YOUR RIGHTS WITH POLICE
Because of the widespread carceral responses to people who use drugs, harm reduction must include community education and advocacy focused on reducing the harms associated with policing, surveillance and incarceration. Knowing your rights with police can help you feel calmer if you have to engage with police, support you to make informed choices, enable you to advocate more effectively for yourself and your community, and equip you to know when your rights have been breached.
The following information is adapted from several sources including Your Rights With Police by CounterAct
Visit: https://counteract.org.au/about/
See the list of services and resources at the end of this section for more information
WHEN APPROACHED BY POLICE
YOU HAVE A RIGHT TO
Remain silent
Refuse to answer police questions
Know if you are being arrested
Know why you are being arrested
Refuse to give personal DNA samples in particular circumstances
Refuse to be searched unless police believe you are carrying a weapon or evidence (unless you are under arrest)
NAME AND ADDRESS
Police have the right to ask for your name and address if they reasonably believe that you have committed, or are about to commit any offence, or you may be able to assist in the investigation of an indictable (serious) offence. If you refuse to give your name and address when the police have a right to ask for it and you do not have a reasonable excuse for refusing to cooperate, you will be committing an offence and could be charged. Police can also ask for proof of identity where it is reasonable in the circumstances.
If you are arrested and want to be processed quickly it is highly recommended that you give current photo ID.
If the police ask you for your name and address, you can ask the police officer for their name, rank and station for use in court later. They are legally obliged to tell you.
ANSWERING POLICE QUESTIONS
You have the right to remain silent. Anything you do say to the police can be used as evidence against you in court, or in the police decision whether or not to charge you. Be aware that aside from the requirement to give your name and address, you are not required to answer any police questions either before or after your arrest. You can politely explain that you are exercising your right to silence and you will not be answering any questions. It is important to exercise your right to say NO COMMENT, and not answer occasional questions.
If you are under 18 years of age — the police MUST NOT formally question you unless your parents, a guardian or an independent person is present during questioning.
If you are an Aboriginal and/or Torres Strait Islander person — you have the right to speak privately with a support person before being interviewed and have that support person present while being interviewed.
If you have a disability that impacts your capacity to understand police questions and communicate — you have the right to speak privately with a support person before being interviewed and have that support person present while being interviewed.
BEING ARRESTED
Arrest is the process by which police can lawfully take you into their custody. Police are not required to give you a warning prior to arresting you, but often they will. Police must formally tell you they are arresting you. You should always ask the police officer; “Am I under arrest?” and “What for?” Remember what they say. In most cases, it is necessary for police to inform you of the reason for the arrest.
HINDERING OR RESISTING ARREST
A police officer may charge you with resisting arrest if you try to stop them from arresting you. It is an offence to “actively resist “ a legal arrest (yours or another’s). In some states it is not necessarily an offence to not cooperate, for instance by lying down, going limp or refusing to move, however Queensland law has a stricter reading of hinder/obstruction charges. Activists passively resisting have been charged with the offence of “Assault or obstruct a police officer”.
CONTACTING LEGAL ADVICE AND SUPPORT
The police are only required to inform you of your right to contact a friend, relative or lawyer if you are being questioned about an indictable (serious) offence. Regardless of the offence however, you have a right to speak to a friend, family member or lawyer before you enter into police questioning. If you are an adult Aboriginal and/or Torres Strait Islander person, the police must notify or attempt to notify the Aboriginal Legal Service if they intend to question you.
PHOTOGRAPHS AND “IDENTIFYING PARTICULARS”
For almost all offences, the police may request ‘Identifying Particulars’. These include palm prints, fingerprints, handwriting samples, footprints, photographs and measurements. It is an offence not to give the Identifying Particulars requested. You may be required to provide these Identifying Particulars while you are in custody, or you may be issued with a notice by a police officer to report to a police station within 7 days to provide them.
