Police Powers and Responsibilities
Updated August 2019
It is important to recognise that police aren’t legally allowed to do whatever they want when carrying out their jobs. You should observe their behaviour at all times and consider making a complaint if something doesn’t seem right. Most actions will have a delegated “police liaison” role. This person may be responsible for answering police questions or concerns.
Police are governed by, and accountable to, the Police Powers and Responsibilities Act 2000 (Qld). The Queensland Police Service also has a Client Service Charter. These materials set out how the police are supposed to treat people, and what powers they have over members of the public or people they suspect are committing a crime. Despite this, police do not always follow the rules. There is a significant amount of anecdotal evidence among activists about police mistreatment and unethical behaviour.
These documents have different levels of enforceability. The new Human Rights Act 2019 (Qld) may also have an impact on how police must interact with people, which we will learn more about as it comes into force in January 2020.
Due to the wording of legislation, police tend to have broad discretionary powers and can rely on a wide definition of what is considered “reasonable”.
Record interactions with police
It’s important for someone to be filming police officers during an action so that you can ensure they behaved lawfully. If you think the police may confiscate your camera and wipe the photos/videos (a common tactic during protests), use a mobile phone to transmit or back up images before they can be deleted.
Police have a responsibility to be fair in their dealings with the community. In short, police are supposed to treat you fairly and with respect at all times. Police cannot discriminate against you in anyway. This includes discrimination based on the way you look, your age, gender or any other matter.
Police are supposed to be impartial and apply the law without fear or favour, but recent examples of police vehicles covered in coal seam gas company advertising or sponsored by coal seam gas companies, could suggest bias. You may wish to photograph any such sponsored cars in areas where police are heavy-handed in their approaches to protestors.
If you feel like police behaviour has been unethical, unfair or a breach of their powers, you may want to consider making a complaint.
Be aware that police may use certain tactics to enforce the law.
There is significant anecdotal evidence about police mistreatment and manipulation that has been used during arrestable actions. The police are allowed to lie.
For example, when police are trying to remove an obstruction caused by a protest, activists are often threatened with heavy fines, and more charges than it is reasonable to expect in the circumstances. This is why it is useful to know your rights, and the likely charges you may receive. Sometimes activists have also been told if they ‘unlock’ or leave voluntarily, that they will not receive any charges. This has not always proved to be the case.
Another tactic police have used towards environmental activists recently is to remove all their gear, including water, hat, sunscreen etc. They may also try and scare you by saying things like “this train is about to start again”, or try and make you think your actions will lead to injury to yourself or others.
If the police engage in this behaviour, it’s a good idea to remind them of their duty of care towards you.
“I believe your behaviour is breaching your duty of care towards me”
“you have a duty of care”.
In some protests where there have been ‘lock ons’ and police have refused to allow supporters to assist with toilet needs, or have refused access to water, it has been useful to contact both the Officer in Charge as well as any relevant police media units to assert these basic rights, and use social media to increase public awareness.
What to do during an incident
While most climate activists do everything they can to ensure actions are safe and calm, this won’t always be the reality on the day. Sometimes police violently mistreat protesters, stop them or treat them inappropriately, even where their behaviour appears to be perfectly legal. Members of the public and workers can also become agitated at an action or rally, and might want to disrupt or cause injury to participants.
What can you do while an incident is underway?
Immediately start filming the interaction, ensuring you’re as close as you can be. Remember that members of the public are allowed to film the police, though sometimes the police will try to make you stop.
Aim to de-escalate the conflict. If you have a relevant delegated liaison person (eg community liaison, worker liaison or police liaison) ask them to step in and let them try to de-escalate the conflict. Obviously if there is a violent incident occurring this may not always be appropriate. You could politely ask whether the police think their behaviour is reasonably necessary and would be considered ethical.
Note the details of the police involved. You can ask them for this information (name and rank) if you can’t easily obtain it from their identification badge.
