Police And Identity Checks
Police in New South Wales are granted various powers by the Law Enforcement (Powers and Responsibilities) Act 2002. It is important for people to understand their rights when approached by police, especially in relation to identity checks.
The Act specifies when a police officer can require a person to disclose their identity. Such circumstances include when the officer:
- reasonably suspects a person can help investigate an alleged 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 the
Anyone who fails or refuses to disclose their identity without reasonable excuse is liable to a fine of up to 2 penalty units ($266.90). If someone gives a false name, or an address that is not full and correct, they are also liable to the same fine.
The police officer can ask the person to provide proof of their identity.
Other Acts specify situations in which a police officer can require a person to disclose their identity. These include when the officer:
- suspects 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)
- 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 reasonable suspects a vehicle is, was or may have been used in connection with an indictable offence (a serious crime such as murder, rape or armed robbery) the officer has certain rights when it comes to identification. The officer 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.
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 ($6672.50) or 12 months imprisonment or both. The same penalty applies to a driver or a passenger or a vehicle owner who does not disclose the identity of any driver of, or any passenger in, the vehicle. It also applies if someone gives a false name, or an address that is not full and correct.
Police can require a person to remove their face covering so the officer can see the person’s face if this is needed to provide photographic identification or so the person can be identified. The officer must ask for the person’s co-operation, 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 ($6672.50) or 12 months imprisonment or both. A person may have a “special justification” for not removing a face covering is they have a legitimate medical reason or another excuse prescribe din regulations.
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 (by asking to see the duty officer of Local Area Commander), to the Commissioner of Police, or to the NSW Ombudsman’s office.
For advice or representation in any legal matter, please contact Armstrong Legal.