Being arrested is a very stressful experience. Whether you’re caught off-guard by police approaching you on the street or dealing with a more serious criminal matter, understanding your rights and what police can and cannot do during an arrest is crucial for protecting yourself.
In NSW, strict laws govern when and how police can arrest someone. These laws are designed to balance effective law enforcement with your fundamental civil liberties.
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Key Takeaways:
- Police must have reasonable grounds to suspect you’ve committed an offence, AND the arrest must be reasonably necessary for specific reasons
- You have the right to know why you’re being arrested and the officer’s identity
- Police can only use reasonable force; excessive force is unlawful
- Failing to comply with arrest requirements can make the arrest
O’Brien Criminal & Civil Solicitors are award-winning specialists with over 20 years of experience defending clients’ rights across Australia.
At a Glance: Essential Arrest Facts
Your Key Rights:
- Police must tell you that you’re under arrest and explain why
- You have the right to remain silent except for providing your name and address
- Police can only use reasonable force to make the arrest
When Police CAN Arrest You:
- They have reasonable grounds to suspect you committed/are committing an offence
- They have a warrant for your arrest
- You’ve breached bail conditions
- For breach of the peace (threatening or provoking violence)
Emergency Action Items:
- Remain calm and don’t resist; even unlawful arrests can lead to additional charges
- Ask for the officer’s name, badge number, and reason for arrest if not provided
- Remember: anything you say can be used in evidence against you
Seek Legal Help Immediately If:
- Police use excessive force during arrest
- You’re not told why you’re being arrested
- Police fail to identify themselves
Understanding Your Rights: The Legal Framework
In NSW, police arrest powers are governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). This legislation creates a careful balance between giving police the tools they need to maintain public safety while protecting your fundamental rights and freedoms.
The law recognises that arrest is a significant interference with personal liberty, which is why it sets strict criteria that must be met before police can lawfully arrest someone. These safeguards exist because of the high value our legal system places on personal freedom; you can’t be arrested simply because police want to question you or investigate whether you might have committed a crime.
Recent High Court decisions have reinforced that arrests must be for the purpose of bringing someone before a court and commencing proceedings, not for investigation or punishment. This principle ensures arrests are used appropriately rather than as a general law enforcement tool.
Read our article on Your Rights If Arrested in NSW.
What the Law Actually Says: Section 99 Requirements
Section 99 of LEPRA sets out exactly when police can arrest someone without a warrant. The law requires two separate conditions to be satisfied before an arrest can be lawful:
First Condition: Reasonable Grounds for Suspicion
Police must suspect on reasonable grounds that you are committing or have committed an offence. This means more than just a hunch or possibility; there must be a factual basis for their suspicion.
The courts have defined this as “less than a reasonable belief but more than a possibility”.
Second Condition: Arrest Must be Reasonably Necessary
Even if police suspect you’ve committed an offence, they can’t automatically arrest you. They must also be satisfied that an arrest is reasonably necessary for at least one of these specific reasons:
- To stop you committing, repeating, or committing another offence
- To stop you fleeing from police or the crime scene
- To establish your identity if it can’t be readily established or if they suspect false information
- To ensure you appear before a court
- To obtain property connected with the offence
- To preserve evidence or prevent evidence fabrication
- To prevent harassment of or interference with witnesses
- To protect someone’s safety or welfare (including yours)
- Because of the nature and seriousness of the offence
Critical Change in 2013: The law was amended to replace the previous “reasonable grounds” test for necessity with a requirement that police be “satisfied” that arrest is reasonably necessary. This gives police more discretion but they must still genuinely consider whether arrest is necessary rather than just convenient.
Alternatives to Arrest
If these conditions aren’t met, police should issue a Future Court Attendance Notice instead of arresting you. The Supreme Court has emphasised that arrest should be a “last resort” when other options like a summons are impractical.
Real-World Scenarios: When Arrests Are and Aren’t Lawful
Understanding how these laws apply in practice can help you recognise whether police are acting within their authority.
Scenario 1: Traffic Stop Drug Detection
Police CAN: Stop your vehicle if they suspect on reasonable grounds you possess prohibited drugs, search you, and arrest you if drugs are found and they believe you might flee or destroy evidence.
Police CANNOT: Arrest you for a minor traffic offence just because they want to search your car more thoroughly, unless they can point to specific reasons why arrest is necessary under section 99.
Scenario 2: Domestic Violence Call
Police CAN: Arrest you for domestic violence offences if they have reasonable suspicion of assault and believe arrest is necessary to protect the victim from further harm.
Police CANNOT: Arrest you simply because someone has made a complaint, without forming their own reasonable suspicion based on available evidence.
Scenario 3: Breach of Bail Conditions
Police CAN: Arrest you for bail breaches, but only after considering specific factors including the seriousness of the breach, whether you have a reasonable excuse, your personal circumstances, and whether alternatives to arrest are appropriate.
Police CANNOT: Automatically arrest you for any bail breach without considering these mandatory factors. The 2024 case of Bugmy v DPP(NSW) confirmed that failing to consider these factors makes the arrest unlawful.
What Authorities Can and Cannot Do During an Arrest
Information Police Must Provide
Under section 202 of LEPRA, when arresting you, police must provide:
- Evidence they are a police officer (unless in uniform)
- Their name and place of duty
- The reason for exercising the arrest power
This information must be given “as soon as reasonably practicable”. If police fail to provide this information, it can affect the lawfulness of the arrest.
