Quick Guide to Police Powers in New South Wales 

In New South Wales, police officers have a wide range of powers which enable them to perform their duties. These powers are mainly set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) which provides legislated guidelines for how they are to be performed.

This article will set out the main powers in this Act being arrest, the use of force, and the power to ‘stop, search and detain’. 

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Arrest

A police officer may arrest a person without a warrant if the person is committing or has committed an offence, and the officer is satisfied that the arrest is reasonably necessary. 

In order for an arrest to be ‘reasonably necessary’, the police officer will need to be satisfied that the action is for any one or more of the following reasons:

• to stop the accused committing or repeating an offence, 
• to prevent an accused person fleeing, 

• to allow enquiries regarding the person’s identity (if it cannot be readily established) or if the officer suspects, on reasonable grounds, that the identity information provided is false, 

• to ensure that the person appears before a court regarding the alleged offence, 
• to obtain property in the accused’s possession that is connected with the alleged offence,
• the preserve evidence or prevent fabrication of it, 
• to prevent any harassment or interference with witnesses,
• to protect the safety and welfare of any person, 
• the nature and seriousness of the alleged offence.

Once arrested, the police officer must as soon as reasonably practicable, take the person before an authorised officer, such as a Magistrate, to be dealt with according to the law.

However, an officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer. 

Police officers have a maximum of six hours to investigate and make inquiries before they are required to charge a person with an offence or release them.

The ‘investigation period’ commences when a person is arrested. However, this limit may be extended by a detention warrant.

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          Use of force

Police officers may use such force as is ‘reasonably necessary’ to exercise a lawful function or power, including to make an arrest or to prevent the escape of a suspect after arrest. 

Whether a use of force is ‘reasonably necessary’ will depend on a multitude of factors including whether the accused person is resisting, as well as their size, age, fitness, and gender. 

For example, more force will be warranted if a suspect is large, fit, and is putting up strong resistance, compared to a person who is complying with police, which would indicate that force is not required.

When considering what force is used, police officers have numerous options available to them including the use of capsicum (i.e., ‘pepper’ or ‘OC’) spray, a baton, a taser, or a firearm. 

Police officers are required to continually monitor the situation present and adjust their use of force to changing circumstances, to ensure it is reasonably necessary. 

If force used by an officer is found to exceed what would be deemed ‘reasonably necessary’, their actions may be ruled unlawful, leaving them liable to being charged with an offence, alike to any regular civilian.

It is important to note that the lawfulness of any force employed will also depend on the lawfulness of the exercised power it is purported to assist. For examples, if an arrest is unlawful, the force used to execute it can also be deemed unlawful.

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‘Stop, search and detain’

A police officer may, without a warrant, stop, search, and detain a person, if the officer suspects on reasonable grounds that the person possesses or controls anything:

• stolen or otherwise unlawfully obtained,
• anything used or intended to be used in or in connection with the commission of a relevant offence,
• considered a ‘dangerous article’ (i.e., weapons including firearms, spear guns, detonators) that is being or was used in or in connection with the commission of a relevant offence,
• considered a prohibited drug or plant (i.e., cocaine, MDMA, ketamine, cannabis, or a cannabis plant).

The officer is then able to seize and detain any of the outlined objects found because of a search.

A police officer being required to have a reasonable suspicion that a person is committing an offence prior to exercising a power is a common theme throughout the Act.

A reasonable suspicion has been held to involve less than a reasonable belief but more than a possibility. This means that it must have some degree of factual basis and not be arbitrary.

When searching someone, and an officer suspects on reasonable grounds that any of the outlined objects are concealed in the person’s mouth or hair, they may require the person to:

• open their mouth to enable it to be searched, or 
• shake, or otherwise move, their hair.

However, this does not authorise a police officer to forcibly open a person’s mouth.

There are two main types of searches that a police officer may perform on a person, being a ‘general’ or ‘strip’ search.

When conducting a general search, a police officer may:

• quickly run their hands over the person’s outer clothing, 
• require the person to remove their coat or jacket and any gloves, shoes, socks, or hat (however, this will not include the removal of all of the person’s clothes), 
• examine anything in the possession of the person, and
• pass an electronic metal detection device over or near the person’s outer clothing or anything removed from the person. 

In comparison, a ‘strip search’ is a far more invasive power which generally involves the removal of all of a person’s clothes.

A strip search may only be performed where it is both necessary for the purposes of the search, and where the ‘seriousness and urgency’ of the circumstances make it necessary.

Whether a situation is ‘serious and urgent’ will depend on its facts, with officers required to be able to provide their reasons for deeming it as such.

The requirement of ‘seriousness and urgency’ is not applicable where it is conducted in a police station or other place of detention, with it only required to be necessary for the purposes of the search.

Strip searches must be conducted in a private area and not in the presence or view of a person who is of the opposite sex to the person being searched, or a person whose presence is not necessary for the purposes of the search, as far as this is reasonably practicable in the circumstances.

They must also not involve a search of a person’s body cavities or an examination of the body by touch, or the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary.

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For further information or legal assistance, contact our team of defence lawyers for a free consultation.

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