Do Police Have The Power To Arrest You?

The power of arrest in Victoria is derived from the following sections of the Crimes Act 1958 (‘Crimes Act’):

  • Section 457
  • Section 458
  • Section 459

Section 457 of the Crimes Act gives the police power to arrest you without a warrant if it is pursuant to the Crimes Act or some other Act that expressly provides for a power of arrest. Other important Acts that give police a power of arrest include:

  • The Family Violence Protection Act 2008
  • The Liquor Control Reform Act 1998
  • The Personal Safety Intervention Orders Act 2010
  • The Road Safety Act 1986
  • The Summary Offences Act 1966
  • The Transport (Compliance and Miscellaneous) Act 1983

If police do not arrest you under a power derived from an Act then they must only arrest you if they have authority from a warrant. You may be able to ask the police station if there is a warrant that exists for you and to inspect it. However, you do not have a ‘right’ to see it and your request may be refused. The rules regarding warrants to arrest, search warrants, warrants to imprison, remand warrants and warrants to seize property can be found in Division 3, Part 4 of the Magistrates’ Court Act 1989(Vic).

Unlawful Arrest

If you have been arrested unlawfully then certain ramification will follow, e.g. if you used reasonable force during an unlawful arrest it will be deemed legal. Generally, your arrest may be deemed unlawful if it breaches the criteria set out in the Crimes Act. The duties and obligations of police whilst making an arrest are contained in the Victoria Police Manual and you should consult your legal representative for further instructions on how these apply to your particular circumstances.

Victorian Powers Of Search And Seizure

Police do not generally have the power to search you or your premises without being authorised to under a statute or search warrant. However, statute does give police some noteworthy powers including:

  • Police have the power to enter and search premises for the purpose of arresting a person they believe on reasonable grounds has committed a serious indictable offence, or is escaping from legal custody (Sections 458,459,459A Crimes Act)
  • Sections 81 and 82 of the Drugs, Poisons and Controlled Substances Act 1981(Vic) give police the power to search you
  • Sections 10 and 11 of the Control of Weapons Act 1990 (Vic) give police power to search you
  • Significant powers are contained in Section 157 of the Family Violence Protection Act 2008 (Vic) for police to enter and search premises without a warrant

The issue of search warrants by magistrates have specific provisions located in Section 465 of the Crimes Act and in the Magistrates’ Court Act 1989.

If you would like any more information or would like one of our expert lawyers to assist you please contact us anytime on 0403 297 655.