Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 23 March 2020 to date (accessed 6 June 2020 at 00:34)
Part 8
Part 8 Powers relating to arrest
Note.
 
1   
A police officer also has the power, under the Bail Act 2013, to arrest a person who fails to comply with a bail acknowledgment or a bail condition, or who the police officer believes on reasonable grounds is about to do so.
2   
Safeguards relating to arrests by police officers, including the requirement to state the reason for an arrest, are set out in Part 15.
99   Power of police officers to arrest without warrant
(cf Crimes Act 1900, s 352, Cth Act, s 3W)
(1)  A police officer may, without a warrant, arrest a person if—
(a)  the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b)  the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(i)  to stop the person committing or repeating the offence or committing another offence,
(ii)  to stop the person fleeing from a police officer or from the location of the offence,
(iii)  to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv)  to ensure that the person appears before a court in relation to the offence,
(v)  to obtain property in the possession of the person that is connected with the offence,
(vi)  to preserve evidence of the offence or prevent the fabrication of evidence,
(vii)  to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii)  to protect the safety or welfare of any person (including the person arrested),
(ix)  because of the nature and seriousness of the offence.
(2)  A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.
(3)  A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.
Note.
 The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.
(4)  A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
(5)  This section does not authorise a person to be arrested for an offence for which the person has already been tried.
(6)  For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
100   Power of other persons to arrest without warrant
(cf Crimes Act 1900, s 352)
(1)  A person (other than a police officer) may, without a warrant, arrest a person if—
(a)  the person is in the act of committing an offence under any Act or statutory instrument, or
(b)  the person has just committed any such offence, or
(c)  the person has committed a serious indictable offence for which the person has not been tried.
(2)  A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
101   Power to arrest with warrant
(cf common law)
(1)  A police officer acting in accordance with a warrant issued under any Act or law may arrest or deal with the person named in the warrant in accordance with the warrant.
(2)  The police officer may take action whether or not the warrant is in his or her possession.
102   Power to arrest persons who are unlawfully at large
(cf Crimes Act 1900, s 352AA)
(1)  A police officer may, with or without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is a person who is unlawfully at large.
(2)  A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
(3)  The authorised officer may, by warrant, commit the person to a correctional centre, to be kept in custody under the same authority, and subject to the same conditions and with the benefit of the same privileges and entitlements, as would have applied to the person if the person had not been unlawfully at large.
(4)  In this section, a reference to a person unlawfully at large is a reference to a person who is at large (otherwise than because of escaping from lawful custody) at a time when the person is required by law to be in custody in a correctional centre.
Note.
 Inmates of correctional centres who are unlawfully at large may also be arrested under section 39 of the Crimes (Administration of Sentences) Act 1999.
103   Warrant for arrest of person unlawfully at large
(cf Crimes Act 1900, s 352AA)
(1)  A police officer may apply to an authorised officer for a warrant for the arrest of a person if the police officer suspects on reasonable grounds that the person is a person who is unlawfully at large.
(2)  The authorised officer may issue the warrant if satisfied that there are reasonable grounds for doing so.
(3)  The regulations may make provision for or with respect to the form of, and other requirements relating to, a warrant issued under this section.
104   Power to arrest for interstate offences
(cf Crimes Act 1900, s 352A)
(1)  This section applies to an offence (an interstate offence)—
(a)  that is an offence against the law of a State (other than New South Wales) or a Territory, and
(b)  that consists of an act or omission that, if it occurred in New South Wales, would constitute an indictable offence or an offence punishable by imprisonment for 2 years or more.
(2)  A police officer may, at any hour of the day or night and without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an interstate offence.
(3)  A court—
(a)  may discharge the person, or
(b)  may—
(i)  commit the person to custody, or
(ii)  grant bail,
pending the execution under a law of the Commonwealth of a warrant for the person’s arrest or the person’s earlier release from bail, or discharge from custody, under this section.
(4)  Except as provided by this section, a person arrested under this section for an interstate offence has the same rights, and is to be dealt with in the same way, as a person arrested for a similar offence committed in New South Wales. In particular—
(a)  Parts 4, 9, 10 and 15 apply in respect of the person, and
(b)  the Bail Act 2013, and the Justices Act 1902, with all necessary modifications, apply in relation to the granting of bail to the person and in relation to court proceedings under this section.
(5)  If a person has been committed to custody under subsection (3) and a warrant for the person’s arrest is subsequently presented for execution, the person must be delivered in accordance with the terms of the warrant to the custody of the person executing it.
(6)  If a person arrested under this section has been granted bail, and subsequently, but before the person has complied with his or her bail acknowledgment, a warrant for the person’s arrest is executed under a law of the Commonwealth, the person is taken at the time the warrant is executed to be released from that bail and to have complied with any condition or acknowledgment in relation to that bail at that time outstanding, not being a condition or acknowledgment with which the person has by that time failed, without lawful excuse, to comply.
(7)  If a person arrested under this section has been granted bail or is in custody, the person may be released from bail or discharged from custody if a warrant for the person’s arrest is not executed within a reasonable time (not exceeding 7 days) after the arrest.
(8)  In this section—
court means—
(a)  the Court of Criminal Appeal, the Supreme Court, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or
(b)  any other court that, or person who, exercises criminal jurisdiction.
104A   Arrest by commander of aircraft
(1)  The person in command of an aircraft may, on board the aircraft, with such assistance as is necessary, arrest without warrant a person whom he or she finds committing or reasonably suspects of having committed, or of having attempted to commit, an offence on or in relation to, or affecting the use of, an aircraft and that person in command or a person authorised by him or her for the purpose may hold the person so arrested in custody until he or she can be brought before an authorised officer to be dealt with according to law.
(2)  The person in command of an aircraft may, where he or she considers it necessary so to do in order to prevent an offence on or in relation to, or affecting the use of, the aircraft or to avoid danger to the safety of the aircraft or of persons on board the aircraft, with such assistance as he or she thinks necessary—
(a)  place a person who is on board the aircraft under restraint or in custody, or
(b)  if the aircraft is not in the course of a flight, remove a person from the aircraft.
105   Arrest may be discontinued
(1)  A police officer may discontinue an arrest at any time.
(2)  Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances—
(a)  if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,
(b)  if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.
(3)  A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law.
106   Person helping in covert operations not under arrest
(1)  This section applies to covert investigations conducted by a police officer into whether a person other than a person who is in custody following an arrest has been involved in the commission of an offence or suspected offence.
(2)  For the purposes of this Part, if the person in custody following an arrest agrees voluntarily to take part in the covert investigation, the person ceases to be under arrest for the offence.
(3)  However, subsection (2) does not prevent the person from being rearrested for the offence.
107   Part does not affect alternatives to arrest
(1)  Nothing in this Part affects the power of a police officer to commence proceedings for an offence against a person otherwise than by arresting the person.
(2)  Nothing in this Part affects the power of a police officer to issue a warning or a caution or a penalty notice to a person.
108   Part does not affect Young Offenders Act 1997
Nothing in this Part requires a police officer to arrest a person under the age of 18 years if it is more appropriate to deal with the matter under the Young Offenders Act 1997.