Knowing Your Basic Legal Rights

So it’s obvious to anyone reading that there has been a noticeable absence in my postings. Something to the tune of about two years in fact. The reason for this is that I thought it would be a world of fun for two years to work like a beaver with a coffee addiction and a constant need for validation, billing more hours in a week than I knew existed – these things don’t really lead to the most productive of social lives or online presences.

I decided after more than two years without so much as a sick day let alone a week off, that a sabbatical may do me some good. A very dear friend suggested that I should perhaps get back to writing my blog during this down time.

My first thought of course was – wait a minute, I have a blog?

Buried in a sea of internet favourites was a link to this place so here I am, back again. To start off I figure we’ll do something quite light before I start sinking my teeth into meatier subjects. So let’s begin with a basic refresher that I (and everyone else lacking imagination) like to call “know your rights”.

You’d think this would be a basic enough concept. It turns out that it really isn’t and by and large it makes people afraid of law enforcement, the court system and lawyers. We’re really all not so bad and every last one is there to assist you in navigating our legal system.

There is a litany of places online that will provide you with assistance and free legal centres where you can either call or book an appointment to discuss your rights further.

So with that in mind, I would like to begin with a basic field guide on police powers and what you do if you are stopped by a member of your state’s finest.

Q: Do I have to provide my identity/name and address

A: Police do have a right to ask for your identity, but you can refuse to provide it. There are of course some exceptions to this rule. You do have to provide it if:

–          You are driving a car and are suspected of a traffic offence or refuse a breath test

–          Police advise that they reasonably suspect your car was used to commit a crime

–          You are under the age of 18 and the police advise that they reasonably suspect you of carrying or consuming alcohol in a public place

–          It is reasonably believed that you have been a witness to a crime

–          You have been arrested

These are the main ones but it is important (and I cannot stress this enough) to communicate calmly and with respect if you are ever approached by police. Being rude, challenging or threatening really isn’t going to get you off to a positive start.

Q: Can police instruct me to move on?

A: You can more or less occupy any public space you desire as long as you are not doing anything unlawful. Just as long as you are not obstructing traffic, harassing or intimidating people, causing fear to others, or distributing illegal drugs, you shouldn’t have a problem .

When providing you any reasonable direction, it’s essential that police do the following:

–          Provide identification that shows they are police (if not in uniform)

–          Provide you with their name and police station

–          Inform you why they are giving the direction

–          Warn you that it may be an offence not to comply

Should you not follow the direction straight away, police officers have to repeat the direction before they can give you an on the spot fine or possibly charge you with an offence.

If you believe the direction is wrong or unlawful, you can choose to disobey. However, the recommended course of action is file a formal complaint later with your relevant state ombudsman’s office. If you refuse to comply and the police charge or fine you, you can elect to defend the matter before a Magistrate in court.

Q: Can I be searched?

A: Police can search you (and your car or other vehicle and possessions) if they have your consent or if they have reasonable grounds to suspect that you are carrying:

–          stolen goods or goods unlawfully obtained; for example, from the sale of drugs

–          prohibited drugs

–          an item that has been, or may be, used in a serious crime; for example, tools to break into a car or house

–          knives, weapons or ‘dangerous implements’

–          a laser pointer

Police also have the power to search you and your car if they have any reasonable grounds to suspect that:

–          it may have been used in connection with a serious offence

–          you are carrying stolen goods or unlawfully obtained goods

–          you are in possession of prohibited drugs

–          you have items that were used in a crime

–          there are circumstances in a public place or school where there is a concern of any risk to public safety

–          if the police suspect that anyone in the car has an arrest warrant

So what exactly does a search involve, I hear you ask. Well, Police can pat you down, ask you to remove your clothing and shoes, inspect your clothing and belongings and use a metal detection device.

Okay, now the big one a lot of people worry about while being searched or arrested is whether the police can perform a strip search. Usually I make them buy me a drink first… however, it is worth noting that Police can only perform a strip search only if they believe there are reasonable grounds to suspect that it is necessary. These kinds of searches are best carried out at a Police station, but they can do it somewhere else on the proviso that the circumstances are serious and require urgency. In these circumstances, Police are required to provide you with as much privacy as possible. The search should be conducted by an officer of the same gender, and done so in a private area out of sight of people of the opposite sex and anyone not involved in the search.

If you are facing any legal issues, the best piece of guidance I can offer you is to seek the aid of a lawyer. There are free legal centres throughout your state that provide this kind of help. You may qualify for legal aid, or choose to contact a friend or family member who can arrange this for you. If you are facing questioning, it is best to seek representation of some kind first before agreeing to proceed.

So this wraps up my first post in a long time. I welcome any questions you may have or will gladly point you in a more specific direction towards a colleague.

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