BODY SAMPLES
For police to obtain a forensic sample (blood, hair, mouth swabs etc.) they require your consent or a court order. You should refuse to consent to providing a forensic sample, and ask to speak with a lawyer.
SEARCHES
Police do not have an automatic right to search you. If they do not have a warrant, a police officer may stop and search you or your vehicle without your consent only in certain circumstances. This includes where they reasonably suspect you of having in your possession: a weapon, knife or explosive; illegal drugs (including paraphernalia), stolen/unlawfully obtained property; a graffiti instrument; tools used for housebreaking or car stealing; something you intend to use to harm yourself or someone else, or a ‘dangerous attachment device’ (e.g, a lock-on device) that has been used, or is going to be used, to disrupt a relevant lawful activity.
Simply being present at an event, a music festival or being in the Fortitude Valley on a Friday night is not a reasonable ground to suspect you are carrying drugs or something else illegal. If a drug detection dog indicates that a person may have something unlawful, that is enough for reasonable suspicion.
If the police do not have these “reasonable grounds to suspect”, the search is unlawful and any force used will be an assault by the police officer. This would need to be established in court.
What does the police officer need to do before searching me?
The police powers law sets out how police can conduct a search. There are some safeguards in place which police must comply with if they do decide to search you, particularly regarding strip-searches. However some rules are guidelines which police only have to comply with so far as it is reasonably practicable to do so.
Before searching you, a police officer must:
Provide evidence showing they are a police officer, such as their warrant card, if they are not in uniform;
Tell you their name and station;
Tell you the reason for the search;
Ask for your cooperation;
Tell you if you will have to take an item of your clothing off during the search; and
Tell you why you need to take any clothing off for the search.
During the search
The police must conduct the least invasive kind of search practicable in the circumstances. i.e. no strip search unless it is actually necessary;
Police must conduct the search in a way that provides you with reasonable privacy and as quickly as is reasonably practicable;
Unless it is reasonably necessary, no search of the genital area or breasts (for female or female identifying trans and intersex people) is permitted;
You should be searched by an officer of the same sex,
You cannot be questioned while being searched if reasonably practicable; and
The police must allow you to dress as soon as the search is finished.
The police cannot:
Search your genital area or breasts (for female or female identifying trans and intersex people), unless it is reasonable necessary; or
Question you while you are being searched.
I am not sure if there are reasonable grounds, should I consent to a search?
Unless you were coerced into consenting to the search, consenting to a search would make an otherwise unlawful search lawful. If you do not consent to a search you should do the following;
State to the officer that you do not consent to the search;
Record the time, date and the officer’s name;
Record any witnesses names and contact information;
If they are recording you, then state that you do not consent; and
Ask them to write in their Police notebook that you do not consent.
By not consenting to the search you may have grounds in Court to argue that the search was unlawful and anything found in the search cannot be used against you.
If you do not consent to the search make sure you say you don’t you can consent via action.
A police officer found some drugs on me when they searched me. What should I do?
If something is found on you during a search, you must give the police your correct name and address if asked. You do not need to give any other information or answer other questions.
You should take note of the officer’s name, rank and station.
The police may take a range of actions. You may receive drug diversion, a court attendance notice or be arrested depending on the seriousness of the alleged offence.
Basically, drug offences in Queensland are divided into three categories: Possession, Production (manufacture) & Supply and Trafficking.
Supplying
Supply can mean, offering to give, giving, selling, administering, transporting or offering to do an act contributing to the purpose.
Payment does not need to be involved
Supply is also arranging the deal
Aggravated supply
Trafficking
Carrying on a business of unlawfully trafficking in a dangerous drug
Does not need to be a huge commercial enterprise
Selling to various people could constitute trafficking
Possession
It is an offence to possess an illegal drug or non-prescribed medicines. The penalty for having drugs depends on what types of drugs they are, and the amount you have. The most common type of drug offence is possession of a small amount of cannabis. People convicted of this offence are usually, but not always, fined and often made to attend a drug diversion session. If the police catch you with a large amount of drugs, you could face up to 25 years in prison.
