Police powers to search premises during the Sydney Lockdown

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.

Entering premises for a search to determine compliance with the Lockdown

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.

 

Power to Enter for Breach of Peace, Emergency or Domestic Violence Without a Warrant

The power to search with and without a warrant also comes from the Law Enforcement (Powers and Responsibility) Act 2002 (see sections 9, and 46 – 52).

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 obligations to inquire about possession of firearms and to search for and take any firearms.

See Section 9 of the Law Enforcement (Powers and Responsibility) Act 2002 for further details.

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

  • 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.
  • A fine of $11,000, if you intimidate or willfully obstruct or hinder an officer who is exercising a function under the 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