Police Powers

Police officers have the power to arrest you in the following circumstances:

  • You are committing an offence; 
  • Police have a reasonable belief that you are about to commit, or have committed, and offence;
  • You are breaching the peace;
  • To execute an arrest warrant;
  • You have breached bail conditions; and/or
  • Police need to serve an AVO on you.

Do not physically resist or hinder your arrest otherwise you may be liable for criminal charges which carry a maximum penalty of 12 months imprisonment. If a police officer is assaulted during your resistance or hindrance, the maximum penalty increases to between 5 -14 years imprisonment depending upon the factual circumstances.

Generally, you do not need to answer police questions, except in the following circumstances:

When driving or on the road

  • You must give police your name and address (and provide your licence) if you are driving or accompanying a learner driver.
  • If you were involved in a traffic accident you must give your name and address to the other driver involved. You also must give that information and other details about the accident to the police.
  • If you own or are responsible for a vehicle, you must give police the name and address of the driver of a vehicle if it is alleged that he/she committed a traffic offence.
  • If a vehicle is suspected of being used for a serious offence, the owner, driver, and passengers must provide their names and addresses (and those of each other) to the police. If full names and addresses are not known, you are required to give as much information about the person’s identity as you know.

Times you are required to provide your name and address

  • If you are suspected of committing an offence on a train or railway property.
  • If police suspect that you are under 18 and you are carrying or consuming alcohol in a public place. They may also require you to provide proof of age (if you are under 18, they may take your alcohol).
  • If police suspect that you were at or near the scene of a serious offence and that you may have information that would assist them.
  • If police are trying to serve a fine default warrant.
  • If police have emergency public disorder powers, you are in a target area, and the police suspect that you have been or may become involved in a large-scale public disorder.
  • If police suspect that an apprehended violence order has been made against you.
  • When the police give you a ‘move-on direction’ if your identity is unknown to the police.

If you have been arrested, you have the right to silence. Before you are formally interviewed, police will give you a piece of paper which explains your rights. You will also be given a chance to speak with a lawyer or friend/family. Police need only wait two hours for you to make that initial contact, so it is important to immediately seek the advice of an experienced lawyer who can help best protect your rights.

In certain serious offences, police can administer a special caution, the effect of which is that if you 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. Police can only use a special caution if:

  • You have had an opportunity to obtain legal advice from your lawyer; and
  • You are given the special caution in the presence of your lawyer.

If you are not represented by a lawyer or if your lawyer is not present when police speak to you, police cannot use a special caution.

Police officers have the power to stop, search, and detain individuals if they have reasonable grounds that any of the following circumstances exist:

  • The person has in his or her possession or control anything stolen or otherwise unlawfully obtained.
  • The person has in his or her possession or control anything used, or intended to be used during, or in connection with, an offence.
  • The person has in his or her possession or control in a public place a dangerous item that is being used, or was used, during, or in connection with, an offence.
  • The person has in his or her possession or control a prohibited substance.

A reasonable suspicion involves less than a reasonable belief but more than a possibility, and there must be a factual basis for the suspicion. If police search you without the proper authority, then any evidence obtained after that stop is illegally obtained and may not be admissible in Court. You may also be able to sue NSW Police in the civil jurisdiction if it is determined that police stopped and detained you improperly.

If you are stopped by police, you are not obligated to answer their questions, but you should ask why you are being stopped and comply with any search while making it clear that you do not consent to it.

If you are in a public place and you are acting in certain ways, police can give you a move on direction. These circumstances may include:

  • You are obstructing another person or traffic;
  • You are harassing or intimidating another person or people;
  • You are causing another persons or people fear (or likely to cause fear);
  • You are attempting to obtain or supply prohibited drugs;
  • You are intoxicated and police reasonably believe you are likely to cause injury to any person or damage property;

It is an offence not to comply with this direction. It is also an offence to be intoxicated in the same or another public place within six hours of being given a move on direction for which the maximum penalty is a $220 fine.

Police have the power to detain you if you are in a public place and you are substantially intoxicated to the extent that you present a danger to others or yourself or you are acting in a disorderly manner. Police can release you into the care of a responsible person. If a responsible person cannot be located, or you are acting so violently that a responsible person may not be able to control you, police can take you to a police station.

While being detained at a police station, you must be kept away from others who are being detained with respect to criminal offences, and you must be provided with food, drinks, and bedding. As soon as you are no longer intoxicated, police must release you