Use of Force During Arrest
Police can use “such force as is reasonably necessary” to make an arrest or prevent escape. However, this force must be:
- Reasonable – justified in the circumstances
- Appropriate – suitable for the situation
- Proportionate – not excessive compared to the threat or resistance
What This Means in Practice:
- Police can use handcuffs, batons, OC spray, tasers, or firearms if circumstances justify it
- The level of force must match the level of resistance or danger
- Force cannot be used as punishment – only to effect the arrest
- Officers must be able to explain why their use of force was reasonable
Recent Developments: The NSW Police Use of Force Manual emphasises that officers must make “dynamic risk assessments” and consider factors like the person’s age, mental state, intoxication, and the number of officers present.nswcourts
Common Misconceptions Corrected
Misconception: Police can arrest you just to ask questions.
Reality: Police cannot arrest someone merely for investigation or questioning – they must intend to commence proceedings.
Misconception: You must answer all police questions if arrested.
Reality: Apart from providing your name and address, you have the right to remain silent.
Misconception: If you’re arrested, you must be guilty of something.
Reality: Police only need reasonable suspicion, not proof. Many arrests don’t result in charges being laid.
FAQs
Can police arrest me without telling me why?
No. Police must tell you that you’re under arrest and explain the reason for the arrest as soon as reasonably practicable.
What if police don’t identify themselves?
Unless they’re in uniform, police must provide evidence they are police officers, plus their name and place of duty. Failure to do so can affect the arrest’s lawfulness.
Can I resist an unlawful arrest?
No. Even if you believe the arrest is unlawful, you should not resist. You can be charged with resisting police even if the original arrest was unlawful.
How long can police hold me after arrest?
Police must bring you before a court “as soon as reasonably practicable”. Generally, this means within 24–48 hours, but it can vary based on court availability.
Can the police search me when they arrest me?
Yes, police can search you when making an arrest to ensure officer safety and preserve evidence, but the search must be reasonable in scope.
What if I was arrested for someone else’s crime?
Mistaken identity arrests can happen. The key question is whether police had reasonable grounds for suspicion at the time of arrest, not whether you’re actually guilty.
Can the police arrest me for a minor offence like jaywalking?
Technically yes, if they have reasonable grounds for suspicion and can justify why arrest is necessary under section 99. However, for minor offences, police would typically issue a fine instead.
Do I have to go to the police station if asked nicely?
No. Police can ask you to voluntarily accompany them, but you can refuse. They cannot force you without arresting you.
Can the police arrest me based solely on someone else’s statement?
Police need reasonable grounds for suspicion, which can include witness statements, but they must consider the reliability and circumstances of such statements.
What happens if police use excessive force during my arrest?
Excessive force is unlawful and can result in criminal charges against the officer, civil compensation for you, and potentially make any evidence obtained inadmissible.
Can I be arrested for filming police?
Generally no, unless you’re interfering with police duties, on private property without permission, or breaching other laws. Filming police in public is usually legal.
What if police arrest the wrong person at a multi-person scene?
Recent case law shows that when multiple police are present, some arrests may be lawful while others are unlawful, depending on each officer’s knowledge and actions.
Practical Action Guide: What to Do If You’re Arrested
What to Do:
- Stay calm: Don’t argue, flee, or physically resist
- Ask for information: “What is your name, badge number, and why am I being arrested?”
- Exercise your right to silence: Say “I choose to remain silent and want to speak to a lawyer”
- Provide basic details: Give your correct name and address if asked
- Observe and remember: Note officer details, time, location, and any witnesses
- Request a lawyer: Ask to contact a lawyer as soon as possible
- Document injuries: If force was used, seek medical attention and photograph any injuries
What to Say:
- “I do not consent to any search”
- “I am exercising my right to remain silent”
- “I want to speak to a lawyer before answering any questions”
- “Can you please provide your name, badge number, and the reason for this arrest?”
Documentation Advice:
- Write down everything you remember as soon as possible
- Get witness contact details if safe to do so
- Take photos of any injuries or property damage
- Keep all court documents and receipts
- Save any relevant text messages or social media posts from around the time of arrest
Professional Help: When You Need a Lawyer
Seek Immediate Legal Assistance If:
- Police used excessive force during your arrest
- You weren’t told why you were being arrested
- Police failed to properly identify themselves
- You believe the arrest was unlawful or unnecessary
- You’re facing serious charges that could result in imprisonment
- You have a disability or mental health condition that affected the arrest
Read our article on The Role of a NSW Solicitor During an Arrest.
What to Expect from Your Lawyer:
Your lawyer will review the circumstances of your arrest to determine if police followed proper procedures. If the arrest was unlawful, this can lead to charges being dropped, evidence being excluded, or civil compensation claims. We’ll also represent you in court and negotiate with prosecutors on your behalf.
At O’Brien Criminal & Civil Solicitors, our award-winning team has over 20 years of experience protecting clients’ rights across Australia. Led by accredited specialists in criminal law and civil law, we have a proven track record of challenging unlawful arrests and securing the best possible outcomes for our clients.
If you believe police have acted unlawfully during your arrest, don’t wait. Contact us immediately for expert legal advice.
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Don’t let an unlawful arrest affect your future – get the expert legal representation you deserve.
