When can police detain you and ask for identification in NSW?
The NSW District Court recently awarded a Sydney man $3,201 for false imprisonment after he was detained by police for four minutes at a Sydney train station. (For more information about police powers and citizens’ rights in NSW, please see our earlier article: “I was approached by the police. What are my rights in New South Wales?”)
Police detain disability pensioner on suspicion of stolen transport and concession cards
Two police officers approached the 24-year-old man and asked him to produce his Opal transport card, his pensioner concession card and photo identification.
The officers told the court that the man was “evasive” when asked to hand over his Opal card. Also, when the man produced a concession Opal card and a Commonwealth concession disability support pension card, the police suspected that they were stolen, as the man using them appeared “young and fit”.
Disability pensioner films confrontation and sues the state
The man turned on the video in his phone and filmed one officer calling him a “smart arse” and asking him if he had a problem listening. Police told him that he wasn’t under arrest, but he couldn’t leave until they had verified his identity, and asked to see his driver’s licence.
The man argued that he did not have to produce a driver’s licence as he wasn’t driving. Police conducted a radio check on the man, and after four minutes told him he was free to go. In that time the man had missed a train.
The man, who was on a disability pension, sued the state and won. (See Le v State of New South Wales  NSWDC 38.) The judge said that detaining the man for four minutes amounted to false imprisonment, even though he wasn’t physically detained.
Court rules in favour of detained man
The case hinged on two key questions – first, were the police entitled to demand photo ID? And secondly, did the police honestly suspect, on reasonable grounds, that the man could assist them to investigate the possible theft of his concession card?
The judge ruled that the answer to both of these questions was “no”, determining that while the police might have had an “honest suspicion” that the concession card could have been stolen, this “was based on flimsy material or formed in a process of reasoning which relied on tenuous connections”, rather than reasonable grounds.
Police powers to demand identification
In NSW, the main source of police powers is the Law Enforcement (Powers and Responsibilities) Act 2002. Under section 11 and section 14 of the act, police can require you to produce ID if they honestly suspect, on reasonable grounds, a certain connection with an indictable offence.
For instance, under section 11, there must be reasonable grounds to suspect that the person from whom ID is sought may be able to assist in the investigation of an indictable offence which is alleged to have occurred nearby.
Section 12 makes it an offence to fail or refuse to provide ID when sought, under section 11. The offence carries a maximum penalty of $220.
Additional police powers related to public transport
Police have other specific powers when they are working in the area of public transport. Those powers – along with your rights and obligations as a passenger – are set out in the Passenger Transport Regulation 2007.
Under this regulation, police can require passengers on public transport to produce their Opal and concession cards. The judge determined that where a passenger has complied with that request, the regulation does not allow police to make an additional demand for photo identification.
Court of Appeal overturns District Court decision
Note: Several months after the case described above was heard by the District Court, the decision was overturned on appeal. For more information please see State of New South Wales v Le  NSWCA 290.