Police have quite extensive powers regarding, for example, the search
and seizure of cars. In particular, police have gained a number of powers
to assist them to prevent or investigate serious crimes, including drugs
and terrorist offences. They are mentioned here as non-violent protestors
may get caught up in the exercise of these powers, as the powers often
differ according to where the car is and what class of vehicle it is,
rather than what someone has been doing.
11.1 Identification
Police may ask you to identify yourself or others if you are the owner,
driver or passenger of a car that police reasonably suspect has been
used to commit an indictable offence,1 or
to prevent or investigate terrorism,2 and
provide proof of your identity.3
Failure to do so correctly (or, where you are asked to identify others,
to the fullest extent possible) is an offence unless you have a reasonable
excuse.4 The penalties are severe,
carrying a maximum penalty of $5500 or 12 months gaol, or both.5
Before exercising this power, police must show they are a police officer,
give their name and place of duty, and provide reasons for the request.6 A
warning that you are obliged to comply with a request for identification
and that failure to comply constitutes an offence should also be given
as soon as reasonably practicable after making the request.7
11.2 Search and Seizure
Police search and seizure powers regarding vehicles depend on somewhat
arbitrary and confusing distinctions about where the vehicle is at the
time.
Police have the general power to stop, search and detain vehicles if
they hold a reasonable suspicion that the vehicle contains stolen goods,8 drugs,9 anything
used or intended to be used in serious offences10 or
people whom the police have grounds to exercise arrest, search or detention
powers against.11
Where the vehicle is on or near a public place or school, police have
more specific powers to stop, search and detain vehicles if the police
have a reasonable suspicion there is a dangerous article in the car or
there is a risk to public safety near the public place or school and
that the exercise of the powers may lessen the risk.12
Finally, police have the power to stop, enter, search and detain classes
of vehicles:
on roads,
on road related areas, or
in public places or schools,
but only in the following circumstances:
if they have reasonable grounds to suspect the vehicle
was used in the commission of an indictable offence (and stopping and
searching may provide evidence of the offence)13
if they have reasonable grounds to suspect there is
a serious risk to public safety near a public place or school (and
stopping and searching may lessen the risk),14 or
They also have ancillary powers to facilitate the exercise of these
powers, such as to give reasonable directions,16 and
erect roadblocks.17 For the purpose
of conducting a search pursuant to these powers, police must not detain
the vehicle for any longer than is reasonably necessary.18
It is generally a precondition to using these powers that the police
officer must show you they are a police officer, give you their name
and place of duty, and provide reasons for the request.19
11.3 Defect Notices
The police or Roads and Traffic Authority officers have the power
to inspect a vehicle for the purpose of deciding whether it is roadworthy.20 If
requested, you must allow the police or the Authority all reasonable
facilities for making such an inspection.21
If they find your vehicle defective, they can issue a defect notice,
impose conditions on the use of the vehicle or stop you from driving
it.22 Police have sometimes used
conditions in defect notices to disperse campaigners (by, for example,
requiring them to take the vehicle to a certain place within 24 hours).
(NSW) Law Enforcement (Powers and
Responsibilities) Act 2002 s 14.
Police may request a person's
name and address (and it must be provided) if they have a reasonable
suspicion that a person (or the vehicle in which they are in) is
the target of an authorisation for the use of special powers under
the (NSW) Terrorism
(Police Powers) Act 2002 (or they are found in
suspicious circumstances in the company of the target of the authorisation),
or they are in an area that is the target of an authorisation: see
(NSW) Terrorism
(Police Powers) Act 2002 s 16(1), (2) and (3).
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002 s 19 and (NSW) Terrorism (Police Powers)
Act 2002 s 16(4).
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002 s 15, 16 and 17.
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002 ss 15, 16 and 17 and (NSW)
Terrorism (Police Powers) Act 2002 s 16(2) and (3).
See (NSW)
Law Enforcement (Powers and Responsibilities)
Act 2002 s 201(1), (2A) and (3)(g). Unless it is a search made under a covert search warrant:
s201(3AA).
See (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 s 201(2C) and (NSW)
Terrorism
(Police Powers) Act 2002 s 23(3). A warning need not be given if you have subsequently
complied: (NSW) Law Enforcement (Powers and Responsibilities)
Act 2002 s 201(2C) and (NSW) Law
Enforcement (Powers and Responsibilities) Act 2002 s 201(2C) and (NSW)
Terrorism (Police Powers) Act 2002 s 23(3).
Under the terrorism laws, the requirement extends only to the exercise
of powers involving a request that a person is obliged to comply with
the law, which would seem to limit it to identification: see s 23(3).
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002s 36(1)(a).
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002s 36(1)(e).
See (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 s 36(1)(b) and (c) (which includes,
but is not limited to, indictable offences: see s 35) and (CTH)
Crimes Act 1914 s 3T(1) and (2). Under the federal powers, the police must
also hold a reasonable suspicion that using their powers in this way
is necessary for both forensic purposes and because of the serious
and urgent nature of the circumstances: s 3T(1)(b) and (c). If the
police use these powers, they can use whatever assistance is necessary
and use reasonable force, provided they do the search publicly and
do not detain the vehicle for longer than is reasonable: s 3U.
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002s 36A.
The power to stop, search
and detain for dangerous articles only extends to where the vehicle
is in a public place or school whereas the public safety power may
be exercised where the vehicle is in the vicinity of a public place
or school: see (NSW) Law Enforcement (Powers and
Responsibilities) Act 2002 s 36(1)(d) and (f).
(NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 s 36(2)(a).
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002 s 36(2)(b).
Provisions
relating to terrorism actually straddle the types of search and seizure
powers noted here at 11.2. For example, a police officer may, without
a warrant, stop, enter and search a vehicle, and anything in or on
the vehicle, if the officer suspects on reasonable grounds that the
vehicle or a person in the vehicle is the target of an authorisation,
or the vehicle is in an area that is the target of an authorisation
under the (NSW) Terrorism
(Police Powers) Act 2002: s 18.
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002 s 38.
(NSW) Law Enforcement (Powers
and Responsibilities) Act 2002 s 37. Unless police have a reasonable
suspicion that a roadblock is necessary and the circumstances are serious
and urgent, senior police are generally required to authorise a roadblock:
ss 40 and 41.
(NSW) Terrorism (Police Powers)
Act 2002 s 18(2).
See, for example, (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 s 201(1) and (3)(b)
and (3)(e) and the (NSW) Terrorism
(Police Powers) Act 2002 s 23(1).
Unless it is a search made under a covert search warrant: (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 s201(3AA).
(NSW)
Road Transport (Vehicle Registration) Act 1997 s 26(1). This includes the power to enter a
car: s 26(1B).
(NSW)
Road Transport (Vehicle Registration) Act 1997 s 26(1A). The penalty for failing to comply
is $2200. This provision applies to a registered operator or owner
of, or any person in charge of or having the custody of or selling
or having in possession for sale or otherwise of the vehicle: s 26(1A).
(NSW)
Road Transport (Vehicle Registration) Act 1997 s 26(2).
