This article explores the legal framework surrounding police use of force in Australia, including the relevant laws, rights of individuals, and legal recourse in cases of excessive force.
With a Warrant: If the police have obtained an arrest warrant from the court.
Without a Warrant: In cases where they reasonably suspect that a person:
Has committed or is committing a crime.
Is likely to commit a serious offence.
Needs to be prevented from committing further offences.
Needs to be brought to court for failing to comply with a court order.
Under Section 3W of the Crimes Act 1914 (Cth), police are granted the power to arrest a person without a warrant if they suspect it is necessary for law enforcement purposes.
"A police officer may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest."
This principle applies nationwide, with slight variations in state and territory legislation.
What is Reasonable Force?
Reasonable force refers to the minimum amount of force required to restrain or detain a person effectively. Factors that determine whether force is reasonable include:
The severity of the crime – More force may be justified if the suspect poses a threat.
The behaviour of the suspect – If a person resists arrest, force may be necessary.
The presence of weapons – If a suspect is armed, greater force may be used.
The risk to police and public safety – Officers must ensure their safety and that of others.
Examples of reasonable force:
Using handcuffs to prevent a suspect from fleeing.
Physically restraining a person who resists arrest.
Using non-lethal force, such as a baton or pepper spray, in certain circumstances.
What is Excessive Force?
Excessive force occurs when police use more force than is necessary to arrest or control a suspect. This can include:
Hitting or kicking a suspect who is already restrained.
Using a taser or baton when the suspect is not resisting.
Chokeholds or other dangerous restraints that pose a risk of serious injury or death.
Prolonged use of pepper spray when it is unnecessary.
If police use excessive force, they may be subject to civil and criminal liability, and the arrested individual may have grounds for legal action.
What Are Your Rights If Police Use Force?
If you are being arrested, it is essential to know your rights:
Explain that you are being arrested and provide legal grounds for the arrest.
Right to Remain SilentUnder Section 23F of the Crimes Act 1914 (Cth), you have the right to remain silent, except for providing your name and address when required.
Right to Legal RepresentationYou have the right to contact a lawyer before answering any questions.
Right to Refuse a Search (in Some Cases)Police can only conduct searches under specific conditions. If they search you unlawfully, the evidence obtained may be inadmissible in court.
Right to ComplainIf you believe police have used excessive force, you can:
Understanding your rights regarding police use of force is essential to ensuring fair treatment under Australian Criminal Law. While police have the authority to use reasonable force when making arrests, excessive force is unlawful and subject to legal consequences. If you believe your rights have been violated, seek legal advice immediately.
