Police Powers + eroding right to silence

The Law Enforcement (Powers and Responsibilities) Act 2002 contain the police powers relating to arrest in NSW. This post will offer a breakdown of arrest – when it is lawful and what a person’s rights are. 


Under s 99 of LEPRA, a police officer may make an arrest without a warrant if they suspect, on reasonable grounds, that a person has committed an offence or is about to commit one. Reasonable suspicion must have factual information as a basis. It involves less than a belief but more than a possibility (see R v Rondo).

S 99(1)(b) contains a list of other instances in which an officer can make an arrest without a warrant, including but not limited to:

  • To protect the safety of any person (including the offender).
  • To prevent a person fleeing a crime scene.
  • To establish a person’s identity if it cannot be established, or if it is believed to be a false identity.
  • To preserve evidence of the offence.

Under s 101 of LEPRA, a police officer can arrest a person with a warrant out for their arrest. The officer does not have to be in possession of the document themselves, but the person being arrested must be named in the warrant. 

The most important thing to do is comply with the arrest – whether it is lawful or not will be established afterwards. This is to prevent a person being charged with resisting arrest, which can carry a penalty of up to 1-year imprisonment and 10 penalty units under s 546C of the Crimes Act.

Reasonable Force

Under s 231 of LEPRA, police officers are empowered to use as much force as is reasonably necessary to conduct an arrest or to prevent the escape of a person being arrested. Whilst no definition of what qualifies as ‘reasonably necessary’ is provided, the NSW Police Force Handbook instructs officers to use the minimum amount of force that is required:
“To avoid excessive application of force and maintain an effective incident response you should use the minimum amount of force that is appropriate for the safe and effective performance of your duties and proportionate to the risks you face”.



(cf Crimes Act 1900 , s 563)

(1) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.

(2) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place.


Requirement for responsible person to disclose driver identity

 (1) If the driver of a motor vehicle is alleged to have committed an offence against the road transport legislation:

(a) the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver, and

(b) any other person must, if required to do so by an authorised officer, give any information that it is in the person’s power to give and that may lead to the identification of the driver.

Maximum penalty: 20 penalty units.

Police responsibilities

In relation to arresting a person, section 202 of the LEPRA states that an officer must provide evidence of being a police officer, unless they’re ununiformed at the time. They must also disclose the reason they’re arresting you.

Section 115 of LEPRA provides that, upon arresting a person, police have a six hour investigation period before they must either release or charge them. This period does not include ‘time out’, which are times taken travelling, contacting a lawyer or family, sobering up, using bathroom facilities or time spent on medical attention. Police can make a one-off application to a magistrate for a six hour extension of the investigation period.

Police have the power to photograph, fingerprint and palmprint an individual over 14 who’s been taken into custody. However, to take a DNA sample – usually via saliva or hair – without a person’s consent, a magistrate’s approval must be obtained under section 24 of the Crimes (Forensic Procedures) Act 2000 (NSW).

Your rights on arrest

Part 9 division 3 of the LEPRA sets out that a person taken into police custody has the right to communicate with an Australian legal practitioner, a relative, a friend, a guardian or an independent person. A foreign national can make contact with their nation’s consulate or embassy.

A person who has “inadequate knowledge of English” has the right to an interpreter. And an individual who is being held by police has the right to necessary medical attention, as well as access to reasonable refreshments and the use of toilet facilities.

Section 122 of the LEPRA provides that on arrival at a station, a custody manager must caution an arrested individual on their right to silence, which outlines that they don’t “have to say or do anything”, but anything they do “say or do may be used in evidence” against them.

And on being arrested, it’s best to only provide your name, address and date of birth and say nothing else until you get in contact with a good criminal lawyer, who’ll be able to advise you as to how to proceed from that point on.

Eroding the right to silence

However, over recent years, the right to silence in NSW has been watered down. At the request of NSW police, the O’Farrell government changed the law so that under certain circumstances the refusal to answer questions can later be taken as an admission of wrongdoing.

In 2013, section 89A was inserted into the Evidence Act 1995 (NSW). It provides that an officer can give a special caution to a person charged with a serious indictable crime – one that carries at least 5 years prison – which means refusing to answer questions can lead to an “unfavourable inference”.

This special caution must be delivered in the presence of a lawyer. So, this has led to a situation where lawyers don’t always attend the police station for fear they’ll hinder their client’s right to silence, as well as enable police to use tactics which elicit versions of events that suit them.