Rights when approached by Police
Police in NSW have extensive powers; far greater than police in most other ‘modern’ nations, including the United States, Great Britain and Canada. Those powers are constantly increasing, making it hard for us to know our rights at any one time, and easy for police to abuse their position of authority. The following is a basic outline of some of the rules.

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 (your name and address). They include:

·       when you are driving a car, and you

(i) are suspect of a traffic offence (eg speeding); or

(ii) refuse a breath test;

·       when you own or were driving a car and police ‘reasonably suspect’ that it was used in a crime;

·       when you are under 18 and police ‘reasonably suspect’ you of carrying or consuming alcohol in a public place;

·       when the police ‘reasonably believe’ that you witnessed a serious crime;

·       when you have unpaid fines and police are trying to serve a ‘fine default  warrant’; 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 the Traffic Act 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 Traffic 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 the sake of it!

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

            1.         show evidence that they are police (unless they are in uniform);

            2.         tell you their name and police station;

            3.         tell you why they are giving the direction; and

            4.         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.

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: 

                1.             you can obey the direction and complain later
                                Lodge a Formal Complaint with the NSW Ombudsman Now  ; or

2.             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, 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 for questioning if I’m not a suspect?
No. You can only be arrested if you are suspected of an offence. If police believe that you might have information about a crime, they may ask you to attend a police interview; but you don’t 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.

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 body, car 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).

          Lodge a Formal Complaint with the NSW Ombudsman Now

What types of searches can police do?

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

1. 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.

2. 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. Strip 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.

3. 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 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; 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 a solicitor help me?
If you are arrested or called for a police interview, you should contact a solicitor (lawyer) who is familiar with the criminal law. They 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.

For personalised advice and/or Court representation: Contact us now

For more information, see:
http://laws.lawsociety.com.au/legalhelp/answers/arrest/print_index.html
http://www.austlii.edu.au/au/other/liac/hot_topic/hottopic/1999/3/9.html
http://www.lawlink.nsw.gov.au/crd.nsf/pages/community4
Our Rights: The Activist’s Rights Guide August 2000
Manning, N Youth Justice: Your Guide to the Cops and Court 2000
UTS Community Law and Research Centre Youth Street Rights 1999