M1 - Learner Manual

There are no special provisions in the Crimes Act 1914 (NSW) or Evidence Act 1995 (NSW) requiring Aboriginal people under arrest to be treated any differently when being interrogated by police. NSW police powers to arrest, detain, search and issue directions are generally the same for Aboriginal people as they are for non- Aboriginal people (Crimes Act 1900 (NSW), Pts 10, 10A and 10B). However, each State and Territory has related legislation in this regard. In NSW, Law Enforcement (Power and Responsibilities) Act2002 (NSW) (LEPRA) contains specific limitations on police powers to arrest, detain, search or issue directions. 

Some of the limitations in relation to Aboriginal people are: 

1. An Aboriginal person who has been arrested can be detained for questioning for up to two hours. This may be extended to eight hours, with a magistrate’s approval, if the offence being investigated is punishable by imprisonment for more than 12 months.
2. The investigating police must notify an Aboriginal legal aid organisation when an Aboriginal person is arrested. The person is entitled to have a legal practitioner present to give advice during questioning. 
3. If the person is arrested more than once in 48 hours, the investigation period for each arrest is reduced by the period of the previous investigations. 
4. At the end of the investigation period the person under arrest must be released, either unconditionally or on bail, or brought before a magistrate as soon as practicable. 
5. A person who has not been arrested may not be detained against their will. 
6. The person being investigated must be cautioned, in a language in which they can communicate with “reasonable fluency”, that they do not have to say anything during questioning. In some circumstances an interpreter is needed. The person must be told of their right to communicate with a friend, relative or lawyer, and be allowed to do so. If practicable, the caution should be recorded. 
7. An Aboriginal person under arrest is entitled to have a friend or support person present during questioning

Prior to arrest, police officers have the power to demand the name and address of any person: 

in relation to certain motor traffic and drug offences

where the police hold a reasonable suspicion that the person: 

was a witness to a crime 

has stolen goods in their car 

has a dangerous implement, or 

possesses or is consuming alcohol in a public place.