Right to Legal Representation (Australia) (2026)
About this article
Sourced from Commonwealth Acts of Parliament, federal regulations, and official government guidance. State-level information reflects each state's own Acts and court decisions. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards
Compare by state
Statute citations are verified per state. Select a state to jump to its full section below.
| Primary statute | |
|---|---|
| New South Wales | Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) |
| Queensland | Police Powers and Responsibilities Act 2000 (Qld) |
| South Australia | Summary Offences Act 1953 (SA), s 74D — right to legal advice |
| Tasmania | Criminal Law (Detention and Interrogation) Act 1995 (Tas), s 4 — right to lawyer |
| Victoria | Charter of Human Rights and Responsibilities Act 2006 (Vic) |
| Western Australia | Criminal Investigation Act 2006 (WA) — right to legal representation |
What is this right?
Under section 23G of the Crimes Act 1914 (Cth), if you're arrested for a Commonwealth offence, you have the right to communicate with a legal practitioner of your choice. The investigating official must inform you of this right and give you a reasonable opportunity to contact a lawyer before questioning begins.
The right is reinforced by common law and the High Court has treated it as fundamental to a fair trial — Dietrich v The Queen (1992) being the case lawyers cite. If you can't afford a lawyer, contact Legal Aid in your state or territory, or ask the AFP to help connect you with duty counsel.
Police must delay questioning for a reasonable time so you can get advice. Refusing access or rushing past the right can lead to evidence being excluded under s. 138 of the Evidence Act 1995 (Cth) — and Australian courts use that discretion regularly.
When does it apply?
This right applies whenever you are arrested or detained by the AFP for a Commonwealth offence.
- You can exercise this right at any time during your detention, not only at the start.
- It applies to all people, regardless of citizenship or residency status.
- If you are under 18 or have a mental impairment, you are also entitled to have an interview friend present under s 23H.
What to Do If Australian Federal Police Deny You Access to a Lawyer
- Say clearly: "I want to speak to a lawyer before answering any questions."
- If you do not have a lawyer, ask police to help you contact Legal Aid or a duty lawyer.
- Call the Legal Aid hotline for your state or territory — the number is available 24 hours in most jurisdictions.
- If you are under 18, ask for a parent, guardian, or interview friend to be present.
- Do not answer any substantive questions until you have received legal advice.
What should you NOT do?
- Don't waive your right to a lawyer under pressure — police may suggest it is faster to proceed without one, but this is your choice.
- Don't accept legal advice from police officers — they are not acting as your lawyer.
- Don't assume you cannot afford a lawyer — Legal Aid provides free advice to people in police custody.
- Don't begin answering questions thinking you can stop later — anything you say from the start can be used against you.
About Police Encounters in Australia
If police stop you, you have the right to know why and to contact a lawyer. State police handle most enforcement; the AFP handles Commonwealth offences under the Crimes Act 1914, which caps federal investigation at four hours under Part IC. Home searches generally need a warrant. You keep a right to silence, though some states (notably NSW) allow adverse inferences in limited cases. Complaints go to oversight bodies — LECC in NSW, IBAC in Victoria, the Commonwealth Ombudsman for AFP.
Worked Examples
ScenarioPolice want to interview you after arrest, but you haven't been able to reach a lawyer yet.
OutcomeYou generally have the right to a reasonable opportunity to contact a lawyer before any formal interview. Tell police clearly: 'I want to remain silent and I want to speak with a lawyer.' Ask for the Legal Aid 24-hour phone line for the state you're in. Don't sign anything or answer questions until you've actually spoken with a lawyer.
Reflects general Australian police-powers law and Legal Aid practice across states. Educational information, not legal advice — exact custody and interview rules vary by state.
Common Questions
Do I always get a lawyer if I ask?
Police must give you a reasonable opportunity to contact a lawyer. You can call your own lawyer, or ring Legal Aid in the state where you are — every state has a 24-hour phone line for people in custody. If you can't afford a private lawyer, Legal Aid can advise on eligibility for ongoing representation.
Can police interview me before I speak to a lawyer?
Generally not without giving you a reasonable opportunity to contact one. If they try, say clearly on the record: 'I want to remain silent and I want a lawyer first.' Lawyers strongly advise not answering interview questions or signing anything until you've actually spoken with one.
What about young people in custody?
Children and young people generally have additional protections, including the right to have a parent, guardian, or independent person present during questioning. Police must take particular care with vulnerable people. Legal Aid lines and Youth Legal Services in each state can advise quickly.
Can a lawyer be present during the interview?
Usually yes — if you arrange one. A lawyer can advise you before and during the interview and help you understand what's being asked. Legal Aid can sometimes arrange phone advice or attendance in person, depending on the state and the seriousness of the matter.
What is the right to legal representation right in Australia?
Under section 23G of the Crimes Act 1914 (Cth), if you're arrested for a Commonwealth offence, you have the right to communicate with a legal practitioner of your choice. The investigating official must inform you of this right and give you a reasonable opportunity to contact a lawyer before questioning begins.The right is reinforced by common law and the High Court has treated it as fundamental to a fair trial — Dietrich v The Queen (1992) being the case lawyers cite. If you can't afford a lawyer, contact Legal Aid in your state or territory, or ask the AFP to help connect you with duty...
When does right to legal representation apply?
