The Law Handbook 2024

Chapter 3.5: Arrest, search, interrogation and your rights 177 when performing those duties. Police members falling outside of the general requirement are not to be armed without the approval of an officer. All operational police must be armed in the normal course of their duties unless otherwise directed. Because of the inherent danger to all parties concerned, firearms are not to be carried by members while performing dedicated duty such as crowd control at demonstrations, industrial disputes, sporting events and other public entertainment events, without the approval of the Operations Commander. In those situations only arrest teams may be authorised to carry a firearm. Members are not to carry a firearm unless they have been trained and qualified in all aspects of the use of the particular firearm within the preceding six months. Members may only carry police issued firearms when authorised by a Police Commissioner. ( Victoria Police Manual , operations 101–3, table 101–3, section 5.1: carriage of operational safety equipment – general.) With the increased threat of terrorist attacks directed specifically at police, operational police were directed in 2015 to work in pairs and to carry their firearms. Detention The arresting officer must make it plain to the suspect by what is said and done that the suspect is no longer free. The restraint of liberty must be total. It is not necessary that after arrest the person should be touched, but force must be used or threatened. There is, however, a grey area in the law of arrest that arises where the person goes or stays with the police, believing that there is an obligation to do so. Technically, this does not constitute an arrest. In Victoria, a person is considered to be in custody if they have been arrested or are in the company of an investigating officer and are being, or are going to be, questioned or are otherwise being investigated, so long as the investigating officer has enough information to justify the person’s arrest for an offence (s 464(1) Crimes Act (Vic)). If the investigating officer has no power of arrest, as is the case for some summary offences, then the person is not in custody, even if they think they can’t leave. The definition of having been arrested has been extended to cover the situation of a person suspected of having committed an offence against a Commonwealth law, where that person is in the company of police and reasonably believes that they would not be allowed to leave. For arrest, there must be a total restraint of liberty and actual forceful restraint or action taken by the arrestor, creating a reasonable belief that if the suspect tried to leave then force would be used to stop them from doing so. Apersoncannot bedetained incustodyexcept under an arrest. Generally, there is no power for the police, or anyone else, to ‘detain a person for questioning’ (except for the power contained in the Australian Security Intelligence Organisation Act 1979 (Cth) referred to in ‘Arrest by warrant’, above). There are exceptional powers for Australian Federal Police and state police to stop, detain and search persons in a Commonwealth place if they suspect they might have committed or be about to commit a terrorist act. This power applies to any person who is in a ‘prescribed security zone’ (ss 3UA–3UK Crimes Act (Cth)). At the time of writing, the powers created by sections 3UA–3UK were subject to a sunset provision coming into effect on 7 December 2023; this means that these powers must not be exercised after that date. Unless a person is under arrest, they are not obliged to accompany police to a police station for any reason. At times, the police are unclear in their communication about whether a person has been arrested, so that they can rely on the person’s ‘consent’ to be questioned. If a person attempts to leave a place and is prevented from doing so by the police, then an arrest has taken place. If this happens, then the substance of the charges must be stated. A special obligation is placed on investigating officials where the person taken into custody is an Aboriginal or Torres Strait Islander person. The investigating official must notify the Victorian Aboriginal Legal Service ( VALS ) within one hour of taking the person into custody. If it is not practicable to do so within one hour, then as soon as it is practicable to do so. The investigating official must also notify the Aboriginal or Torres Strait Islander person that they have notified VALS as soon as practicable after making the notification (s 464FA Crimes Act (Vic)). Personal search (on arrest) Personal search (on arrest) for Victorian offences Police have no power to search a person prior to arrest, unless they are operating under a specific statutory power, such as the ‘stop and search’ power in relation