Police, Courts and Prisons
In Australia, every state and territory has slightly different police, courts and prison systems.
However, there are some rights that exist across state borders. In your interactions with police, courts and prisons you always have the right to safety, silence, information and supports.
This page explains your rights with the police, in courts and in prisons and offers information to help you interact with the justice system.
Tip: If you are experiencing or witnessing a crime, call 000.
Watch the Law Society of NSW video about ‘The Rule of Law’ and how it applies to your rights in Australia:
The situation
Across Australia, people with disability are more likely than non-disabled people to have interactions with the criminal justice system, police, prisons and in courts. People who are Aboriginal or Torres Strait Islander or who have intellectual, cognitive and/or psychosocial disabilities are represented in particularly high numbers in these contexts.
In Australia:
- people with disability, particularly cognitive and psychosocial disability, are more likely to interact with the criminal justice system than people without disability
- 50% of people entering prison are people with disability, despite making up less than 20% of the population overall [1]
- Aboriginal and Torres Strait Islander people make up 28% of people in prison full-time, yet only 2% of the overall population [1]
- it is estimated that there are at least 100 people who have NOT been convicted being held in prisons, psychiatric units and detention services under ‘mental impairment’ legislation [2]
- people with disability make up almost 40% of those living in poverty, and are in turn more likely to be forced to take part in crimes, such as theft, in order to survive
- women with disability are significantly more likely to be subject to violence and abuse that may result in police involvement [3]
- Aboriginal and Torres Strait Islander women are 35 times more likely to experience family violence, 80 times more likely to sustain serious injury requiring hospitalisation and 10 times more likely to die due to family violence than non-Aboriginal and Torres Strait Islander women. [4]
The Police and Justice
If you are in immediate danger or experiencing an emergency, you should call 000 now.
There are a range of reasons why you may need to contact the police. These could include:
- you have seen or become aware of a crime such as an assault, robbery or vandalism
- you are a victim of a crime such as a robbery or assault
- you have been in a car crash
- you are experiencing or witnessing violence
- you are concerned for your safety or the safety of others
- you have a psychosocial disability and are considered to be in danger of hurting yourself or someone else
- someone tells you they are planning on hurting themselves or someone else.
If you feel like you should contact the police, but you are not sure, you should always contact them anyway. Even if the situation does not require the police to become involved, you can still talk to the police about what you should do. Remember - You always have the right to ask for help.
Tip: To prepare for situations involving the Police, It may be helpful to review our page on planning for Disasters and Crises.
Your rights with the police
If you are contacted, approached or arrested by the police, it is important that you cooperate with them. However, you do have rights in any interaction with the police regardless of your disability, race, ethnicity, age, gender, sexuality or class background. This includes:
- the right to ask for a female police officer
- the right to information you can understand
- the right to stay silent
- the right to have a support person with you
- the right to healthcare, medical and assistive aids that you need.
Right to information
If the police believe you have committed a crime or are considered to be a danger to yourself or others, you can be arrested or taken in for mental health assessment. During an arrest, the police must tell you that you are being arrested and explain why.
You have the right to be told what is happening by the police in a way that you can understand. For example, you may need an interpreter or a support person. You have the right to ask for this and you do not have to have a conversation with the police until a person to support you is present.
Right to privacy
In some instances, police are able to search your property (e.g. your house, car, clothes or bags). This is called a search warrant.
There are different laws in each state regulating search warrants. Police generally do not have the power to enter and search a place or a person unless:
- the person consents to the search
- the police believe a serious offence has or will be committed
- the police believe the person has illegal drugs
- the police believe the person is at serious risk of harming themselves or others.
If police do not have a search warrant, you have a right to retain your privacy. This means that they cannot enter your home or search your belongings, clothes or body.
Tip: To learn more about search warrants you can visit the GoToCourt.com website (external link).
Right to silence
When you are talking to the police, it is important that you give them your correct name, address and age, or show them an ID card. You do not have to answer any other questions if you don’t want to. It is in your best interests to request a support person (e.g. a family member, friend, advocate, or lawyer) to be with you before you provide any information to the police.
If you are being arrested, you are required by law to go with the police and do what they say. If this happens, you have a right to take any aids that you need with you such as a cane or assistance dog. If you are not being arrested, you do NOT legally have to go with the police.
Rights when making a statement
In Australia, you may be asked to make a statement if you are a person accused of a crime or you are a witness of, or victim of a crime. You cannot be forced to make a statement. You should always make sure you know what crime is being investigated and know what the facts are before you decide to answer questions or make a statement to police.
