What are police powers?
Police have powers that enable them to keep the peace, prevent crime and protect property from criminal damage. These powers are greater than the powers of an ordinary citizen and include the power to arrest and detain people, obtain information, carry out searches, seize things and obtain identifying information such as DNA. It is important to understand what your legal rights and obligations are in these circumstances.
This page provides information about the general powers that police in Western Australia have to obtain information by questioning. There are other web pages that deal with the power to arrest and detain, the power to search and the power to obtain identifying information, such as DNA. These are referred to under the heading Where can I get more information? at the end of this page.
If you need information about the exercise of any powers to question that are not referred to here, or you want to know whether police have exercised their search powers appropriately in a particular situation, you should get legal advice.
What must police do if they arrest me?
As soon as possible after you are arrested, the officer in charge of the investigation must tell you what your rights are. Your rights are different depending on whether you have been arrested as a suspect or not.
In every case when you are arrested by police you have the right to:
any necessary medical treatment
a reasonable amount of privacy from the mass media
a reasonable chance to communicate with or try to communicate with a relative or friend to tell them where you are, and
assistance from an interpreter or other qualified person if you are unable to understand or communicate well enough in spoken English.
If you are arrested as a suspect, you have the right to:
be told what offence you have been arrested for and any other offences police suspect you have committed
be given a reasonable chance to communicate with or try to communicate with a lawyer
if an interpreter is needed, wait for the interpreter to be available before police interview you, and
be cautioned before you are interviewed as a suspect.
The police can refuse to let you contact a person if they reasonably suspect the contact will mean an accomplice will get away from police, evidence will be destroyed or hidden or someone will be put in danger.
If you are a young person (less than 18 years old), before you are asked any questions about an offence, the police must make sure that a responsible adult has been told that you will be questioned.
Do I have to answer police questions?
Generally, the police have the right to ask you questions at any time, whether or not you have been arrested, although you cannot be questioned about any offence while you are being searched.
The police are not allowed to threaten you to make you answer questions or offer you any bribe or inducement to encourage you to answer questions. For example, they are not allowed to say they will grant you bail and release you if you answer their questions.
Although police are allowed to ask you questions, this does not mean you always have to answer them. In Western Australia there is a general right to silence, which means in many cases you do not have to answer questions from police. To protect this right, police must caution you before interviewing you as a suspect so that you are aware of your right to silence and so you know what will happen if you do speak to them.
The caution should sound something like this:
“You are not obliged to say anything unless you wish to do so, but whatever you do say will be recorded and may later be given in evidence”.
If you do not want to answer any questions, you can tell the police this at the start of the interview. They may still ask you questions but you can repeat that you do not want to answer any questions. Generally, it is best that you choose to either answer all questions or none of them.
Despite this, there are some important exceptions to the right to silence, when the law says you must answer questions or provide information to police. The police should make it clear to you when you must provide an answer. In this case you can choose to answer just those questions that you have to answer and no others.
Circumstances when you must answer police questions
The following are some common circumstances when you must answer questions or provide information to police.
Name, address and date of birth
If the police do not know who you are and they reasonably suspect you:
have committed, are committing or are about to commit an offence, or
may be able to assist in the investigation of an offence or suspected offence,
they can require you to provide your personal details. Personal details are your name, your current address or address where you usually live and your date of birth.
If the police reasonably suspect that you have given false personal details, they can request you to produce evidence to show that the details are correct.
If, without a reasonable excuse, you fail to provide your personal details or fail to provide evidence to show that your personal details are correct, you are committing an offence.
If you provide details that are false, you are committing an offence.
If the police pull you over when you are driving, you must do the following if asked to:
stop the vehicle
give your name and address
give the name and address of the person responsible for the vehicle
show your driver’s licence or, if you don’t have it on you, take it to a police station within a reasonable time
take a breath test, provide a sample of blood or oral fluid or participate in a driver assessment.
