Police and Identity Checks (NSW)

Police in New South Wales have powers to require a person to disclose or confirm their identity under the Law Enforcement (Powers and Responsibilities) Act 2002. It is important for people to understand both their obligations to confirm their identity and their rights when approached by police.

Identity disclosure

A police officer can require a person to disclose their identity (and provide proof of their identity) in certain circumstances including when the officer:

• reasonably suspects a person may be able to assist in relation to the investigation of an indictable offence because the person was at or near the place it allegedly occurred, whether before, when or soon after it occurred, the officer can require the person to identify themselves;
• wants to direct that person to leave a public place;
• believes an Apprehended Violence Order (AVO) has been made against them;

Police can only request a person disclose their identity in these circumstances when their identity is unknown to police. 

Anyone who fails or refuses to disclose their identity without reasonable excuse may be charged with an offence. If someone gives a false name, or an address that is not full and correct, they may also be charged. The maximum penalty for both offences is 2 penalty units.

In addition to the above, there are other instances whereby police can require a person to provide their identity information. This includes situations whereby police:

• suspect a person is aged under 18 and carrying or consuming alcohol in a public place (Summary Offences Act 1988);
• is trying to serve a fine default warrant (Fines Act 1966); or
• suspects a person has or may become involved in a large-scale public disorder (Crimes Act 1900).

Identity checks and motorists

If a police officer reasonably suspects a vehicle is, was or may have been used in connection with an indictable offence they can require:

• the driver to disclose their identity and that of any passenger at the time the vehicle was last used or when a direction was given to stop the vehicle;
• any passenger to disclose their identity, that of any other passenger, and the driver, at the time the vehicle was last used or when a direction was given to stop the vehicle;
• the vehicle’s owner (who may have been the driver or a passenger) to disclose the identity of the driver and that of any passenger at the time the vehicle was last used or when a direction was given to stop the vehicle.

Indictable offences are offences which can be proceeded with on indictment, and include all offences except summary offences. Indictable offences include offences such as Assault Occasioning Actual Bodily Harm (and more serious assaults), Supply Prohibited Drug, Dangerous Driving Occasioning Death or Grievous Bodily Harm, Fraud, sexual offences and murder. 

If the driver or a passenger fail or refuse to disclose their identity without reasonable excuse, they are liable to a fine of up to 50 penalty units or 12 months imprisonment or both. The same penalty applies to a vehicle owner who does not disclose the identity of any driver of, or any passenger in, the vehicle at the relevant time. It also applies if someone gives a false name, or an address that is not full and correct.

Face coverings

Police can require a person to remove their face covering so the officer can see the person’s face, but only if this is needed to provide photographic identification or so the person can be identified. The officer must ask for the person’s cooperation, and view the person’s face in a way that affords them reasonable privacy (if requested) and is as quick as reasonably practicable. Non-compliance makes a person liable to a fine of up to 50 penalty units and/or 12 months imprisonment. A person may have a “special justification” for not removing a face covering if they have a legitimate medical reason or another excuse prescribed in regulations.

Complaints

If a person believes a police officer may have misused their power in relation to requiring identification, the person can make a complaint. A complaint can be made at the local police station to the duty officer of Local Area Commander, to the Commissioner of Police, to the NSW Ombudsman’s office or to the Law Enforcement Conduct Commission.

For advice or representation in any legal matter, please contact Armstrong Legal.