Whenever you are involved with police, or have witnessed a crime, it can be helpful to have a record of what happens in case you have to give a statement. You can make a record in lots of ways. For example, you can:
- write it down
- take pictures
- take a video on your phone
- make a voice recording.
If you are a witness or victim of a crime, giving a statement to police may help them to investigate the case. Generally, it is helpful to give a statement as a witness. However, you can be charged if your statement is considered to be untruthful. If you are a witness, it is important that you tell the truth and ask for a copy of your statement. If you are accused of a crime or unsure about your situation, you should never make a statement without talking to a lawyer first.
Tip: To find disability legal support in your area, you can go to the Australian Human Rights Commission website (external link).
Right to call for support
If you are contacted, approached or arrested by police, it is in your best interests to contact a support person as soon as you can. This could be a friend, a family member or an advocate. You have a right to talk to your support person in private, without the police listening to your conversation. You also have the right to call or talk to a lawyer or an advocate.
If you are under the age of 17, you have the right to have a parent, guardian or carer with you whenever you interact with police. The same rights apply if you are an adult with an intellectual, cognitive or psychosocial disability.
Tip: You can find an advocate using the Australian Government Disability Advocacy Finder (external link).
Right to other supports
If you require specific aids, assistive technology or information to be able to understand and interact with the police, you have a right to ask for this. This could be, for example, a hearing aid or hearing loop, documents in accessible electronic formats, an Auslan interpreter or information in a different language.
You may also have the right to additional supports, depending on your circumstances. If you are arrested, it is important that you talk to a lawyer as soon as you can. They will be able to explain what all of your rights are in detail.
Note: We acknowledge that these services may not need all your support needs and that police may not always uphold your rights.
Courts
In Australia, you have a right to go to court and take part in a fair trial or hearing. These rights are supported by article 14 of the International Covenant on Civil and Political Rights (ICCPR).
Tip: You can learn more about the International Covenant on Civil and Political Rights (ICCPR) on our page about United Nations Conventions.
Why go to court?
People go to court for many different reasons. These could include:
- to claim money
- to seek protection from violence
- to defend or respond to a charge by the police
- to serve on a jury or witness another person’s court case
- to be given a decision about custody of your child if you have separated from their other parent, or your child has been taken away from you by Child Protection.
Tip: You can learn more about interacting with the child protection system on the Bumpy Road website (eternal link).
Which Court?
In Australia there are different types of courts for different issues and groups of people. These are separated into Federal and State courts.
Federal Courts
In Australia, there are four main types of Federal Courts. They are the High Court of Australia, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia.
High Court - The High Court of Australia deals with matters that relate to the Australian Constitution. It also deals with very high-level appeals from other Australian Courts.
Federal Court and Federal Circuit Court - The Federal Court and Federal Circuit Court of Australia deal with organisational matters relating to corruption, industrial relations disputes and taxation. The Federal Circuit Court also deals with cases that relate to migration and some family law matters.
Family Court -The Family Court of Australia has courts in every state and territory, and deals with family matters such as divorce, family violence, custody and child support disputes in all states and territories except Western Australia (WA). In WA, family matters are usually heard in the State Magistrates’ courts (see below).
State Courts
In each state and territory, the different types of courts include:
Local and Magistrates Courts – Local courts deal with most cases that relate to monetary claims involving less than $40,000 and criminal cases such as theft and drink driving. Magistrate’s courts include Children’s Courts, Minor Debts Courts and Industrial Magistrates Courts. Some states also have Magistrates Courts specifically for Aboriginal and Torres Strait Islander people.
Children’s Courts – Children’s and Youth Justice Courts are Magistrates Courts that deal with crimes against or committed by children.
District Courts – District Courts are the next level up from Magistrate Courts. District Courts hear appeals from Magistrates Courts as well as some criminal cases dealing with issues such as robbery and sexual assault.
Supreme Courts – Supreme Courts are the highest level of court in each state or territory. Supreme Courts usually only deal with complex court cases, or very serious criminal matters such as murder, manslaughter, child abuse, sexual violence, and serious drug offences.
Rights in Court
Right to a fair trial
When you go to court, you always have the right to a fair trial or hearing regardless of your race, ethnicity, age, gender, disability, sexuality or class background. This means that you have the right to speak or to have a lawyer speak for you. Your lawyer also has the right to ask questions related to your case. The judge or jury assigned to your trial or hearing must make a decision about the case without bias and based only on the facts available to them.
Tip: You can learn more about your right to a fair trial on the Australian Government Attorney-General’s Department website (external link).
