Your Rights

The following is a basic guide to your rights when approached by police officers.

Do I have to give police my name and address?

Not normally. Although police have a right to ask for your identity, in most situations you do not have to give it.

However, there are some situations where you must provide your identity, being your name and address.

These include:

• when police hold a reasonable suspicion that you can assist in the investigation of an ‘indictable offence’ (which is one that may be decided in a higher court) because you are in the vicinity of the incident,
• when you are driving or riding a motor vehicle, and you:
  • are subjected to a routine traffic stop, such as a random breath test or drug test,
  • are suspected of a traffic offence (eg speeding); or
  • refuse a breath test;
• when you are a driver or passenger in a motor vehicle that police reasonably suspect was used in a serious offence;
• when you own, were responsible for or had custody of a motor vehicle suspected of having been used in a traffic offence;
• when you are under 18 and police ‘reasonably suspect’ you of carrying or consuming alcohol in a public place;
• when you have unpaid fines and police are trying to serve a ‘fine default warrant’;
• when a specific order such as a Public Health Order (NSW) or Biosecurity Emergency Direction (Commonwealth) requires you to do so; and
• after you are arrested.

Do I have to answer questions when approached by police?

Not normally. In most situations, you do not have to answer questions by police.

However, there are some laws that require you to answer certain questions and/or do certain things in specific situations. For example, under traffic laws you must give your name and address to police in some situations when driving a car (see above).

If requested, you must also provide your drivers licence and give the names and addresses of any other people suspected of committing an offence under the Road Transport Act.

If required, you must also give information about any other motor vehicles suspected of being involved in such an offence.

There are similar rules in many other Acts, including the National Parks and Wildlife Act (you must answer certain questions by park officers/rangers), the Local Government Act (you must answer questions by Council officers or police if you are suspected of breaching Council by-laws and regulations), the Meat Industry Act (you must answer questions by meat inspectors), and for certain ‘terrorism related’ offences (you must cooperate fully with police in their investigations).

When can Police tell me to stop doing something or ‘move’ on?

You have the right to hang out anywhere you like, with whoever you like, as long as you’re not doing certain unlawful things. Those things are:

• obstructing people or traffic;
• harassing or intimidating people;
• acting in a way that could cause fear to other people (whether or not there are actually other people there); or
• possessing, receiving or supplying drugs, or intending to do so.

In ‘public places’ and in schools, police can give you a ‘reasonable direction’ (ie a fair order) to stop doing something or to ‘move on’ but only if they ‘reasonably believe’ that you are doing one or more of the above things. The ‘direction’ (ie the order) will only be ‘reasonable’ if it is aimed at stopping the behaviour. So police can’t just order you around for no reason.

Before giving the ‘reasonable direction’, police must do four things:

• show evidence that they are police (unless they are in uniform);
• tell you their name and police station;
• tell you why they are giving the direction; and
• warn you that it may be an offence to disobey.

If you don’t obey the direction straight away, police must repeat the direction before they can give you an on-the-spot fine or charge you.

If you are charged or refuse to pay the fine, the Magistrate in Court will decide whether or not you are guilty.

In reaching a decision, the Magistrate will consider whether the direction was reasonable and also whether police did the four things listed above.

Finally, the meaning of ‘public place’ is quite broad; including roads, footpaths, car parks, trains, train stations, parks, reserves, beaches, pools, youth centres, some shops and their surroundings, shopping centres, cinemas and entertainment complexes. ‘

Public place’ does not include people’s own homes or yards.

It should be noted there are also specific orders such as Public Health Orders and Biosecurity Emergency Direction under which police may have to power to prevent people from entering certain places, or require them to leave those places.

These orders are being used during the COVID-19 pandemic.

What if the direction is unfair or unreasonable?

If you believe that the police direction is unfair or that police haven’t followed the rules, you have two options:

• you can obey the direction and complain later
• LODGE A FORMAL COMPLAINT WITH THE NSW LAW ENFORCEMENT CONDUCT COMMISSION NOW; or
• you can refuse to obey. If you refuse and police fine you, you can elect not to pay the fine and instead defend the matter in Court. The Magistrate will then decide whether you were right or wrong to disobey the direction. In doing so, he or she will consider whether the direction was reasonable and also whether police did the four things previously listed.

What if I’m not in a public place?

