Right to Know Grounds of Arrest
Written in plain language for general understanding. This is educational content, not legal advice. Based on Commonwealth Acts of Parliament, federal regulations, and official government guidance.
What is this right?
Under section 3W of the Crimes Act 1914 (Cth), an Australian Federal Police (AFP) officer may arrest you without a warrant only if they have reasonable grounds to believe you are committing, or have committed, a Commonwealth offence. They must also believe that arrest is reasonably necessary for reasons such as ensuring you appear in court, preventing further offences, or preserving evidence.
At the time of arrest, the officer must tell you the grounds for your arrest. This is a long-standing common law requirement confirmed by Australian courts, and it is reinforced by section 23F of the Crimes Act 1914, which requires that you be cautioned and informed of your rights.
If police do not tell you why you are being arrested, the arrest may be unlawful. An unlawful arrest can result in evidence being thrown out in court, and you may have a claim for wrongful arrest.
When does it apply?
This right applies whenever an Australian Federal Police officer arrests you for a Commonwealth (federal) offence.
- It covers offences under federal laws such as the Crimes Act 1914, the Criminal Code Act 1995, drug importation laws, and fraud against the Commonwealth.
- It applies to all people in Australia, including citizens, permanent residents, and visitors.
- State and territory police have similar obligations under their own laws, but this right specifically covers federal arrests.
What should you do?
- Ask clearly: "Why am I being arrested?" and "What offence am I being arrested for?"
- Listen carefully to the officer's response and try to remember or write down their exact words.
- Ask for the officer's name and badge number.
- Stay calm and cooperate physically while noting any concerns.
- Ask to speak to a lawyer as soon as possible.
What should you NOT do?
- Don't physically resist the arrest, even if you believe it is unlawful. You can challenge it later in court.
- Don't argue or become aggressive — this can lead to additional charges such as resisting arrest under s 7A of the Crimes Act 1914.
- Don't assume you must answer questions just because you have been arrested — you still have the right to silence.
- Don't sign anything or make a statement before speaking with a lawyer.
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