If you think the unethical behaviour is serious, you can call the Officer in Charge at the officer’s police station at the time.
Do not swear at the police or engage in physical contact with the police.
Immediately try to gather witness statements and/or contact details of anyone who witnessed or experienced the mistreatment. Here’s a useful guide for making a witness statement. If it isn’t possible to collect these at the time, it can be useful to just take down names and phone numbers of folks involved and contact them as soon as possible.
Consolidate footage. If a few different people have recordings it can be helpful to have a centralised place (like a DropBox) where the footage can be gathered.
Consider alerting the media to the incident.
"Move on" directions
The direction may be given where:
your presence is causing anxiety to people entering or leaving a regulated place
a business owner or occupant has complained you are interfering with trade or business at the place
you are disrupting the peaceful and orderly conduct of any event, entertainment or gathering at a certain place.
your behaviour is disorderly, indecent, offensive or threatening.
Generally the police will make it clear if they are issuing a “move on”, and if you’re not sure whether that’s what’s happening, you can ask police- “are you issuing a formal move on order/direction?”
If police make a mistake in how they use their move-on powers, then the direction they give and any associated arrest for disobeying the direction will both be unlawful. However, the wording of the legislation is broad and allows for a large amount of police discretion. This means it can be difficult to prove they have acted beyond their power. We encourage you to observe interactions with the police and seek legal advice if you feel the police have acted unreasonably.
What happens if you don’t move on?
If you do not move on after being issued this order, you may be committing an offence and may be arrested for failing to comply with a police direction.
If you are given a move-on direction by police you should:
Ask if they are giving you a formal direction
Ask the reason why you are being given the direction
Make sure you know what the ‘prescribed place’ is - the area you must leave
Check how long you are barred from the area
Try to record the names and contact details of any witnesses to the incident, if possible
Try to record the name, number and station of the police officer giving the direction.
We encourage you to observe interactions with the police and seek legal advice if you feel the police have acted unreasonably.
If police make a mistake in how they use their move-on powers, then the direction they give and any associated arrest for disobeying the direction will both be unlawful. However, the wording of the legislation is broad and allows for a large amount of police discretion. This means it can be difficult to prove they have acted beyond their power.
Police are required to make a report each time they issue a move on direction.
It is generally best to refuse consent to a search, however, there are occasions when the police can search you, your car or your property without your consent and without a warrant. They can do this if they reasonably suspect that you may possess:
A dangerous drug
Tools to break into houses or cars
Something you plan to use to hurt yourself or someone else
Evidence that someone has committed an indictable offence (where this evidence could be hidden or destroyed).
A ‘dangerous attachment device’ that has been used or is to be used to disrupt a relevant lawful activity. Read more on Queensland’s lock-on laws here.
If you have been arrested
Once you have been arrested the police have the power to search you and confiscate property without your consent.
Police conduct during searches
Searches must be done by a person of the same sex unless the search is required immediately and no one of the same sex is available.
Please note that police policy when searching transgender and gender diverse individuals “requires officers to be discreet when searching a transgender person and to ensure that only officers of the same biological sex search the person.” This may be confronting. For more information and support see here.
The police are supposed to respect your privacy and dignity as much as practicable when conducting a search. Anecdotal evidence from activists suggests police do not always abide by this requirement. If you think they have behaved inappropriately in searching you, it’s a good idea to make a complaint to the Ombudsman.
Searching your car or other property
In Qld it is lawful for a police officer to take the steps they consider reasonably necessary to prevent the commission, continuation or repetition of an offence. This can include searching your vehicle and possessions.
You have the right to ask if the police have a warrant to search you or your vehicle. If they do not have a warrant you can refuse a search unless they describe why it is reasonably necessary. If they search your vehicle but it is later proved to be unlawful, any evidence found may be excluded.
The police can legally confiscate materials they suspect will be used in the course of committing an offence in the future, including banners, climbing equipment and more.
