Identification and being searched
Identification
There is no general law in NSW that requires you to identify yourself to a police officer. Many of the exceptions to this law are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (referred to as "LEPRA" below).
The decision as to whether or not to identify yourself is a practical one. Unless one of the exceptions exist (see below) you are free not to do so. You may feel more free to refuse if you are with a group of friends at a protest with plenty of people present. You may decide that it is easier to do identify yourself when there are many police officers and you are by yourself.
Although there is no general law which requires you to identify yourself, there are plenty of exceptions:
These include where:
- you are under arrest (s133 LEPRAct)
- you're under 18 and police suspect you of carrying or consuming
alcohol in public (s11 Summary Offences Act 1988 (NSW))
- you are a car driver or passenger
(s171 Road Transport (General) Act 2005 and s14 LEPRA
- police are trying to serve a fine default warrant
(s104 Fines Act 1996 (NSW)
- police believe on reasonable grounds that you may have been a
witness to an indictable (serious) crime (s11 LEPRA)
- you are suspected of an offence on public transport
(s96 Rail Safety Act 2002 (NSW)
- police suspect on reasonable grounds that an AVO (apprehended
violence order) has been made against you (s13A LEPRA)
- emergency powers have been declared under Part VIA LEPRA
- where special counter-terrorism powers have been authorised
Terrorism (Police Powers) Act 2002 (NSW)
It is unlikely that any of these powers will be used in the normal course of a public protest, although in July 2008 police authorised the use of emergency powers under Part VI of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) at a protest in Newcastle. Although the protest was peaceful, the emergency powers were declared and the police demanded the names and addresses of some of the protesters.
Proving your name and address
It is an offence to mislead the police about particular details relating to your name and address (s13 LEPRA)
Remember that you also have the right to ask the police officer their name and rank. If you ask, make sure you remember or write down what they say.
Police questioning: the law
Generally, you have the right not to answer police questions - the right to remain silent. You can answer ‘no comment’ to every question, except for your name and address (see above).
Police questioning: in practice
Remember, there are no ‘off the record’ questions or discussions, even if the police say there are.
In maintaining silence, you might feel really silly. Police officers may try to make small talk, discuss the weather, or ask you to explain your politics. Police officers are very good at doing this. But remember, as they say on tv, that anything you say can be taken down and used in evidence. They may be offended (“I was only trying to be friendly”) or they may make comments after the “official” interview (“now we have that out of the way, just tell me so that I can better understand your side of the story”). Anything you say may be used in evidence.
At the police station, the police officer behind the counter who does the paperwork (the custody manager) will ask you ask a number of personal care questions, such as whether you take any medication, or have epilepsy, diabetes, or whether you have injured yourself in the past. It is alright for you to tell the police this information, as it allows them to take measures for your welfare, such as providing a doctor to give you medication, or to take extra precautions to make sure that you don’t injure yourself. However, it is still your decision.
Except for the personal care questions, you should seriously think about not saying anything else.
The police do not ask questions because they are philosophers seeking the truth. They are questions to collect evidence, which they will use to put a case together to convict you. It is hardly ever in your interests, or in the interests of others at the demonstration, to answer police questions or speak with police.
The police may ask if you want to be interviewed. Say no. they may ignore this and take you to an interview room, start the audio (and video) tape, and ask you to confirm your name (for the tape). You can say “I do not wish to be interviewed and I have nothing to say.”
It is not advisable to give a give a partial interview, where you answer some questions and not others. If you do this, the whole interview can be given in court as evidence. If you give a “no comment“ interview, the police aren’t allowed to refer to that in court.
Police Searches
A body or property search is a serious invasion of privacy and is used by police to collect evidence.
If the police ask to search you at a protest, think strongly about saying “no.” Like asking questions, the police only search to get evidence to incriminate you. At protests, when police are being aggressive, they will use anything to bring a charge. A small cutting knife or pen knife or pair of scissors found in your possession can lead to a criminal charge. So can possession of the smallest amount of cannabis.
If the police think of searching you and you don’t think they have a legal reason, then it is almost always foolish to physically resist. They have weapons and you don’t. Even if the search is clearly illegal, anything on you that is found may be used against you anyway. The courts can decide to “exclude” such evidence, but it isn’t automatic (s138 Evidence Act 1995 (NSW)).
Police can search you if you are under arrest (ss23-24 LEPRA).
Police can search you if you consent. Sometimes, a police officer will ask you to open your bag or purse so that he or she can "look inside." It may not feel as if you are consenting, but this is consenting to a search. If a police officer wants to look inside your bag, try and clarify whether you are being asked to consent. Police officers can open purses and bags themsevles if they are conducting a search without your consent.
Under s21, police officers have a number of powers to conduct searches, include when a police officer suspects on reasonable grounds that:
- you have anything stolen or unlawfully obtained
- you have something intended to be used in a criminal offence
- a prohibited drug.
- a dangerous implement (s26 LEPRA).
If police do search you, try to make sure:
- you ask them (and make a note of) what offence you are reasonably
suspected of committing
- you note the location of the search (street names and numbers)
- you note the name and local area command of the officer[s] that
search you.
- that the police record that you did not consent to the search.
Frisk search
A police officer can ask you to remove your outer jacket or coat to conduct a frisk search. This is the only clothing that you can be asked to remove when it is a frisk search. The search should be conducted quickly by the police officer running his or her hands over your outer clothing or by passing an electronic metal detection over you, in close proximity to your outer clothing. It may also include an examination of anything worn or carried by you that can be conveniently and voluntarily removed. (s30 LEPRA)
Ordinary search
This requires you to remove your overcoat, coat or jacket or similar articles of clothing and any gloves, shoes and hat and a police officer will examine these items.(s30 LEPRA)
Strip search
A police officer can only carry out this search if there is a definite seriousness or urgency for this search to be carried out and reasonable grounds must be given for this search. During this search, you may be required to remove all your clothes, so there can be an examination of your body and clothing. A police officer must not search your body cavities. (s31 LEPRA)
The need to maintain privacy and dignity during any search is noted in s32 of LEPRA. This section outlines some of the obligations police have during a search.
It is very unlikely that a strip search will be carried out at a protest or in a protest-like situation. It is more likely to happen at a police station. Further information about strip searching is in the At the police station and bail part of this website.
Note: References to LEPRA are to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW))
Further reading: an important source is the NSW Police CRIME Code of Conduct (Custody, Rights, Investigation, Management and Evidence) (47 pages, February 2008 edition).