Where you are on ‘private property’, the owner or occupier (an ‘occupier’ is someone who rents a place, such as a tenant) can tell you to leave. If you don’t leave, police can charge you with remaining on inclosed lands (also called ‘trespassing’).

‘Inclosed lands’ are:

• the inside of buildings;
• any other parts of buildings (eg steps, wall, fence or pathway); and
• any other place inside the boundaries of land or property.

‘Private property’ is property owned or occupied by a person or a company (rather than by a council or government). It includes people’s homes and yards, most shops and businesses, shopping centres, cinemas and entertainment complexes.

To complicate things, certain places are both ‘private property’ (ie are owned by a person or company) and public places; for example, shopping centres and entertainment complexes. In such places, police can use their ‘move on’ powers as well as charge you with remaining on inclosed lands.

Can I have someone with me when questioned by police on the street?

Yes. Police will often tell your family and friends to move away while they question you. However, if your family/friends are not interfering with police and you have not yet been arrested, police can’t make them leave.

Do I have to go with police if I haven’t been arrested?

No. You don’t have to go anywhere with police (not even to the police station) unless you have been arrested.

If you are unsure whether you’ve been arrested, just ask.

If you haven’t been arrested, it is entirely up to you whether you go.

Despite what police say, you can’t be forced to go and are not committing an offence by refusing to going.

Can I be arrested if I’m not suspected of committing an offence?

No. You cannot be arrested without a warrant if you are not suspected of committing an offence.

However, if someone else is (or has been) charged, a Court document (called a ‘subpoena’) may be issued requiring you to:

(a) attend Court to give evidence as a witness, or

(b) produce requested documents if they are in your possession, custody or control.

Do I have to answer questions after arrest?

Not normally. After arrest, you have a ‘right to silence’ ie a right not to answer police questions about the alleged offence.

You should use that right (ie you should not answer questions) in order to give yourself time to calm down and think clearly.

You can always attend a police interview on a later date, even if you are held in custody.

Police sometimes take advantage of the trauma of arrest by pressuring or confusing people into giving ‘false’ confessions or providing answers that are not quite right.

Such answers can later be used in Court against you, and can make it much harder to defend your case.

So give your name, address and date of birth and do not answer any other questions until you have spoken with a criminal lawyer.

As stated before, there are some offences where the ‘right to silence’ has been reduced. The most notable is where you are arrested for a ‘terrorist-related’ offence.

In such cases, you must cooperate fully with police and answer their questions, or else you are guilty of a serious offence.

What is an ERISP?

‘ERISP’ stands for Electronically Recorded Interview of a Suspected Person.

It is a record of your interview by police at the police station, and may be recorded on audiotape, videotape or both.

If you are required to sit for an ERISP, you should give your name, address and date of birth, but should not answer any other questions until you have contacted a criminal lawyer.

You should not give any written statements or sign any documents, other than your bail form.

Do I have to let police take my photo, fingerprints or DNA after arrest?

If you are over 14 and are charged with a criminal offence, police can take your fingerprints and a photograph of your face but only if those things (ie the fingerprints and/or photo) are necessary to work out your identity.

If you are under 14, police must apply for a Court order to do this. If you are not arrested, they cannot do those things without your permission.

Police must obtain a Court order to take your DNA.

The DNA is usually taken from a sample of your saliva or hair. Police can only apply for a Court order (to take DNA, fingerprints or photo) if they suspect you of committing a crime or you have already been charged.

If they get that order, they can use ‘reasonable force’ to make you comply, which may involve holding you down and getting a doctor to extract a sample of blood.

Do I have to participate in a police line up?

No. A police ‘line-up’ (also called an ‘identification parade’) is where several people stand in a line and a witness is asked to point out the suspect/s.

You should always obtain legal advice before agreeing to a ‘line-up’.

Where you do not agree, police may ask the witness to identify suspects from several photos, including a photo of you.

When can police search my car, body or bag?

Police can search you, your car, bag or belongings if:

• you consent (agree);
• you have been arrested;
• police ‘reasonably suspect’ that you have something stolen or unlawfully obtained, or something used or about to be used in a crime;
• police ‘reasonably suspect’ that there are illegal drugs on you or in your car;
• police ‘reasonably suspect’ that you, your bag or school locker have a knife or other weapon;
• police suspect that you are involved in ‘terrorist-related’ activities;
• police have a search warrant for the building you are in, and they ‘reasonably suspect’ that you have something named in the warrant on you;
• you are detained because you are drunk in public.

