NSW Police Powers – What Are My Rights?
Dealing with Police can be an extremely intimidating experience. While the Police have a lot of powers set out under legislation to help them carry out their work you also have rights that are designed to protect you.
If the Police contact me, what should I do?
Police can ask you to attend a Police Station for questioning, but you do not have to go unless you have been arrested for an offence.
If you have been contacted by the Police to come into a Police Station or to participate in a record of interview, you should seek legal advice immediately.
What are my rights when dealing with Police?
Some of the rights you have when dealing with Police include:
- To be informed of your rights by the Police
- To be informed of your right to silence
- To be informed of any charges and whether you are under arrest
- To refuse to accompany a police officer to the police station unless you are under arrest
- To refuse to participate in an identification parade
- To refuse to participate in the reconstruction of a crime
- To refuse to have blood samples, DNA samples, photographs or other samples taken
- To refuse to allow Police to search your property unless they have a warrant
- To refuse to supply voiceprints
What if I am approached by the Police?
If you are approached by the Police you should remain calm and respectful. If you are aggressive, verbally abusive or try to resist arrest you may be charged with an offence.
By law, you do not have to answer questions asked by a Police Officer and the Police do not have a general power to arrest you purely for questioning.
Do I have to give the Police my name & address?
You are required to give the Police your name and address if:
- The Police suspect you are under 18 and have alcohol in public place
- The Police suspect you are involved in terrorism
- You were near where a serious crime happened
- You are driving a car or riding a motorbike
- You are involved in a car accident
If you are the owner or driver of a motor vehicle involved in an accident you are required to provide the Police with the names and addresses of the person who was driving the vehicle and any passengers.
It is against the law to provide a false name and address.
Who has the right to arrest me and why?
A Police officer can arrest you for the following:
- You are committing an offence
- You have committed an offence
- They have reasonable grounds to suspect you have committed an offence
- You are breaching the peace
- You have breached your bail conditions
- A warrant has been issued for your arrest
- To serve you with an Apprehended Violence Order (AVO)
- To apply for a provisional AVO against you
A private citizen can arrest you if:
- You are committing an offence
- You have committed an offence
What happens when you get arrested?
The person arresting you should provide the following information:
- Tell you that you are under arrest
- Tell you why you are being arrested
- Tell you their name, rank and place of duty
- Tell you your rights including your right to silence
- Ask you if you wish to contact a lawyer or other person
If you have been placed under arrest, the Police can only detain you for a maximum of 4 hours unless they are granted an extension by the Court or you are refused bail. If the Police decide not to charge you within this 4-hour period, they must release you as soon as possible.
Can the Police use force to arrest me?
A police officer can use as much force as is necessary to arrest you. This means that if you co-operate, the police can’t use force, but the more you resist arrest the more force police can use.
Unreasonable force is an assault. If you think the police are using unreasonable force, it is best to be co-operative at the time and make a complaint later.
Do I have the right to resist arrest?
You should never resist arrest, even if you don’t think that you are guilty of an offence. Even if you are innocent, the police may arrest you if they have reasonable grounds to suspect you have committed an offence.
It is an offence to resist arrest. If you try to avoid being arrested or use violence you may be charged with resisting arrest or assaulting police.
Do I have to answer questions if I am under arrest?
If you have been placed under arrest, you have the right to silence. You should not participate in a record of interview or answer any questions before consulting a legal representative.
Most Police are experienced and will advise you of, and work within, the rights of the law, however, they will probably not warn you if you inadvertently waive your right to silence.
There is no such thing as an interview that is ‘off the record’. Anything you say to the police whilst under arrest will be recorded. No matter how much you feel pressured to do so, do not say or do anything that may incriminate you until you have spoken to your legal representative.
What is a “special caution”?
In some circumstances exercising your right to silence may be used against you. For most offences, police can administer a ‘special caution’ but only if:
- You have had an opportunity to obtain legal advice from a lawyer and
- You are given the ‘special caution’ in the presence of your lawyer
The effect of the ‘special caution’ is that if you then fail or refuse to tell police a fact that is later relied on in your defence in court, it may permit the court to use your silence against you.
If you are not represented by a lawyer or if your lawyer is not present when police speak to you, this provision does not apply. For this reason, your lawyer may suggest that it is in your best interests they do not attend the police station while you are detained there.
Do I have to submit to being photographed or fingerprinted?
The police generally have the right to take photographs of you and obtain your fingerprints upon you being charged. Your consent is usually required to obtain a DNA sample, and you should probably refuse consent until you have first spoken to a legal representative.
