Police Powers in NSW

13 August 2023 in Criminal Law

The key roles of the NSW Police are to prevent, identify and investigate crimes, maintain social order, ensure road safety and undertake emergency operations. To carry out these duties, police are granted broad powers. These powers must be exercised responsibly, and legal safeguards exist to protect individuals’ rights.

Police powers and responsibilities are governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (henceforth the LEPRA), as well as various other pieces of legislation and the common law.

This article outlines some of the main police powers in NSW.

Disclosure of Identity

At the most basic level, police have the power under the LEPRA to request your name and address if it is unknown to them or if they believe on reasonable grounds that you may be able to assist in the investigation of an alleged offence. It is an offence not to provide this information when requested.

Warnings

If a person refuses to comply with a police officer’s direction, requirement or request, the officer has the power to give the person a warning. It is an offence not to comply with a warning.

Police Questioning

When police are investigating a crime, police may request that suspects participate in an interview. They may do this after a person has been arrested, or without an arrest. Unless you have been arrested, you are not legally required to accompany police to a station for an interview.

The Right To Silence

You have the right to silence and do not have to speak or provide the police with a written statement. Many people have seen movies where the police caution a person by saying ‘you do not have to say anything, but anything you do say may be used against you’. This is indeed the basis of the caution that police in Australia must provide you if you are asked to participate in a police interview.

You are entitled to (and should seek) legal representation or advice before engaging in an interview. You are entitled to reasonable facilities where you can speak to a lawyer. You are also allowed a support person, such as a friend or relative, during an interview. Anyone under the age of 18 must not be interviewed without appropriate adult support.

Section 115 of the LEPRA states that police can hold you for the purposes of investigation for up to six hours from the time of arrest. Police can apply for the period to be extended up to a further six hours through a detention warrant.

Powers of Arrest

Under Section 99 of the LEPRA, officers may arrest an individual without a warrant if they suspect on reasonable grounds that the person has committed or is committing an offence. There must be a factual basis for a police officer’s suspicion, or “less than a reasonable belief but more than a possibility” (R v Rondo [2001] NSWCCA 540).

Police may also make an arrest if there is a court-issued warrant for their arrest, if the person has breached or is reasonably expected to breach a bail undertaking or agreement, or if the person is reasonably suspected to be at large.

Additionally, police have the power to make an arrest if they consider it reasonably necessary to:

• Prevent a further offence
• Stop a person fleeing a crime scene
• Ensure a person’s appearance in court
• Preserve evidence
• Acquire property connected to an offence
• Protect a person from danger
• Prevent harassment of or interference with a victim or witness

The NSW Supreme Court has held that arrest should only occur when a summons or court attendance notice is impractical, in other words, as a last resort.

Officers must comply with basic safeguards when exercising the powers of arrest, including telling the person that they are under arrest and the reason why.

Young Offenders

Under the Young Offenders Act 1997 (NSW), any person under the age of 18 who has committed an offence should be dealt with by way of a warning or caution rather than arrest.

Some reasons why arrest may be authorised include where the matter is a serious indictable offence, the police believe the child needs to be restrained due to violent behaviour, the child is reasonably suspected to be unlikely to comply with a summons or the child will commit further offences.

Stop, Search, Seize and Detain

There are four key types of searches: regular person searches, strip searches, searches of vehicles and searches of private premises.

Regular person searches

Under Section 21 of the LEPRA, police have the power to stop, search and detain a person on the street and seize their property without a warrant if it is suspected on reasonable grounds that they are in possession of stolen goods, an object that has been or will be used in an offence, a weapon or illicit substances. These items can be seized and detained if found.

Auxiliary police powers allow the person to be frisked or asked to open their mouth or shake out their hair. A penalty of $550 applies for failure to comply.

Strip searches

Police may strip search an individual at a police station, a place of detention or elsewhere if it is suspected to be “necessary for the purposes of the search and that the seriousness and urgency of the circumstances” (s33, LEPRA) warrants it.

Section 32 to 34A of the LEPRA outline further protocols, such as searches being conducted in private by officers of the same sex and exclusion of searching body cavities. No one under the age of 10 can be strip searched.

Searches of vehicles

Section 36 of the LEPRA provides that a vehicle may be searched if it is suspected on reasonable grounds, to contain stolen goods or items related to a crime. It can also be stopped if it has been or is being used in a crime. Officers can seize and detain any illegal items found in a vehicle search.

Searches of private premises

Police may obtain a warrant to enter and search private premises, as well as people within those premises. A warrant outlines the extent of their powers to search and seize. They can use reasonable force to enter the premises, including breaking down the door if it is not answered in a reasonable timeframe.

In May 2022, NSW Police were granted new powers under the Drug Supply Prohibition Order Pilot Scheme Act to search the homes and vehicles of anyone convicted of drug supply in the past 10 years without a search warrant. This two-year pilot program applies to the Bankstown Police Area Command, Coffs-Clarence Police District, Hunter Valley Police District and Orana Mid-Western Police District.

Move On Directions

In general, the police have the power to give directions to individuals and the public.

Under the LEPRA, a police officer has the authority to order a person to leave a public place (‘move on’) if the officer believes on reasonable grounds that the person’s behaviour is disorderly or is likely to cause injury to another person, damage property or risk public safety.

While under a move on direction, you can be ordered to stay away from an area for up to six hours. Failure to follow a move on direction is an offence, punishable by a $220 fine.

Police Misconduct

If a police officer breaches their powers, you have the option of filing a civil suit against the police for compensation. Misconduct can include things such as assault, false arrest and malicious prosecution.