Police must tell you why they intend to search you. If they don’t, you should ask.

Also ask for their name, badge number and police station.

If police give you that information and you still refuse to be searched, they may arrest you and use force to search you.

You may also be fined or charged with refusing a search and ordered to appear in Court.

During a search, police can take anything they believe is evidence of a crime.

If you feel that the search was ‘unreasonable’, you should lodge a formal complaint. A search may be ‘unreasonable’ if police did not have reasonable grounds to search you or they refused to give their details when asked or they didn’t follow the rules for the particular type of search (see below).

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What type of searches can police undertake?

There are three main types of body searches; normal search, strip search and internal body cavity search. Different rules apply to each type.

Normal search

The most common type of search is where police:

• get you to empty out your pockets and bag; and
• search your bags and possessions; and
• do a frisk or a pat-down search; where police quickly run their hands over all parts of your body and ask you to run your hands through your hair; and/or
• use a metal detector to search you and your possessions.

If you are under 18, it is your right to have a friend or family member nearby while you are being searched.

Even if you are over 18, you should ask to have someone present.

This will reduce the chance of improper conduct by police (eg excessive force) and give you a witness to back-up any later complaint by you.

Strip search

Strip searches are a serious invasion of your privacy.

However, the law allows police to strip search you (ie to make you remove most or all of your clothes) if:

• you have been arrested; and
• police ‘reasonably suspect’ that you possess dangerous or prohibited items, such as weapons or drugs.

Police must not strip search you where there is no real reason to suspect you of hiding such things, or where they just want to humiliate or degrade you. S

trip searches must not be conducted in public, and females can only be strip searched by other females. Police must not touch your body during a strip search.

Internal body cavity search

This is the most intrusive type of search, involving a search of your rectum and/or vagina.

It can only be done where there is reason to believe that you have hidden prohibited items (usually drugs) inside a body cavity.

Such searches must be approved by a police sergeant or a more senior officer, and can only be performed by a doctor.

When can police enter and search my premises?

Police can only enter your home or shop:

• if the occupier (the person who lives or works there) consents (agrees);
• to prevent domestic violence, a ‘breach of the peace’ (eg fighting or violence) or some other offence;
• to arrest someone; or
• to conduct a lawful search.

However, police can only search your premises if:

• the occupier consents;
• they enter to arrest someone. In such a case, they can only search the arrested person and their belongings, not the whole premises;
• they suspect ‘terrorist-related’ activities;
• they have power under a specific order such as a Public Health Order or Biosecurity Emergency Direction to do so; or
• they have a ‘search warrant’.

To obtain a search warrant, police must persuade a Magistrate or justice of the peace that they reasonably suspect that there is evidence of a crime (eg stolen goods, weapons, drugs etc) at the premises.

The warrant can be used only once, during the daytime (unless the warrant says otherwise) and before the expiry date (which is stated on the ‘occupier’s notice’; see below).

Police must give you a receipt for anything they take.

What is an ‘occupier’s notice?

Before carrying out a search, police must hand the occupier a written notice, called an ‘occupier’s notice’, which states:

• the address of the premises;
• what the police are looking for;
• what the warrant allows police to do (eg the parts of the premises they can search, whether they can search at night etc); and
• the warrant’s expiry date.

How can Sydney Criminal Lawyers® help me?

If you are arrested or called for a police interview, you should contact Accredited Criminal Lawyers to assist you.

Sydney Criminal Lawyers® can:

• advise you of your rights;
• explain any charges against you;
• explain your alternatives;
• make a bail application for you in Court (if you are refused bail by police); and
• represent you at your Court hearing.

When can a police officer arrest me?

Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) makes clear that a police officer can arrest you:

1. If they have an arrest warrant, or
2. Without a warrant if:

a) They suspect on reasonable grounds that your are committing or have committed an offence, and

b) they are satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

(i) to stop you committing or repeating the offence or committing another offence,

(ii) to stop you fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish your identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information you provided is false,

(iv) to ensure you appear before a court in relation to the offence,

(v) to obtain property connected with an offence that is in your possession,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person, or

(ix) because of the nature and seriousness of the offence.