The police can also arrest you for having stuff like bongs or scales for using drugs.
You can legally own a drug testing kit like a reagent kit however there are some reports that police have confiscated these items. If you are testing someone else’s drugs you are in possession of them which is technically an offence.
BUT it is not a crime to have a needle or syringe in your possession. Having a needle or syringe does not mean you are doing drugs, because you could have a medical condition where you need to have injections. However, it is a crime to give a needle or syringe to your friends so that they can take drugs.
A person does not have to own the drug to be in possession of it, or even want to take it to be in possession. For example, if you are holding drugs for a friend, you may still be charged with possession.
It’s also a crime to allow people to bring drugs or the stuff you use to take drugs, like bongs or pipes, into your house or your car. The police have to prove that these things were actually in your house or your car and in your possession unless you can prove that you didn’t know or had no reason to suspect that they were there. If the police can show that the drugs or drug stuff was in your house with your knowledge, you could get up to 15 years in prison.
If you get convicted of a crime relating to drugs, you could get a fine of up to $570,000 or 25 years imprisonment or both. You may also receive a criminal record which will make it hard for you to get a job, credit card or travel overseas.
Did you know?…You can be charged with possession even if someone else’s drugs are found in your house or car unless you can prove you didn’t know about the drugs.
GETTING OUT OF CUSTODY
After an arrest, a person can be detained by a police officer for no longer than 8 hours, unless this period is extended. During this time, the person must not be questioned for more than 4 hours. This does not include time taken to transport you to the police station or wait for your lawyer. Make a note of the name of the arresting officer and the time you were taken into custody and released. Just because you have been arrested doesn’t mean that you will necessarily be charged. You may be:
Released without charge
Released and charged at a later date
Charged and released on bail
Charged and brought before a bail justice
If you are being released, you will be asked to confirm that:
The police have not taken anything from you
You have been treated reasonably
You have received your police charge sheets
You can raise any issues with your treatment at this point. You do not have to sign or confirm anything if you do not want to. You may wish to ask for a record of anything confiscated.
BAIL
Bail is simply an undertaking (promise) that you will appear in court on the day your charge is listed. If you are from another state, and have weak ties to Queensland, the court may order that you pay a deposit of money or provide a ‘surety’ to guarantee that you will appear at court. A surety is a promise by another person to pay money if you fail to turn up at court. The money will be refunded if you comply with the bail conditions, and after your matter has been dealt with in court. If you do not agree to the bail conditions or you are refused bail, you may make an application to the court for an order granting or varying bail. The court will then hear and make a ruling on the application.
KEEPING RECORDS
If you are arrested, or you have been a witness to arrests or police violence involving other activists, keep a record of every detail: what, when, where etc. Write everything down as soon as possible, and ensure you have contact details for witnesses. This information can be of critical importance in subsequent legal proceedings, either against you (for example, when you are charged with an offence), or against the police (for example, when you are issuing a complaint or suing them for injuring you or unlawfully arresting you). There is no law that prevents you from videotaping or taking photographs if these events are taking place outdoors in a public place.
WHEN CAN THE POLICE CONFISCATE MY CAMERA/PHONE?
Once you are arrested, police do have the power to search you and they may confiscate certain property you have with you at the time (e.g. a mobile phone or weapon), if they decide that it can be used as evidence in court proceedings. If police ask to go through your phone or your computer, you can refuse your consent. They will then need to get a warrant to search this property, but they may seize the items in the meantime. Police can also obtain orders from the court that require you to release to police your security passwords or codes for access to these electronic devices. It is always a good idea to have passwords on your devices and disable any fingerprint or face ID unlocks.
