The right and necessity of citizens to detain suspected or actual criminals has long been recognized under both civil and common law.
Anyone is empowered to make a citizen’s arrest under the CRIMES ACT 1958 – SECT 458
Any man or woman may be arrested without warrant by anyone who witnesses someone commit an offence or crime, even if the person committing the offence is a member of the police:
S. 458(1)(a)(i) amended by No. 68/2009 s. 97(Sch. item 40.30).
S. 458(1)(b) amended by No. 37/2014 s. 10(Sch. item 36.13).
(b) when instructed to make a citizen’s arrest by any police officer having power under this Act to apprehend that person; or
S. 458(1)(c) amended by No. 117/1986 s. 6(Sch. 1 item 1(8)(a)).
(c) They believe on reasonable grounds that someone is escaping from legal custody, or aiding or abetting another person to escape from legal custody, or avoiding apprehension by some person having authority to apprehend that person in the circumstances of the case.
(2) For the purposes of paragraph (a) in subsection (1) “offence” means offence at common law or a contravention of or failure to comply with a provision of an Act of Parliament, and unless otherwise by Act of Parliament expressly provided does not include a contravention of or failure to comply with a rule regulation by-law or other law made under an Act of Parliament.
S. 458(3) amended by Nos 9008 s. 2(1)(Sch. item 2(k)), 68/2009 s. 97(Sch. item 40.31).
(3) A person who has been apprehended without warrant pursuant to the provisions of paragraph (a) in subsection (1) in respect of any offence punishable on summary conviction (not being an indictable offence that may be heard and determined summarily) and taken into custody shall be held in the custody of the person apprehending him only so long as any reason referred to in the said paragraph for his/her apprehension continues and where, before that person is charged with an offence, it appears to the person arresting that person that the reason no longer continues the person arresting that other person shall, without any further or other authority than this subsection, release that person from custody without bail or cause him/her to be so released and whether or not a summons has been issued against him/her or a notice to appear has been served on him/her with respect to the offence alleged.
S. 458(4) inserted by No. 68/2009 s. 97(Sch. item 40.32).
(4) In subsection (3), “notice to appear” has the same meaning as in the Criminal Procedure Act 2009.
S. 459 (Heading) inserted by No. 43/2011 s. 17(1), amended by No. 37/2014 s. 10(Sch. item 36.14).
S. 459 substituted by No. 8247 s. 2, amended by No. 43/2011 s. 17(2)(3) (ILA s. 39B(1)).
Under the same common law custom of pro toto posse suo (see above) that empowers any group of adults to unite and stop those causing harm, the right of Citizens’ Arrest is not restricted or negated by a higher authority because of the recognition that any man or woman has the competence and obligation to see and directly halt wrongdoing in their community.
General guidelines about powers of arrest
The procedure for performing a Citizens’ Arrest is as follows:
Using force when detaining someone
The gudelines in all states govering the use of force in making an arrest is generally the same, but you should check to make sure that they are similar to these:
A person shall not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
As a general rule, any force used must be reasonable and proportionate. The circumstances when some level of force may be justified include:
Tips to improve your personal safety when detaining a person
Points to remember for company security
|Emergency (all states)||You or someone else is in immediate danger, the offender is still in the vicinity, or there has been a serious accident.||Ph: Triple Zero (000) and ask for police. Remain on the phone until police arrive.|
|Crime Stoppers (all states)||Report illegal activity, or provide information on unsolved crimes anywhere in Australia. You may remain anonymous.||Ph: 1800 333 000 (toll free)|
|Police attendance (All states except Victoria and Queensland)|| You require police assistance, but there is no immediate danger.
Report suspicious activity, theft, car accident with no serious injury.
|Ph: 131 444|
|Police attendance at Airports||You require police assistance at International Airports at both Domestic and International terminals.||Ph: 131 AFP (131 237)|
Citizens can normally hand over those they have detained to an authorized Common Law peace officer or a Sheriff of the court. The arresting parties must be willing to appear in court and give sworn testimony concerning their actions.
The crucial importance of the power of Citizens’ Arrest is that it trains and empowers citizens to take responsibility for policing their communities, and for the law itself. It moves democracy from theory to action.