Anyone else (security guards, store detectives, ‘bouncers’, and all other members of the community) can perform a ‘citizen’s arrest’ upon you if:

• they catch you committing a crime;
• they see you committing a ‘breach of the peace’; such as obstructing a police officer in his or her duties, ‘creating public alarm or excitement’, or committing an assault. Minor offences such as offensive language, disturbance and annoyance are not sufficient for a citizen’s arrest.

How much force can be used to arrest me?

No more than ‘reasonable’ force can be used to arrest you. The type and degree of force that is ‘reasonable’ will depend on the circumstances.

For example, if you are suspected of a minor, non-violent offence (such as shoplifting) and are not resisting arrest, only minimal force can be used eg holding your arm or placing a hand on your shoulder. Any greater force could be considered an assault, and you can lodge a formal complaint (against the police) or press for charges to be laid.

On the other hand, if you are committing a serious and/or violent offence (such as a serious assault) and/or are violently resisting arrest, a substantial amount of force might be considered ‘reasonable’; possibly including throwing you to the ground, or causing pain by twisting your arm and/or striking.

However, the force must not go beyond that required to subdue you. The police cannot, for example, punch or kick you after you stop resisting them.

Can I be arrested for questioning if I am not a suspect?

No. You can only be arrested if you are suspected of an offence.

If the police believe that you might have information relating to a crime, they may ask you to attend a police interview; but you do not have to attend.

However, if someone else is (or has been) charged, a Court document (called a ‘subpoena’) may be issued requiring you to:

(a) attend Court to give evidence as a witness, or

(b) produce requested documents if they are in your possession, custody or control.

What are my legal rights when arrested?

Being arrested can be a traumatic experience for anyone. However, arrested persons have certain rights which are designed to ensure fairness; including the right to:

• be told that you are under arrest, what you have been arrested for, and to be cautioned (ie ‘you do not have to say anything, but anything you do say may be used in evidence…’);
• be told your rights and formally cautioned by the Police Custody Manager upon arrival at the police station;
• contact a friend, relative or guardian;
• contact an embassy or consulate (if you are a foreign national);
• contact a lawyer;
• have a lawyer present during your investigation/questioning;
• have an interpreter present during your investigation/questioning (if necessary);
• receive medical assistance (if necessary);
• receive food and water;
• have access to bathroom facilities.

Vulnerable People

Persons under 18 years old (minors), indigenous persons, intellectually or physically disabled persons, and persons from non-English speaking backgrounds have the additional right to:

• have a support person with them during police investigations/questioning; and
• have their specific vulnerabilities (eg their inability to speak English) taken into account by police.

Persons under 18 must not be placed in police cells unless:

• no other accommodation is available; and
• it is impractical to supervise the person outside a cell; or
• the custody manager believes that the cell is more comfortable than any other part of the police station.

Do I have to answer questions after an arrest?

Not normally.

After arrest, you have a ‘right to silence’ ie a right not to answer police questions about the alleged offence.

You should use that right (ie you should not answer questions) in order to give yourself time to calm down and think clearly. You can always attend a police interview on a later date, even if you are held in custody.

Police sometimes take advantage of the trauma of arrest by pressuring or confusing people into giving ‘false’ confessions or providing answers that are not quite right.

Such answers can later be used in Court against you, and can make it much harder to defend your case. So give your name, address and date of birth and do not answer any other questions until you have spoken with a criminal defence lawyer.

There are, however, some offences where the ‘right to silence’ has been reduced.

The most notable is where you are arrested for a ‘terrorist-related’ offence. In such cases, you must cooperate fully with police and answer their questions, or else you are guilty of a serious offence. There are also disclosure requirements under the Traffic Act, the National Parks and Wildlife Act, the Local Government Act, and the Meat Industry Act (see Do I have to answer questions when approached by police?).

What is an ERISP?

‘ERISP’ stands for Electronically Recorded Interview of a Suspected Person.

It is a record of your interview by police at the police station, and may be recorded on audiotape, videotape or both.

If you are required to sit for an ERISP, you should give your name, address and date of birth, but should not answer any other questions until you have contacted a criminal lawyer.

You should not give any written statements or sign any documents, other than your bail form.

How long can I be held in custody?

