Updated on 16 December 2022

Activist Rights

Being Arrested

Estimated reading: 3 minutes

The police can arrest you if they believe you have broken a law.

Police cannot arrest you just for “questioning”.

If police ask you to go to the station to answer questions, you can decide if you will go or not.

You must go with police if:

  • you are under arrest; or
  • you have been found drink-driving (or drug-driving) and police need you to go to a police station for a breath test.

It is an offence to actively resist or hinder a legal arrest (yours or another’s).

If the police arrest you (including putting you in a police van), you should ask:

  • “Am I under arrest?” and
  • “What am I under arrest for?”.

You should not have any other conversations with police (except to provide your name and address) until you have spoken to a lawyer.

It is not necessarily an offence to refuse to co-operate, for instance by lying down. You don’t have to help police arrest you, but they may use “reasonable force” to take you into custody.

The Victorian Police Manual states that:

“Passive resistance – means a non-violent refusal to cooperate, including a refusal to comply with directions. This does not include the linking of arms nor the holding onto of structures.”(VPM Instruction 107-1 Crowd control 3/11/03)

It is also not an offence to run away before an arrest takes place.

However, running away may be used in court as evidence of your “consciousness of guilt” (that you knew you were doing something illegal).

If you are arrested and taken to police cells, the police will usually try to interview you (ask you questions about what happened).

You should demand to speak to your lawyer before a police interview.

You can also decide to give a “no comment” interview. This means: answering “no comment” to every questions (except your name and address). 

If you are participating in a protest, it is a good idea best to have the phone number of a lawyer with you.

If you don’t have the this, you can ask police for a list of available lawyers.

If police refuse you access to a lawyer, you can give a “no comment” interview. When you get out, speak to a lawyer and tell them the police refused you access to a lawyer. 

If you are Aboriginal or Torres Strait Islander, you should tell the police immediately.

The police must then notify the Victorian Aboriginal Legal Service.

VALS will then conduct regular welfare checks on you and try to speak with you.

It is your decision if you want to speak with VALS.

VALS can assist you with health or other needs in custody as well as speaking to a VALS lawyer.

If you are not an Australian citizen, you should tell the police immediately.

You must be allowed to contact your consulate, if you want to.

If you believe you were arrested unlawfully or if you were hurt by police, it is important to find people who witnessed your arrest.

It is important to ask these witnesses to write a statement of what they saw and to give you any photos or videos that have of your arrest. 

It is very important to get details about the identity of the police who arrested you. Sometimes different police turn up in court claiming to be the arresting officer. If you can expose that with your own evidence, the police evidence will be disregarded.

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