POLICE CHECKS ON CARS NEAR PROTESTS
Anecdotal evidence suggests that police have used wide interpretations of their powers in relation to searching the cars of activists. Routine checks in rural parts of the State near blockades are regularly conducted. It is a good idea to keep track of these, and file complaints where you think your rights have been breached. If you plan to take your car to an action, it’s also a good idea to ensure it is in good order and is road-worthy to avoid a defect notice or unwanted fine.
Searching your phone
Some people choose not to bring their phone to actions to ensure it cannot be confiscated. However, obviously having a phone may be important for capturing photos, using social media and recording interactions with police.
If you’re attending an action where there are likely to be police, it is always a good idea to have a passcode on your phone.
If police ask to go through your phone or your computer, you can refuse consent. They will then need to get a warrant to search this property, but they may seize the items in the meantime. Police can also obtain orders from the court that require you to release to police your security passwords or codes for access to these electronic devices.
Searching your home
Police are allowed to enter your property against your wishes and without your consent in certain circumstances.
These circumstances are limited, however, and it can be important in later court proceedings to know whether or not police have entered your home lawfully. If police do not have a specific legal right to come into your home and you refuse them entry, they are not allowed to come in. It is generally recommended to refuse consent to searches.
Under what circumstances can police enter your home?
If you consent to police entering your home
Where police have a warrant. You should ask to see the warrant and make a note of any incorrect details. It can be a good idea to get legal advice if the police have a warrant to search your home.
If the officer has an anti-terrorism preventative detention order to execute
In urgent circumstances (i.e. where a person has been seriously injured or is about to be harmed)
To investigate a case or to serve documents
To arrest or to detain someone who is in the house, if police have a reasonable suspicion to justify this action.
It’s crucial to remember that just because they have a warrant, you do not have to answer their questions and should use your right to silence at all times.
If you do not want police to enter your property, it is important to clearly tell them that you do not consent to their entry. You should make a note if there are witnesses who see and hear you refusing your consent to police entering your home. If the police do search your home, it’s a good idea to take note of whatever they say when they do so. Record the conversation if you can, then seek legal advice.
If you want more information about the rights and powers police have and do not have to search you or your property, check out the information here or seek legal advice.
Arrest is the process by which police can lawfully take you into their custody. If a police officer arrests you, you should ask for a reason. They can only arrest you with a reason.
When can I be arrested?
If a police officer has a reasonable belief that you have committed or are committing an offence; or
They have a warrant for your arrest.
A police officer has lawfully arrested you simply by saying “you are under arrest” or by physically restraining you. Police are not required to give you a warning prior to arresting you, but often they will. You should ask for the reason as a police officer can only arrest you if they have a reason.
A note about police force
Police officers can use reasonable force to arrest you. This means the police can only use the minimum amount of force necessary to arrest you. If you are complying with their orders and they use force against you, it’s a good idea to make notes or remember the officer’s name.
It is a good idea to remember the reason police give for your arrest. Sometimes the reason they give you might be different to the offence you are later charged with. This can be useful if there is concern your arrest was not lawful.
Be mindful of potential unrelated or accidental offences
Accidental offences might include:
Public nuisance (swearing, offensive language etc)
Carrying a weapon (or something that could be perceived as a weapon- for example, a pocket knife).
There’s a number of simple things you can do to avoid extra unwanted charges or accidental offences. Before going to an action always check your pockets and bag. At protests or actions, police may be looking to fine people, so be mindful of your environment.
More serious accidental offences might include trespass. Make sure you are aware of whether the protest you are taking part in is on public or private land.
‘ASSAULT / OBSTRUCT’
Another thing to be aware of is the broad definition of ‘assault or obstruct’ police in QLD. Resisting police officers in any physical manner (including going limp) has resulted in this charge in QLD. This can include after you have already been arrested. If you go limp and have to be carried/pushed by police it can result in an additional offence. Also note that assault/ obstruct are the same offence.