The police can hold you in custody for a ‘reasonable period’ after which they must either:

(a) charge you with an offence, or

(b) release you (unconditionally or on bail).

That ‘reasonable period’ cannot exceed 6 hours unless a warrant is obtained from an ‘authorised justice’. In that case, the period can be extended for up to an additional 6 hours.

It is important to note that the ‘reasonable period’ does not include ‘time outs’; which are times taken to:

• take you to the police station;
• arrange, wait for and/or communicate with a support person (for ‘vulnerable’ persons), criminal lawyer, embassy official, interpreter or doctor;
• be treated by a doctor;
• organise and undertake a police ‘line-up’ (called an ‘identification parade’);
• rest, have refreshments or go to the toilet;
• recover from the effects of drugs or alcohol.

The total period of ‘time outs’ cannot exceed 2 hours. If it does (eg if there are 3 hours of ‘time-outs’), the additional period (ie the 1 extra hour) will be counted towards the ‘reasonable period’ (ie it will become part of the 6 hour period of investigation).

If you are ultimately charged, your matter must be listed before a ‘magistrate’, ‘justice’ or ‘Court’ as soon as practicable; which is usually the next day if you are denied bail.

If you believe that police have acted improperly towards you or someone you know, you should:

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How can Sydney Criminal Lawyers® help me?

If you are arrested or called for a police interview, you should contact Accredited Criminal Lawyers to assist you.

Sydney Criminal Lawyers® can:

• advise you of your rights;
• explain any charges against you;
• explain your alternatives;
• make a bail application for you in Court (if you are refused bail by police); and
• represent you at your Court hearing.

Do I have to attend a police interview if requested to do so?

Not normally. You are not required to attend a police station if you have not been arrested and there is no warrant for your arrest.

If the police believe you have information about a crime, they may ask you to attend a police interview; but you do not have to attend unless you have been formally arrested.

You can only be forced to attend a police station if you have been arrested.

In any case, you should always contact a criminal defence lawyer before participating in a police interview.

He or she can advise you about your interview rights and/or sit with you during the interview.

Can I be arrested for questioning if I am not a suspect?

No. You can only be arrested if you are suspected of an offence.

Police can’t arrest you just because you might know something about an offence. However, if someone else is charged, the Court may send a document (called a ‘subpoena’) requiring you to:

(a) attend that person’s hearing to give evidence as a witness, or

(b) produce requested documents if they are in your possession, custody or control.

You can be arrested if you are reasonably suspected of committing an offence.

The police will then take you to the police station for questioning, after which they will decide whether or not to charge you with an offence.

If they decide to charge you, police will then determine whether or not you should be released on bail. If you are not released on bail, you or a criminal defence lawyer on your behalf will need to make a bail application before the Court, which usually occurs the next morning.

Do I have to answer police questions?

Whether you attend voluntarily or after being arrested, you will have a ‘right to remain silent’ at the police station.

This means that you do not have to answer questions about the alleged offence, except in certain limited cases (see Do I have to answer questions when approached by police?).

In fact, you should not answer police questions until you have contacted a criminal lawyer for advice.

This is because the answers you give police can later be used in Court against you, possibly making it harder to defend your case.

So give your name, address and date of birth and do not answer any other questions until you have obtained legal advice.

What is an ERISP?

‘ERISP’ stands for Electronically Recorded Interview of a Suspected Person.

It is a record of a suspect’s interview by police at the police station, and may be recorded on audiotape, videotape or both.

If you are required to sit for an ERISP, you should give your name, address and date of birth, but should not answer any other questions until you have contacted a criminal defence lawyer.

You should not give any written statements or sign any documents, other than your bail form.

Am I free to leave the police station?

If you are not under arrest, you are free to leave the police station at any time.

However, if you are arrested, police can detain you for up to 6 hours for questioning before they must either:

(a) release you,

(b) charge you with an offence, or

(c) get permission from a Magistrate or Justice of the Peace to hold you for up to 6 more hours (see How long can I be held in custody?).

How can Sydney Criminal Lawyers® help me?

If you are arrested or called for a police interview, you should contact Accredited Criminal Lawyers to assist you.

Sydney Criminal Lawyers® can:

• advise you of your rights;
• explain any charges against you;
• explain your alternatives;
• make a bail application for you in Court (if you are refused bail by police); and
• represent you at your Court hearing.