Do I have to take part in a Police line-up?
You do not have to participate in an identification parade or police line-up; however, they are obliged to offer it to you, and it is your choice as to whether you want to participate. Once again, you should seek legal advice before participating in an identification parade.
Do the Police have the right to search me?
The Police can search you without a warrant if they have reasonable grounds to think you have:
- Prohibited drugs
- Stolen or unlawfully obtained goods
- Knives, weapons or dangerous implements
- Items that have been or may be used to commit a crime
- Items that have been or may be used in connection with a crime
If the Police have a warrant, they can stop and search you, your car or your house.
What happens during a Police search?
There are two main types of searches – frisk and strip searches.
Police can pat you down, ask you to remove your outer clothing and shoes, look into your clothing and belongings and use an electronic metal detection device. They can also ask you to shake your hair and open your mouth if the Police officer thinks you are hiding something.
Strip search can only be done if the Police think it is necessary and the circumstances are serious and urgent. As far as is practicable, the search must be carried out by a police officer of the same gender as the person being searched.
In the case of a strip search, it should be carried out in a private area, out of sight of people of the opposite gender to you and out of sight of other people not involved in the search. A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.
Special provisions apply if the person being searched is aged between 10 and 17 years or intellectually impaired.
If you are at school, the Police can search your bag and locker for knives or other dangerous things.
The Police can also use sniffer dogs to search you for illegal drugs at sporting events, concerts and at other public places or events.
The Police must provide the name, rank and place of duty of the officer performing the search. They must also tell you the reason for the search. If you do not comply with the search you may be committing an offence.
What is a search warrant?
A search warrant may be obtained by the Police to allow them to search your home or other premises. They may also search any person at those premises. Police may use reasonable force to gain entry to the premises if they have a search warrant. It is an offence to obstruct or hinder a person carrying out a search under a warrant.
Why do Police use sniffer dogs?
Police dogs have been trained to detect prohibited drugs. They often use these dogs in public areas, music festivals, gaols and railway stations.
If a dog indicates that they have detected drugs then the Police may have a ”reasonable suspicion” which allows them to search you.
Can the Police ask me to “move along”?
Police can give you directions to “move along” if you are in a public place and they believe on reasonable grounds that you are:
- Obstructing another person
- Obstruction traffic
- Harassing or intimidating another person
- Causing, or likely to cause fear to another person
- Unlawfully supplying prohibited drugs
- Attempting to obtain prohibited drugs
If you are intoxicated or affected by drugs or alcohol in a public place the Police may give you directions to leave the area for up to six hours if they believe on reasonable grounds that you are:
- Likely to cause injury to another person
- Likely to cause damage to property
- A risk to public safety
It is an offence not to comply with a “move on” direction.
Can Police detain you if you are intoxicated?
A Police officer may detain you if you are intoxicated or seriously affected by alcohol or drugs in a public place and found to be:
- Behaving in a disorderly manner
- Behaving in a manner likely to cause injury to yourself or others
- Behaving in a manner likely to cause damage to property
- In need of physical protection because you are intoxicated
If you are detained as an intoxicated person Police may release you into the immediate care of a responsible person who is willing to take care of you.
If the Police cannot find a responsible person or your behaviour is out of control, the Police may take you to an authorised place of detention such as a Police Station. When you are detained as an intoxicated person you must be allowed to contact a responsible person, be kept separately to people charged with offences and be provided with food, drink, bedding and blankets.
Police have the right to search you and take any belongings found in your possession if you are detained as an intoxicated person.
You must be released, and your personal belongings returned to you as soon as you are no longer intoxicated.
Can the Police take my things?
If the Police execute a search warrant, they can take things they find during the search. This includes taking things not mentioned in the warrant if they reasonably suspect they are connected with an offence.
If you are in a public place the Police can take:
- Knives or blades
- Firearms or weapons
- Prohibited drugs
- Anything they suspect is stolen or unlawfully obtained
- Anything they suspect may be evidence of the commission of an offence
If you are under 18 the Police can take:
- Spray paint
If any of these things are taken from you it is likely that you will be charged with a criminal offence. If you can show that you have a lawful reason for having these things you can apply to get them back.
How do I complain if Police misuse their powers?
If you think that the Police have misused their powers, you can make a complaint.
You can complain by:
- Going to the local Police Station and asking to see the duty officer or Local Area Commander
- Contacting the Commissioner of Police
- Contacting the Ombudsman’s office on 1800 451 524