If you are in an accident and a person is injured or property is damaged to a value of more than $3000, you must report the accident to the officer in charge of a police station.
If police ask you about the manufacture, sale or supply of illegal drugs and plants, you must answer their questions.
If, without a reasonable excuse, you do not answer these questions when required, or you give false or misleading information, you are committing an offence.
You must also answer their questions if they ask you about property that is connected to the manufacture, sale or supply of prohibited drugs and plants. If you do not answer these questions you are committing an offence.
If a customs officer questions you about the import or export of goods, you must answer their questions. This might occur before you board a ship or aircraft, while you are on board or after you have disembarked. It is an offence to fail to answer the questions.
You are also required to provide your name and address and certain other information if requested by a customs officer, in a range of circumstances, for example when under arrest, when a search warrant is being executed and they believe you can assist with the execution of it, where you are found in a restricted area or where you are claiming a package.
If you are on licensed premises where alcohol is served, police officers and hotel staff have the right to ask you for proof of your age.
You must answer any question and provide any information requested where the police are investigating a prostitution offence involving a child or an offence of inducing someone to act as a prostitute.
This information sheet does not cover every situation when you must answer police questions.
In case you find yourself in a situation not covered here, and the police tell you that you must answer their questions, you may ask police whether the law says that you have to answer. If they tell you that the law does require you to answer, you should answer these questions. Make a note of the law they say they are relying on for future reference, in case you need to challenge this.
At the same time, police will often want to ask you other questions, that you are not required by law to answer and where you can exercise your right to silence. Before you start the interview, you should decide whether you are going to answer all questions or whether you will only answer those questions that you are required by law to answer.
If you decide to only answer those questions that you have to answer by law, you should tell police this at the start of the interview. You should ask them to tell you when they are not asking a question that you have to answer, so you can maintain your right to silence in relation to those questions.
If you are later in any doubt about the questions you were asked and whether you were required by law to answer them, you should get legal advice. You should do this as soon as possible after your interview.
What happens if I answer police questions?
Anything you say to police or provide to them in writing may be used against you in court. For this reason, you should always try to get legal advice before you speak to police or provide them with any written information.
Information you provide may be recorded in the form of a video or audio tape, a written record of interview, a written statement or notes of verbal comments made by you before or after you are formally interviewed.
Videotaped, audiotaped or written records of interview
Police will usually carry out a formal interview with you if they have arrested you as a suspect.
Most interviews with police are videotaped, however, sometimes an interview is audiotaped or recorded in writing. If you are under arrest for a serious charge, the police should videotape your interview.
If your interview is written down instead of taped, you do not have to sign it but if you do, you should read the document very carefully and correct any mistakes. You should ask for a copy of it whether you sign it or not.
If you are under arrest as a suspect, the police must caution you before conducting an interview with you. This means they must explain that you have a right to remain silent and that if you do speak, what you say will be recorded and may be used against you in court.
The video or audio tape may be played in court, or the written record may be read out in court and what you have said in the interview may be used as evidence against you.
If you are charged, the police must make a copy of the interview available to you.
It is an offence to copy or broadcast a videotaped record of interview.
If you give police a written statement explaining your version of events, this may be used against you in court. You should get legal advice before providing a statement to police.
Things you say to police other than as part of a formal interview may also be used in evidence against you in court. You should get legal advice if you have said something to police and you want to know if it can be used against you.
Can I complain about the conduct of police?
Yes, if you feel that the police have not behaved properly towards you or have abused their powers, you can make a complaint about them.
If you have been charged with an offence and you are facing court, you should get legal advice before making a complaint.
For more information on how to make a complaint, see Complaints about the police.
Where can I get more information?
See the following web pages under Information about the law on the Legal Aid WA website:
See the following information sheets, available from any Legal Aid WA office or by contacting the Legal Aid WA InfoLine on 1300 650 579:
Contact the Legal Aid WA InfoLine on 1300 650 579 for information and referral.
Last reviewed: 12/06/2013