Being approached by police in public or at your home can be a nerve-wracking experience. Even if you haven’t done anything wrong, it is normal to feel nervous and anxious about why they are approaching you.

If this happens to you, it’s important to stay calm, polite and know your rights during this time.

Power to Enter Without a Warrant

In NSW police can enter your property without a search warrant in circumstances. Sometimes, police can legally enter your premises if you give them permission to enter – by inviting them in. If you do this and they see something that is unlawful on that property, you could be charged for something completely unrelated to why they are there. Therefore the first rule of thumb is to say “I do not give you permission to enter my property”, however that doesn’t mean you should obstruct or stop them because they usually will have a lawful reason to enter.

Secondly, Police officers should be in uniform or provide evidence of their position when they are attending your premises. They should state their name and station and give their reasons for wanting to enter the premises. A person has the right to request this information from a police officer and you can tell them to switch on their body worn camera. The power to search with and without a warrant comes from the Law Enforcement (Powers and Responsibility) Act 2002 (see sections 9, 10, 46 – 52 and 82).

Police can enter premises without a warrant if:

1. A breach of the peace has been committed (which may include very loud noise that is heard by the public, disruptive activities or violent behaviour) and it is necessary to enter in order to end or prevent the breach of the peace.
2. A person has suffered or in imminent danger of suffering personal injury.
3. An alleged domestic violence offence has occurred. They then have an obligation to inquire about possession of firearms and to search for and take any firearms.
4. To arrest or detain someone that has committed an offence. Here they do not need an invitation or a warrant if they reasonably believe that the person to be arrested or detained is in that premises or if they need to execute an arrest warrant. For example: if they were monitoring you in the community and think you need to be arrested for breaching the Public Health Act and you are in that property, then they will enter to detain you.

Entering premises for a search to determine compliance with the Lockdown with a Warrant

The relevant part of the Public Health Act can be summarised here:

1. Police are allowed to enter commercial and residential premises if they consider it necessary and they produce either a valid search warrant or a valid certificate of authority, or if the occupier provides informed consent.
2. A search warrant must be produced if they want to enter a ‘mixed use’ premises that is solely used for residential purposes or if the occupier provides informed consent.
3. Police can enter premises used solely for residential purposes ONLY if they have a valid search warrant, or the occupier provides informed consent.

Police must then provide reasonable notice to the occupier that they are going to search the premises, unless this would defeat the purpose of the search, and the search must be done at a reasonable time of the day, unless it there is an ‘emergency’ situation.

The above powers come from Section 108 of the Public Health Act.

If NSW Police have a search warrant, make sure you:

1. Get a copy of the search warrant and occupiers notice
2. Politely ask the officer about the why they are there to search and what they are looking for
3. Request that they record the entire search
4. Use your phone to record the search from a safe distance without obstructing any officer.
5. DO NOT argue the validity of the warrant when they are at your door – that’s not the appropriate time – your lawyer will do that in court
6. Remember that it is an offence to obstruct or hinder an officer or other person carrying out a search under that warrant.

What are the penalties for failing to comply with officers wanting to enter your premises?

• A fine of $5500 or imprisonment of up to 5 years if you are found to be hindering, intimidating or assaulting police.
• A fine of $5500 if you fail, without a reasonable excuse, to comply with an officer’s lawful direction to enter premises, answer questions or provide details under search authorised by the Public Health Act or a fine of $11,000, if you intimidate or willfully obstruct or hinder an officer who is exercising a function under that Act. See Sections 113, 116 and 118 Public Health Act.

If you have been charged by NSW Police or need assistance with a wrongful search or arrest, call  1800 100 529 to speak to a Criminal Law Specialist.   

Written by Mr. Chadi Irani, Accredited Specialist in Criminal Law
Powerhouse Law Australia