In pre-federation Australia each of the colonies established their own police forces. When these colonies merged to create the Commonwealth of Australia in 1901, the states retained the rights and responsibilities for their internal law enforcement.
Each state police force operates under a different State Constitution, as well as States Law. This means we need to know what laws the police are bound to operate under. You can Google the Police Powers Act in each state. We recommend everyone read this act, as it lays out what duties police must carry out, but more importantly, the law lays out how they must deal with the public.
Police are also bound by Federal Law, and laws created by High Court decisions. We all need to ensure that the police are obeying the law, as well as enforcing it. This is especially important during a traffic stop.
Whenever you are stopped by the police, ask them two questions:
- Are you employed to uphold the law? Of course, they will answer that they are. That is when you show them the document below and explain that they are breaking a law passed by the High Court, and then ask if you are free to go, as they do not suspect you of committing a crime.
- Please show me your bond and insurance – If they continue to harass you, ask them to show their bond and insurance. As they are corporate employees they must have a bond and insurance to protect them from litigation for any harm they do. They are always personally liable for their actions. Explain to them that if they continue to break the law you can arrest them and summon them to a Common Law Court to hold them accountable.
Print out and keep the advice below in your car at all times…
The following explains Police Powers and You:
The Commonwealth of Australia Constitution Act 1901, Section 109 states… When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Common Law as embodied in the Magna Carta 1215, the English Bill of Rights 1688, and the Commonwealth of Australia Constitution Act 1901 guarantee the right of people to go about their lawful business unhindered by the police or anyone else as long as you are not suspected of committing a crime. Common Law is the highest law in the land and therefore all State laws must be consistent with Common Law.
The State Acts that the police rely on to justify stopping drivers for a Random Breath Test (RBT) are inconsistent with the law of the Commonwealth and Common law, and that makes them invalid.
Being pulled over for a Random Breath Test does not constitute a crime. Therefore, the police have no right to pull you over without due cause, or to make any other demands on anyone, as confirmed in these court decisions.
However, we do not condone anyone drink driving. It is dangerous and stupid.
We repeat: Never say anything to the police. Your silence protects your rights. Anything you say can and will be used by them against you. Even the most innocent statement can be twisted to make you look guilty. So, when stopped by the police SHUT UP!
If they police admit that have no reasonable grounds to suspect you have committed a crime, ask if you have committed a crime. When they say no, as they must, tell them that means you are free to go. Keep saying this until they realize you know the law. Never say anything else.
The following judgments make it very clear that the police do not have the power or authority to stop you for any reason unless they suspect you have committed a crime.
1. Regina v Banner (1970) VR 240 at p 249 – the Full Bench of the Northern Territory Supreme Court
In this judgement, the NT Supreme Court handed down a ruling that, “(Police officers) have no power whatever to arrest or detain a citizen for the purpose of questioning him or of facilitating their investigations. It matters not at all whether the questioning or the investigation is for the purpose of enabling them to ascertain whether he is the person guilty of a crime known to have been committed or is for the purpose of enabling them to discover whether a crime has or has not been committed. If the police do so act in purported exercise of such a power, their conduct is not only destructive of civil liberties, but it is unlawful.”
2. Andrew Hamilton Vs Director of Public Prosecutions – Justice Stephen Kaye – Melbourne Supreme Court ruling – 25 November 2011
“It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”
3. Magistrate Duncan Reynolds – Melbourne – July 2013
“There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details. Nor is s.59 of the (Road Safety) Act a statutory source of such power.”
