YOUR RIGHTS WHEN ARRESTED
PROTESTING IN VICTORIA’S NATIVE FORESTS
Do I have to show photo ID? No.
People are not required to carry photo identification
or show photo ID when requested. However, people driving vehicles on public roads must carry their
driver’s licence. Remember that when a police officer is considering an infringement
notice or to charge you without arrest (by summons), your co-operation may
influence his or her decision.
Do I have to give my name and address to police? Yes.
Police have the power to require the name
and address of a person they reasonably believe: has committed or is about to commit any offence; or may be able
to assist the investigation of a serious offence. If you are required to provide
your name and address, do so, and note the police officer’s name and rank
from the name badge that they are required to wear. (Your name, address and driver’s licence must
be produced for traffic offences when driving a motor vehicle.)
What are the penalties for failing to provide my name
and address to police?
Any person who refuses to provide their name
and address to police, or gives false details, can be fined up to $500.
Police may detain you longer if they are unsatisfied with your identity.
Do I have to answer questions asked by police? No.
Other than providing your name and address
you need not answer any questions. In the circumstances of a forest arrest,
refusal to answer police questions cannot be used against you in court (to
infer guilt). However, being selective about the questions you answer may
affect your credibility in court. Therefore if you intend to plead not guilty,
the best chance for a successful defence in court is to rely on your right
to silence (at least until you have received independent legal advice).
Do police have power to take my photograph? No.
You have the right to refuse to have your
photo taken by police. If you do not want to be photographed, you should make
your objection clear. If your photo
is taken against your wishes you can lodge a complaint in writing with the
senior officer present.
How long can the police hold me for? It depends.
Without being formally arrested, a person
need not accompany police to a police station for any reason. If you do not
want to accompany police, make it very clear that you do not consent to questioning
or going to the police station. If
arrested, the police must either charge you, and inform you of the
charges, or release you. If charged,
the police must bring you before a bail justice or the Magistrates’ Court
within a reasonable time (this is an open-ended definition allowing police
much flexibility in detention times). Unless there is a difficulty with identification
the time is not likely to extend beyond a few hours in a forest case.
Must I give fingerprints? Yes and No
No: If
the police have not charged you with, or have no grounds for suspecting
you have committed, an indictable or specified summary offence. Fingerprints cannot be taken from a child under 10 years old.
What is ‘obstruction’?
Under the Conservation,
Forests and Lands Act 1987 (Vic) it is an offence to hinder or obstruct
another person in the lawful carrying out of forest operations. What constitutes
a lawful forestry operation can be the subject of some argument. Recently
a protester successfully appealed against an obstruction charge because the
Code of Forests Practices had not been complied with. It is an offence under Commonwealth law for
a person to engage in unreasonable obstruction whilst taking part in
an assembly. A $2000 penalty applies.
What is ‘trespass’?
Any person
who is on the land of another and who refuses or neglects to leave the property
after being warned by the owner, occupier or their authorised representative
is guilty of trespass. A fine of up
to $1000 applies.
What constitutes resisting
arrest?
Under s52(1)
of the Summary Offences Act, resisting or hindering arrest is an offence.
This includes opposing arrest by use of force, and making the arrest or other
police action more difficult to carry out.
It does not matter whether the resistance or hindrance actually prevents
the arrest or other action. The maximum
penalty is six months jail or a fine of $2500.
An arrest is one person communicating
to another person that they are under arrest. In normal circumstances the
arresting person must give a clear reason for arresting the person arrested.
The arresting person need only have reasonable grounds (not proof) to make
an arrest. It is not an offence to
passively resist arrest, nor to run away before an arrest has commenced.
What is considered a ‘weapon’?
An offensive weapon
is anything that can be used, and is intended to be used as, a weapon (e.g.
a broken bottle). Thus a stick, a rock and many common objects may be considered
weapons.
The carrying
of knives is severely restricted. It is not lawful to carry a knife for the
purpose of self-defence. A knife may be carried in a safe and secure manner
consistent with lawful uses (e.g. employment, sport, recreation or entertainment,
or as part of a legitimate collection or display). Weapons including flick
knives, daggers, butterfly-knives and knuckle dusters are prohibited weapons
which must not be made, sold, purchased, possessed or carried or used in Victoria.
What powers do DSE officials and other ‘authorised
officers’ have? What law are they operating under?
An ‘authorised
officer’ is someone who is authorised to do certain things. These officers are different to police officers. An authorised officer can be a specified employee
of DSE, specified staff member of the Victorian Plantations Corporation or
any person under Part 9 of the Conservation, Forests and Land Act 1987.
An authorised officer is required to show their “Certificate of Appointment”
stating the relevant law they are appointed under and which parts of Victoria
it applies to. Check whether this Certificate of Appointment extends to
the land you are arrested on, especially if it is private land.
Under s78 of
the Forests Act authorised officers have power to “proceed”
against any person found committing any offence in the vicinity of a reserved
forest. Under s23 of the Victorian Plantations CorporationAct, authorised
officers can also proceed against anyone found committing a crime on private
land. Unless a power of arrest is specifically conferred by statute, an officer’s
powers are defined by the Crimes Act 1958.
Under the Land Act 1958, DSE officers
are also empowered to prevent intrusion, encroachment or trespass on specified
land. Authorised officers also have power to enter any building or land to
execute any work, exercise any power or make any inspection authorised under
the Forests Act (s95). Any authorised officer is prohibited from trading
in forest produce, or having any interest in any lease, licence or permit
for land or the working of any forest produce (s84). This means a forest worker
cannot be an authorised officer.
Do ‘authorised officers’ have citizen arrest
powers?
The Crimes
Act 1958 (Vic) allows any person to arrest another person committing
a statutory or common law offence. In
theory, this allows DSE officers the power to arrest protesters who are committing
an offence.
You should cooperate with
police and other authorised officers in a reasonable, non-provocative way.
Please note that this document
does not represent legal advice. It
is only meant as a guide.
If you require more information,
please seek legal advice.
This ‘Plain English’ information sheet
was produced by the Environment Defenders Office (VIC) Ltd - a community legal
centre specialising in environment and planning law. For more information on the EDO, visit our
website www.edo.org.au/edovic/edovic.htm We would like to thank the Reichstein
Foundation for funding this project.
The EDO would like to acknowledge that
much of the material presented here has been resourced from the Fitzroy Legal
Service Handbook 2003 with the permission of the Fitzroy Legal Service.
Thank you to Lawyers for Forests and their supporters for helping prepare
this document. For further information, see the EDO publication “Defend the
Defenders” (www.edo.org.au/edovic/publications.html) and
the Lawyers for Forests “Forest Activist Handbook” www.lawyersforforests.asn.au/forest_activist_hb.pdf.
For legal representation,
please contact Lawyers for Forests (your local contact or use the website),
or for a referral, call the Environment Defenders Office on 9328 4811.