This right applies whenever you are arrested or detained by the AFP for a Commonwealth offence.You can exercise this right at any time during your detention, not only at the start.It applies to all people, regardless of citizenship or residency status.If you are under 18 or have a mental impairment, you are also entitled to have an interview friend present under s 23H.
What should I do if Australian Federal Police are questioning me and won't let me speak to a lawyer?
Say clearly: "I want to speak to a lawyer before answering any questions."If you do not have a lawyer, ask police to help you contact Legal Aid or a duty lawyer.Call the Legal Aid hotline for your state or territory — the number is available 24 hours in most jurisdictions.If you are under 18, ask for a parent, guardian, or interview friend to be present.Do not answer any substantive questions until you have received legal advice.
What mistakes should I avoid with right to legal representation?
Don't waive your right to a lawyer under pressure — police may suggest it is faster to proceed without one, but this is your choice.Don't accept legal advice from police officers — they are not acting as your lawyer.Don't assume you cannot afford a lawyer — Legal Aid provides free advice to people in police custody.Don't begin answering questions thinking you can stop later — anything you say from the start can be used against you.
State-by-state details
New South Wales
Primary statute: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Full New South Wales guide →Queensland
Primary statute: Police Powers and Responsibilities Act 2000 (Qld)
In Queensland, the right to legal representation in police custody is protected by the Police Powers and Responsibilities Act 2000 (Qld) and the Human Rights Act 2019 (Qld).
- Under section 397 of the PPRA, a person detained for questioning must be informed of their right to communicate with a lawyer and to have a lawyer present during questioning.
- The Human Rights Act 2019 (Qld), s 32(2)(b), provides that a person charged with a criminal offence has the right to communicate with a legal practitioner.
- Queensland Legal Aid operates a telephone advice service available to people in police custody, including after hours.
- For Aboriginal and Torres Strait Islander persons, the Aboriginal and Torres Strait Islander Legal Service (ATSILS) provides a custody notification service. Under the PPRA, police must contact a support person for Indigenous detainees.
- For children (under 17 in Queensland), the Youth Justice Act 1992 (Qld) requires that a parent, guardian, or other support person be present during police questioning, in addition to the child's right to a lawyer.
South Australia
Primary statute: Summary Offences Act 1953 (SA), s 74D — right to legal advice
In South Australia, a detained person has the right to communicate with a legal practitioner. Under section 74D of the Summary Offences Act 1953 (SA), police must inform a person taken into custody of certain rights, including the right to communicate with a lawyer.
- Police must allow you to contact a lawyer before questioning begins. If you request a lawyer, police should delay questioning for a reasonable time to allow the lawyer to attend or provide advice by phone.
- The Legal Services Commission of SA operates a duty solicitor service at Magistrates Courts across the state and can be contacted for advice in custody situations.
- For Aboriginal and Torres Strait Islander people, the Aboriginal Legal Rights Movement (ALRM) provides legal assistance. SA Police policy requires officers to contact a custody notification service whenever an Aboriginal or Torres Strait Islander person is taken into custody.
- If you are a child (under 18), police must make reasonable efforts to contact a parent, guardian, or responsible person before questioning, consistent with the Young Offenders Act 1993 (SA).
Tasmania
Primary statute: Criminal Law (Detention and Interrogation) Act 1995 (Tas), s 4 — right to lawyer
In Tasmania, a detained person's right to legal representation is set out in the Criminal Law (Detention and Interrogation) Act 1995 (Tas), which establishes the rights of persons taken into custody.
- Under section 4 of the Act, police must inform a detained person of their right to communicate with a legal practitioner and provide reasonable facilities to do so.
- If you request a lawyer, police should delay questioning for a reasonable time to allow the lawyer to attend or provide advice by phone.
- Legal Aid Tasmania provides a duty lawyer service at Magistrates Courts across the state and can be contacted for urgent advice during custody situations.
- For Aboriginal and Torres Strait Islander people, the Tasmanian Aboriginal Legal Service (TALS) provides legal assistance. Tasmania Police follow custody notification protocols for Indigenous detainees.
- If you are a child (under 18), police must contact a parent, guardian, or appropriate adult before questioning, consistent with the Youth Justice Act 1997 (Tas).
Victoria
Primary statute: Charter of Human Rights and Responsibilities Act 2006 (Vic)
Full Victoria guide →Western Australia
Primary statute: Criminal Investigation Act 2006 (WA) — right to legal representation
In WA, the right to legal representation in police custody is protected by the Criminal Investigation Act 2006 (WA) and police standing orders.
- Under section 138 of the CIA, a person who is arrested must be informed of the right to communicate with a lawyer and to have a lawyer present during questioning. Police must also inform the person of the right to communicate with a relative or friend.
- Legal Aid WA operates a custody notification service providing telephone legal advice to people in police custody, including after-hours.
- For Aboriginal and Torres Strait Islander persons, the Aboriginal Legal Service of WA (ALSWA) provides a custody notification service. WA Police are required to notify ALSWA when an Aboriginal or Torres Strait Islander person is taken into custody, under the recommendations of the Royal Commission into Aboriginal Deaths in Custody.
- For children (under 18), the Young Offenders Act 1994 (WA) requires that a responsible adult be present during police questioning, in addition to the child's right to a lawyer.
Right to Legal Representation in other states
Same topic, different jurisdiction. Pick the one that applies to you.