of your choice to tell them where you are; 
• talk to a lawyer in a place where the police can’t overhear you, and have the lawyer there with you while you are being questioned by police;
• be told if your friend, relative or lawyer requests information about where you are;
• have an interpreter to help you communicate if you have trouble understanding English or a physical disability; 
• if you are not an Australian citizen, have the police notify the officials in your home country about your arrest and allow you to speak with the officials in your country, if you would like them to; 
• not answer any questions (except for some questions you are legally required to answer like your personal details); and 
• treat you with humanity and dignity.

Before any questioning starts, police must tell you that you don’t have to say anything and that anything you do say can be used against you in evidence. 

If you’re under 18, the police have to tell your parent or guardian that you have been arrested. They must also allow you to talk in private with a parent, guardian, independent person, or if you are an Aboriginal or Torres Strait Islander, a representative of an Aboriginal legal assistance organisation, before they start questioning you, and also allow that person to be with you while you’re being questioned. 

If you are an Aboriginal or Torres Strait Islander person and have been arrested for a Commonwealth offence, in most cases the police have to notify a person from an Aboriginal legal assistance organisation and allow them to communicate with you. They can only start questioning you if either you have spoken to the person, or it has been 2 hours since they were notified of your arrest. In most cases, the police must also allow you to talk in private with a relative, friend, lawyer or person from an Aboriginal legal assistance organisation before they start questioning you and allow them to be with you while you’re being questioned.

How long can police keep me for?

If you are over 18, generally the police cannot keep you for more than 4 hours, or up to 8 hours if the police apply for more time from a magistrate or judge. 

If you are under 18 or are an Aboriginal or Torres Strait Islander person, the police can keep you for 2 hours, or up to 8 hours if the police apply for more time from a magistrate or judge.

Searches while under arrest

If you have been arrested, or if you are in police custody for another legal reason, then police can search you.

In most cases, a search should be conducted by a person of the same sex as the person being searched.

There are special rules about how police can conduct searches where they ask you to remove your clothes and examine your body (called “strip searches”). For example:  

• if you are under 10 years old, police are not allowed to conduct this kind of search on you;
• if you are between 10 and 18, the police can only search you if you have a parent or guardian with you;
• police can only ask you to remove your clothing if they think this may provide evidence of a crime; 
• the police are not allowed to search inside your body (for example, not in your mouth or in your private parts); 
• the police are not allowed to remove more clothes than necessary; 
• the police are allowed to use force that is necessary reasonable in the circumstances. This means that if you cooperate, the police can’t use force, but the more you resist a search the more force police can use.  

It’s a good idea to cooperate with a search, but you can always ask questions such as “Can you tell me why you’re searching me?” If you think the police have behaved inappropriately, it’s a good idea to get legal advice as soon as you can. 

If you are an Aboriginal or Torres Strait Islander person

If you are an Aboriginal or Torres Strait Islander person and have been arrested, in most cases the police have to notify a person from an Aboriginal legal assistance organisation and allow them to communicate with you. They can only start questioning you if either you have spoken to the person, or it has been 2 hours since they were notified of your arrest. The police should also allow you to talk in private with a relative, friend, lawyer or person from an Aboriginal legal assistance organisation before they start questioning you and let them be with you while you’re being questioned.72 

If you are an Aboriginal or Torres Strait Islander person and need help or support for a dealing with police, you can call the Aboriginal Legal Service (NSW/ACT) on 1800 765 767. You can also find out more on their website, here. 

Need more help?

If you are under 25 and have questions about police powers, you can get help here. You can also call Legal Aid ACT on 1300 654 314 (if you are 25 years or older) or (02) 6173 5410 (if you are under 25). 

Want to read more? You can check out this this factsheet from the ACT Law Society.