News · Criminal law explainer
Arrest powers and your rights in NSW.
Being arrested is frightening, and what a person does in the first hours can shape the whole case. In New South Wales the power of arrest and the safeguards around it are set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), known as LEPRA. This note explains when police can arrest you, what a lawful arrest requires, your right to silence, how long you can be held, and what to do.
By Aaron Kernaghan · Published 3 September 2026
When can police arrest you?
Under section 99 of LEPRA a police officer can arrest a person without a warrant where the officer suspects on reasonable grounds that the person is committing or has committed an offence, and the officer is satisfied the arrest is reasonably necessary for one of the listed reasons. Those reasons include stopping the offence continuing, ensuring the person appears in court, preventing the loss of evidence, and protecting people or property.
Arrest is meant to be a step taken when it is reasonably necessary, not a default. Police can also proceed by way of a court attendance notice without arresting. Where an arrest was not reasonably necessary, its lawfulness can be challenged.
What must a lawful arrest involve?
A lawful arrest generally requires that the person be told they are under arrest and the reason for it. Police must have the reasonable suspicion the section requires at the time. An arrest made without reasonable grounds, or for an improper purpose, may be unlawful.
If an arrest is unlawful, that can matter to the case. Evidence obtained as a result may be open to challenge under the rules about improperly obtained evidence, and an unlawful arrest can also found a separate complaint.
The caution and the right to silence
When police wish to question a person about an offence, they must caution them: that they do not have to say or do anything, but that anything they say or do may be used in evidence. This is the right to silence, and it is one of the most important protections a person has.
A person can decline to answer questions beyond providing their identifying details where required. Exercising the right to silence is not evidence of guilt. What a person says in a recorded interview can be very hard to undo, so the safe course is to say nothing about the allegation until you have advice.
How long can you be held?
After arrest, police can detain a person for a reasonable time to investigate, subject to limits set by LEPRA. There is a maximum investigation period, which can be extended by a detention warrant, and certain time is not counted, such as time to contact a lawyer or to rest. At the end of that period the person must be released, released on bail, or brought before a court.
A person who is detained has rights during that time, including to communicate with a lawyer and, in many cases, a friend or family member, and to an interpreter if needed. Asking to speak to a lawyer is sensible before any questioning.
What to do if you are arrested
Stay calm and do not resist, because resisting can lead to further charges. Provide your name and address where required. Beyond that, say that you wish to speak to a lawyer and that you do not wish to answer questions until you have. That is your right and it is usually the wisest course.
Do not try to talk your way out of it at the scene or in the interview room. Get advice first. Our note on the first thirty days explains what happens after arrest, and the recorded interview explains why what you say matters so much.
Frequently asked.
When can police arrest me in NSW?
Under section 99 of LEPRA, where an officer suspects on reasonable grounds that you are committing or have committed an offence and is satisfied the arrest is reasonably necessary for a listed reason, such as ensuring you appear in court or preventing loss of evidence.
Do I have to answer police questions?
No. After the caution you have the right to silence. You must provide identifying details where required, but you do not have to answer questions about the allegation. Exercising the right to silence is not evidence of guilt.
What is the caution?
The warning police must give before questioning: that you do not have to say or do anything, but that anything you say or do may be used in evidence. It reflects the right to silence.
How long can police hold me?
For a reasonable time to investigate, subject to a maximum investigation period under LEPRA that can be extended by a detention warrant. Some time, such as time to contact a lawyer, is not counted. You must then be released, bailed, or brought before a court.
What should I do if I am arrested?
Stay calm, do not resist, and provide your name and address where required. Then say you wish to speak to a lawyer and do not want to answer questions until you have. Get advice before any interview.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 3 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.
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