Right to legal support
If you have to go to court, it is important to talk to a lawyer. You can organise your own lawyer or contact your local community legal service to access a lawyer for free.
In Australia there are different types of services that may be helpful to you depending on your circumstances. You can click on the links below to find a service that meets your needs:
- Aboriginal and Torres Strait Islander legal services (external link)
- Disability Legal Services (external link)
- Legal Aid Commissions (external link)
- Legal Services for Victims of Crime (external link)
- Women’s Legal Services (external link)
- Youth Law Australia (external link).
Tip: You can find your local community legal service on the Community Legal Centres
Australia website (external link).
Right to information and supports
If you have to go to court, you may receive information that you need to read. You have the right to ask for this information in a format that you can understand. This includes large print, braille, documents in an accessible electronic format, Easy Read, or an interpreter, advocate or support person to help you.
This right also applies to when you appear in court. If you require an interpreter, support person or hearing loop, you have the right to ask for this to be arranged.
Right to safety
You always have the right to be safe at court and the courts have a duty of care to make sure you are not harmed. Security is provided at courts to make sure everyone is safe. Many courts use walk-through metal detectors and x-ray machines to check what people bring with them into the court room, just like at the airport.
In court cases that relate to violence or abuse, you may feel worried about seeing the person who was violent. If this is the case, you should talk to the court or your lawyer about making arrangements that will make you feel safe. For example, this could be taking a support person with you, attending via videoconference, or accessing domestic violence court support programs.
Tip: The NSW Department of Justice has developed an online toolkit for people with disability called So you have to go to Court (external link).
Correctional Facilities
If a person is found guilty of a crime they may be sent to a prison or correctional facility. Depending on the crime, age and location and circumstances of the individual, this may be a juvenile detention centre, prison, correctional centre or rehabilitation facility.
If the person has dependent children or complex health needs, home detention is sometimes an alternative. This means that the prison sentence is served at your address rather than in a prison. If you receive a sentence of home detention you will be strictly supervised and monitored by electronic devices.
Women are usually separated from men and sent to women’s prisons or correctional facilities specifically for women. This is to protect the safety of prisoners. All women sent to prison have a right to go to a women’s prison. However, transgender people are sometimes sent to a prison that does not align with their gender.
Tip: You can visit the ABC website to read about the processes for imprisoning transgender individuals in your state or territory.
Your Rights in Prison
All individuals in correctional facilities have human rights regardless of their race, ethnicity, age, gender, disability, sexuality or class background. While there will always be some limitations to accessing the full range of rights when in a prison environment; basic human rights still apply.
Right to food and shelter
All individuals in correctional facilities have the right to access the food, water, shelter and warmth they need to stay alive and healthy.
Right to healthcare
All individuals in correctional facilities have the right to access the healthcare and medical treatment that they need. This includes access to health professionals and treatments to support their physical and mental health. All prisoners have a right to the same level of healthcare they would be able to get if they were not in prison.
Note: Under Federal Government legislation, prisoners are currently not able to access subsidies for healthcare and supports through Medicare or the NDIS.
Right to assistive aids and technology
All individuals in prison have a right to any aids or assistive technology they need. This could be mobility aids such as a wheelchair, cane or assistance animal, or assistive technology such as a hearing aid, glasses, or a screen reader. There may be some exceptions in cases when accessing aids will endanger the individual or others. However, it is the responsibility of the correctional facility to make other arrangements in these cases.
Right to visitors
As long as all individuals are safe, prisoners have the right to supervised visits from family, friends, lawyers, advocates and religious leaders.
Right to dignity, respect and safety
All individuals in correctional facilities have the right to be treated with dignity and respect. This includes being safe from all forms of discrimination, violence, abuse, humiliation and torture. The safety of all prisoners falls under the responsibility of the facility they are in.
Right to education
All individuals in correctional facilities have the right to take part in educational programs. This includes taking part in school, college, vocational and tertiary education programs through online or remote learning.
Tip: You can learn more about prisoners’ rights on the Prisoner Legal Service website (external link).
References
[1] Human Rights Watch (2018) Australia: Prisoners with Disabilities Neglected, Abused (external link)
[2] Disabled People’s Organisations Australia (2019) CRPD Review Fact Sheet 5: Indefinite Detention (external link)
[3] Australian Federation of Disability Organisations(2020) Poverty and Disability – Fast Facts (external link)
[4] Disabled People’s Organisations Australia (2019) CRPD Review Fact Sheet 9: Violence Against People With Disability (external link).