Your Rights When Questioned by Police in NSW If police want to “have a chat”, it’s easy to panic—or to say too much. This article explains the essentials, the traps, and practical scripts you can use. Quick answers (the 60-second version) You usually don’t have to answer questions. That’s the right to silence. Police can’t invite a court to draw a negative inference from you staying silent—except in limited “special caution” cases for serious indictable offences (explained below).  Give your name and address only when the law requires it (for example, if you’re the driver of a vehicle or police lawfully require identity. Don’t lie about identity.  Ask: “Am I under arrest or free to leave?” If you’re under arrest or a “protected suspect”, you must be cautioned and told your Part 9 rights (including the right to contact a lawyer).  You can talk to a lawyer before any interview and ask them to be present. Police must provide reasonable facilities to do so.  Interviews should be recorded. For indictable matters, unrecorded admissions are generally inadmissible.  Police must identify themselves and explain the power they’re using and why.  If you’re Aboriginal or Torres Strait Islander, police must notify the Aboriginal Legal Service unless you already have a lawyer attending.  Passwords: you do not have to hand over phone/computer passcodes unless police have a Digital Evidence Access Order (DEAO) linked to a warrant (failing to comply can be an offence).  1) The right to silence—what it really means (and the “special caution” trap) General rule. You are not obliged to answer police questions. In a criminal case, a court must not draw an unfavourable inference from your silence during police questioning—subject to s 89A.  The exception (s 89A). For serious indictable offences (punishable by 5+ years), a jury may draw an adverse inference if: (a) police give you a special caution in the presence of your lawyer, and (b) you later rely on a fact at trial that you didn’t mention when questioned and could reasonably have been expected to mention. This is narrow and strictly conditioned.  Takeaway. Unless your lawyer says otherwise, the safest default is: “I do not wish to answer questions. I want to speak to a lawyer.” Cautioning. Statements can be excluded if police didn’t properly caution you that you needn’t say or do anything and that anything you do say or do may be used in evidence.  2) Do I have to give my name and address? Yes, in specific situations—don’t guess. You must provide identity when the law requires it, including: When driving or riding: you must produce your licence (if driving) and state your name and address if lawfully required under the Road Transport Act 2013 (NSW) s 175.  When LEPRA authorises a requirement to disclose identity (for example, where police suspect on reasonable grounds that you can help with an indictable offence, or before issuing certain directions).  If you are required to give identity: tell the truth and nothing more. If not required, you can politely decline. 3) What police must tell you (safeguards) When exercising certain powers (stop/search/arrest/require identity/give enforceable directions), police must: identify themselves (name and place of duty), and state the reason for exercising the power. 4) Are you under arrest—or a “protected suspect”? The moment you are under arrest or become a protected suspect (in the company of police for an investigative procedure and reasonably suspected of an offence), LEPRA Part 9 kicks in. A custody manager must caution you and give you a written summary of your rights (s 122), and you must be given the opportunity to contact a lawyer and a support person (s 123).  Practical script: “Am I under arrest, or am I free to leave? If I’m under arrest or a protected suspect, I’d like my Part 9 caution and to speak to a lawyer before any questions.” 5) Time limits if you’re detained for questioning Police may detain you for investigation after arrest, but the maximum “investigation period” is 6 hours, not counting “time out” (for legal advice, rest, medical care, interpreter, travel, and other listed items). Police can apply to a magistrate/authorised officer for a detention warrant to extend up to another 6 hours (maximum 12).  6) Interview recording (ERISP) and why it matters For indictable matters, oral admissions during official questioning are generally inadmissible unless electronically recorded (there are narrow exceptions for a “reasonable excuse”). If police want to interview you, you can say:“No comment. If there’s to be any interview, it must be electronically recorded, and I want legal advice first.”  7) Digital devices and passwords (DEAO) Without a court-issued Digital Evidence Access Order (DEAO) connected to a warrant, you are not generally obliged to unlock your phone or give up passwords/biometrics. Where a valid DEAO exists, it can lawfully compel you to provide “reasonable and necessary assistance” (including passcodes/biometrics); non-compliance without reasonable excuse is an offence.  Ask to see the order. You are entitled to have a DEAO produced for inspection on request.  8) Extra protections for vulnerable people Aboriginal and Torres Strait Islander peoples: unless you already have a lawyer attending, the custody manager must notify the Aboriginal Legal Service (NSW/ACT) of your detention and location.  Children and other “vulnerable persons” (incl. NESB, disability): the Regulation requires support persons, interpreter arrangements and additional safeguards during interviews.  Interpreter: if you have limited English or a relevant disability, the custody manager must arrange an interpreter before any investigative procedure.  9) Directions in public places (“move-on” powers) Police can give certain directions in public places under LEPRA Part 14; failing to comply (after a proper warning) is an offence (generally attracting a fine). Police must identify themselves, explain the direction and warn you that non-compliance is an offence. There are limits—for example, directions cannot be used simply to shut down an apparently genuine demonstration or protest, subject to the statute’s terms and any current court rulings. Note that on 16 October 2025 the NSW Supreme Court declared s 200(5) invalid, so the landscape is evolving—get advice if this arises.