In this series we take one legal idea at a time and set it out in language you can use. This time it is arrest — the moment at which the State takes away a person’s liberty, and the point at which most people first meet the law.
What is an arrest?
An arrest is the act of depriving a person of their liberty and taking them into custody so that they can be dealt with according to law. It is not a finding of guilt, and it is not a punishment. Section 37(4)(a) of the Constitution presumes a person charged with an offence innocent until proved guilty according to law, and that presumption survives the arrest untouched.
The rules are set out in the Arrest Act (Chapter 339), consolidated to No 17 of 2015. Its own opening words describe an Act:
- to specify the circumstances in which persons may be arrested; and
- to confer certain powers and duties on persons making arrests; and
- to abolish certain rules of common law.
The rule that surprises people: there is no common law arrest
That third purpose is the most important sentence in the Act, and it sits in section 30. Subject only to the position of Parliament and courts of record dealing with contempt, section 30 abolishes all common law powers to arrest and all duties and responsibilities imposed by the common law in relation to an arrest.
The consequence is simple and powerful. In Papua New Guinea, a power to arrest must be found in a written law. Nobody — policeman, security guard, employer, landowner or councillor — can point to tradition, to practice, or to what the law used to allow in another country. If no statute gives the power, the power does not exist.
Section 23 makes the other half of the point: the circumstances set out in the Arrest Act are in addition to, not in place of, powers of arrest conferred by other Acts. So other legislation can and does create further powers — but it must be legislation.
Who is an “authorized person”?
The Act uses one term for anyone entitled to make an arrest. Under section 1, an “authorized person” is a person empowered to make an arrest under the Arrest Act, under any other law, or by a warrant.
Two further definitions matter. A “policeman” is a member of the Police Force. And “court” means any court other than a Village Court — so a Village Court does not issue arrest warrants under this Act.
“Reasonable grounds” has a legal meaning
Almost every power in the Act turns on the arresting person believing something on reasonable grounds. Section 1(3) defines that phrase, and it has two limbs. A person believes something on reasonable grounds if:
- he personally has that belief; and
- there are reasonable grounds for that belief.
Both limbs must be satisfied. A genuine hunch with nothing behind it fails the second. A set of facts that would justify suspicion, held by an officer who did not actually turn their mind to it, fails the first. This two-part test is the hinge on which most arguments about an unlawful arrest turn.
Where the Act applies
Section 2 gives the Act a wide reach: notwithstanding any other law, it applies to an arrest for any offence under this Act or any other law. There are two express carve-outs — arrests under the Civil Aviation Act 2000, and immigration detention under the Migration Act (Chapter 16).
How the Act is organised
Reading the Act is far easier once you see its shape:
- Part I — definitions and application.
- Part II — when an arrest may be made without a warrant (sections 3 to 7).
- Part III — arrest warrants: who issues them, how they are directed, what they must say (sections 8 to 13).
- Part IV — the manner of arrest, including what must be said and how much force is allowed (sections 14 and 15).
- Part V — duties after the arrest, including the duties of the officer-in-charge of a police station (sections 16 to 20).
- Part VI — police powers after arrest: finger-prints, photographs and medical examinations (sections 21 and 22).
- Part VII — civil remedies, onus of proof, indemnity, and the abolition of common law powers.
The constitutional backdrop
The Arrest Act does not stand alone. Section 42 of the Constitution protects liberty of the person and requires that a person who is arrested be told promptly, in a language they understand, of the reasons and any charge, be permitted to communicate without delay with a lawyer and a relative or friend, and be brought before a court without delay. The Arrest Act puts machinery around those guarantees; the Constitution is what they rest on.
An arrest is lawful only if a written law authorises it, the arresting person genuinely and reasonably believes the facts that trigger that power, and the arrest is carried out in the manner the Act requires.
Every case turns on its own facts. Speak to a lawyer or contact the Office of the Public Solicitor as soon as possible.