6 Jun 2018You are stopped on the street by police. They tell you to turn out your pockets. They demand you use your password or fingerprint to open your phone so they can see who you have been calling. They want to see what you have been doing on social media and view your emails. Are the police officers acting within the law? What are your rights to privacy when questioned by police?
NSW police must have “reasonable grounds” to suspect that you have broken the law
Under NSW law, police can stop you and make such demands, but first they must have reasonable grounds to suspect you have broken the law, for example, by carrying illegal drugs, stolen goods or concealed weapons.
Police power to stop and search a person or vehicle is primarily contained in the NSW Law Enforcement (Powers and Responsibilities) Act 2002. Under Section 21 (2)(b) police can seize and detain anything the officer suspects “on reasonable grounds may provide evidence of the commission of a relevant offence”.
This can include a phone, but the key phrase is “on reasonable grounds”, and that can be a contestable point in law.
Police don’t have to tell you what “reasonable grounds” they have for suspicion
Police can only demand your phone if they believe it was stolen or used in the commission of a crime. They can also demand footage or photos that could be evidence of a serious crime such as assault.
But note – they do not have to tell you, at the time of questioning you, what the “reasonable grounds to suspect” happen to be. The list of “grounds” is very long and not closed; an odour of cannabis when speaking to an occupant of a vehicle through the window is just one example. Carrying multiple phones is another.
Another term is “probable cause”. This term generally means police can’t conduct arbitrary or random searches of you, your phone or your vehicle unless they have a factual basis on which to base their suspicion that an offence has been committed, or is about to be committed. (For further information please see Can Border Force search your mobile phone?)
ANPR and facial recognition technology provide factual background to justify suspicions
These days police usually have a very factual background to justify their suspicions through the use of technology.
A check of a vehicle’s registration and intelligence databases before stopping the vehicle is a long-standing example, now greatly enhanced by technology. (For further information please see our earlier articles Automatic number plate recognition (ANPR) technology not to be underestimated and Rego stickers, ANPR and NSW government revenue – too good an opportunity to miss.)
A more recent addition is facial recognition, which covers licences, passports and photos at a scene, giving an instantaneous match if one exists. An example is a Facebook photo of a person being supplied to police by another person, who claims to have been threatened in a text message by the person in the photo. (For more information please see Clear laws needed for use of facial recognition technology and Crackdown on facial recognition on social media.)
“Reasonable grounds” and “probable cause” notwithstanding, police can ask for your identity, as well as search you and ask for access to your phone if you are in what’s called a “target area”, that is, an area where a police operation is underway.
Taking photos of police or filming them in a public place
There is nothing in the law that gives police power to prevent a person taking photographs or filming them in a public place, as long as it does not interfere with them carrying out their duties.
They do not have the legal power to delete images or recordings, or to order a person to delete images or recordings.
For more information about police powers and citizens’ rights in NSW, please see our articles Police found to have conducted unlawful stop and search and What are police powers to arrest and strip search in NSW?
For information on extraction of data from mobile phones by the police, please see Concerns over police reliance on Cellebrite data extraction technology.
For more information on the powers of the Australian Federal Police to access business computers, please see What do new critical infrastructure laws mean for Australian businesses?