COMPLAINTS AGAINST THE POLICE
If you have been injured by a police officer:
see a doctor immediately, and ensure that they provide you with a written medical report describing your injuries, and photograph your injuries
write down as much information as you can about the person or people who injured you including name, rank, police station, etc.
write down the name of the last person to see you before you were injured and the first person to see you afterwards
Police are under instructions to wear their identity badges at all times, but sometimes do not do so. The first avenue for complaints against police is the Queensland Police Service complaint management department, and further steps from there. Community members and activists are often frustrated by these processes. There is more information at the legal aid link below
POLICE DRUG DIVERSION
There are two kinds of drug diversion available in Queensland.
1. Police Drug Diversion
2. Court Ordered Drug Diversion
1.The Police Drug Diversion Program
In Queensland this is a legislated program that allows police to offer an eligible person an alternative to going to court for a minor drugs possession offence. If you meet the eligibility criteria, police must give you a Drug Diversion Warning. However, if you have already had a warning, you may get two chances to attend a Drug Diversion Assessment Program appointment.
2. Court Ordered Drug Diversion
This type of drug diversion is available to people who commit minor drug crimes and have never had any kind of drug diversion before, or have had police or Court drug diversion once before. Court ordered drug diversion is available for a much wider range of minor drug offences, including possessing small quantities of schedule 1 drugs like cocaine, heroin, ecstasy and speed.
If a person is eligible for Court ordered drug diversion and the Magistrate thinks it is appropriate, they are sentenced to a good behaviour bond that includes a condition that they attend a Drug Assessment and Education Session. No conviction is recorded.
Drug Driving
You cannot legally drive while under the influence of a drug or alcohol. Police in Queensland have the power to randomly stop drivers and take a saliva swab to test for drugs. The test is done by the police and if it is positive they send the test away to a lab for further analysis. If the test is negative then you are free to go. It’s important to know that the offence of driving under the influence of drugs is not decided by the amount you have in your system – it is if ANY is found in your system. This means that if you have taken drugs several days earlier your test could show as positive.
If you are on a full driving licence and are convicted of driving under the influence of a drug you could be fined, lose your license for up to 6 months or if it is your second offence up to 12 months, or worse case scenario, imprisoned.
If you are on your learner’s, probationary or provisional licence and are caught drug driving you could be fined, or be imprisoned for up to 3 months and lose your licence for up to 9 months. If you are on ‘L’ or ‘P’ plates and have a question about drug driving you can get help through Youth Law Australia.
Disclaimer: This information is only intended as a guide to the law and should not be used as a substitute for legal advice. If you have any further questions we strongly suggest you seek legal advice. This information applies to people who live in, or are affected by, the law as it applies in the State of Queensland, Australia.
Below are some suggestions if you are seeking support and/or information, for you, a friend, or family.
Legal Aid QLD – 1300 651 188
Law Right QLD – 07 3846 6317
Aboriginal & Torres Strait Islander Legal Service QLD – 07 3025 3888 or 1800 012 255 (24/7 free call)
LGBTI Legal Service Inc 07 3257 7660
Sisters Inside – 07 3844 5066
Youth Law Australia – 1800 950 570
For a full list of QLD legal support services visit our online service directory (https://hi-ground.org/support-service/) sort by topic ‘legal services’ and select QLD for a list of contacts.
Current QLD Laws:
Police Powers and Responsibilities Act 2000 (QLD)
Drugs Misuse Act of 1986 (QLD)
Youth Justice Act (QLD) 1992
Police Powers and Responsibilities Act (QLD) 2000
Criminal Code Act (Cth) 1995
Transport Operations (Road Use Management) Act 1995 (QLD)
References:
Fair Play (2021). Your Rights & Safety at LGBTI Events. Retrieved from
http://www.fair-play.org.au/
Kahler Lawyers. (2016). Possession of Drugs. Retrieved from https://www.kahlerlawyers.com.au/possession-of-drugs/
Youth Law Australia. (2021). Drugs. Retrieved from https://yla.org.au/qld/topics/teen-issues/drugs/#personal-searches
Police Powers — Action Ready
https://www.actionreadyqld.com/police-powers/#search-powers
