Rights During Police Questioning in New South Wales
Reviewed by the Commoner Law Editorial Team. Sourced from Commonwealth Acts of Parliament, federal regulations, and official government guidance. State-level information reflects each state's own Acts and court decisions. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards
What is this right?
Part IC of the Crimes Act 1914 (Cth) — sections 23F through 23S — sets out your rights when police question you about a Commonwealth offence. Before any questioning, the investigating official must give you the caution: you don't have to say anything, but anything you do say may be used in evidence.
The right to silence is a common-law right recognised at the highest level — Petty v The Queen (1991) is the case. You cannot be penalised for refusing to answer questions, and silence generally cannot be used against you in court.
Police interviews for Commonwealth offences must be electronically recorded where practicable under s. 23V. If the interview wasn't recorded, the prosecution has to explain why, and the court may refuse to admit the evidence. The recording rule was designed precisely to stop disputes about what was actually said.
One narrow exception: you must give your name and address in defined circumstances — for instance, under customs and border legislation or specific regulatory offences.
When does it apply?
These rights apply whenever AFP officers or other Commonwealth investigators question you about a suspected federal offence.
- The caution must be given whether you are under arrest or simply being questioned in circumstances where you are not free to leave.
- It applies to all people in Australia, including non-citizens.
- Special protections apply to Aboriginal and Torres Strait Islander persons (s 23H), who are entitled to communicate with a legal aid organisation and have an interview friend present.
What to Do If Australian Federal Police Are Questioning You About a Crime
- Listen to the caution carefully — make sure police have given it before questioning starts.
- Say: "I exercise my right to silence and wish to speak to a lawyer."
- Confirm that the interview is being recorded — ask if it is not.
- You may provide your name and address if lawfully required, but you do not need to answer further questions.
- Stay calm and repeat your request for a lawyer if police continue to ask questions.
What should you NOT do?
- Don't feel pressured to fill silences — police may use long pauses to encourage you to talk.
- Don't lie to federal police — providing false or misleading information to a Commonwealth officer is an offence under s 137.1 of the Criminal Code Act 1995.
- Don't agree to an "off the record" chat — there is no such thing in a police investigation.
- Don't answer "just a few questions" without legal advice, even if police say it will help your situation.
How New South Wales differs from federal law
In NSW, the right to silence applies during police questioning. You are generally not required to answer questions beyond providing your name and address when asked by a police officer who suspects you of an offence (LEPRA, s 11).
- Under Part 9 of LEPRA, police must caution you that you do not have to say or do anything, but that anything you do say or do may be used in evidence. This caution must be given before any investigative questioning.
- NSW introduced a pre-trial disclosure requirement under the Evidence Act 1995 (NSW), s 89A, which allows a court to draw an unfavourable inference from a defendant's failure to mention a fact during official questioning that they later rely on at trial — but only for serious indictable offences and only if the person had access to a lawyer.
- Police interviews in NSW must be electronically recorded (audio or video) for indictable offences (LEPRA, s 112). An unrecorded confession is generally inadmissible.
- The investigation period for detained persons in NSW is 4 hours (LEPRA, s 115), which can be extended by a magistrate for up to an additional 8 hours in certain circumstances.
Additional Steps in New South Wales
If questioned, clearly state: "I wish to exercise my right to silence and I want to speak to a lawyer." Contact Legal Aid NSW or your own solicitor. If police exceed the investigation period, raise this with your lawyer immediately.
Relevant Law: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9, ss 111-115; Evidence Act 1995 (NSW), ss 89, 89A
Common Questions
When does rights during police questioning apply?
These rights apply whenever AFP officers or other Commonwealth investigators question you about a suspected federal offence.The caution must be given whether you are under arrest or simply being questioned in circumstances where you are not free to leave.It applies to all people in Australia, including non-citizens.Special protections apply to Aboriginal and Torres Strait Islander persons (s 23H), who are entitled to communicate with a legal aid organisation and have an interview friend present.
What should I do if the Australian Federal Police want to question me about a federal offence?
Listen to the caution carefully — make sure police have given it before questioning starts.Say: "I exercise my right to silence and wish to speak to a lawyer."Confirm that the interview is being recorded — ask if it is not.You may provide your name and address if lawfully required, but you do not need to answer further questions.Stay calm and repeat your request for a lawyer if police continue to ask questions.
What mistakes should I avoid with rights during police questioning?
Don't feel pressured to fill silences — police may use long pauses to encourage you to talk.Don't lie to federal police — providing false or misleading information to a Commonwealth officer is an offence under s 137.1 of the Criminal Code Act 1995.Don't agree to an "off the record" chat — there is no such thing in a police investigation.Don't answer "just a few questions" without legal advice, even if police say it will help your situation.
Rights During Police Questioning in other states
Same topic, different jurisdiction. Pick the one that applies to you.