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Contents (2002 - 103)
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Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 23 March 2020 to date (accessed 5 April 2020 at 15:40)
Part 4
Part 4 Search and seizure powers without warrant
Note.
 Safeguards relating to the exercise of powers under this Part are set out in Part 15.
Division 1 General personal search and seizure powers
20   Relevant offences
The following offences are relevant offences for the purposes of this Division—
(a)  indictable offences,
(b)  an offence against section 93FB of the Crimes Act 1900,
(c)  an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts,
(d)  an offence against a provision of Part 2 of the Explosives Act 2003.
21   Power to search persons and seize and detain things without warrant
(1)  A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists—
(a)  the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b)  the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
(c)  the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
(d)  the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
(2)  A police officer may seize and detain—
(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c)  any dangerous article, and
(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
21A   Ancillary power to search persons
(1)  In conducting a search of a person under section 21, a police officer may, if the police officer suspects on reasonable grounds that a thing referred to in section 21(1)(a), (b), (c) or (d) is concealed in the person’s mouth or hair, require the person—
(a)  to open his or her mouth to enable it to be searched, or
(b)  to shake, or otherwise move, his or her hair.
(2)  Subsection (1) does not authorise a police officer to forcibly open a person’s mouth.
(3)  A person must not, without reasonable excuse, fail or refuse to comply with a requirement made by a police officer in accordance with this section.
Maximum penalty—5 penalty units.
22   Power to seize and detain dangerous articles on premises
(cf Crimes Act 1900, s 357)
A police officer who is lawfully on any premises may seize and detain any dangerous article that the police officer finds on the premises, if the police officer suspects on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence.
Note.
 Premises include vessels, vehicles, aircraft and other places.
23   Power to search persons for dangerous implements without warrant in public places and schools
(1)  A police officer may, without a warrant, stop, search and detain a person who is in a public place or a school, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that the person has a dangerous implement unlawfully in the person’s possession or under the person’s control.
(2)  To avoid doubt, if the person is in a school and is a student at the school, the police officer may also search the person’s locker at the school and examine any bag or other personal effect that is inside the locker.
(3)  For the purposes of this section, the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds to suspect that the person has a dangerous implement in the person’s possession or under the person’s control.
(4)  In conducting a search of a student in a school under this section, a police officer must, if reasonably possible to do so, allow the student to nominate an adult who is on the school premises to be present during the search.
(5)  A police officer may seize and detain anything found as a result of a search under this section that the police officer has reasonable grounds to suspect is a dangerous implement that is unlawfully in the person’s possession or under the person’s control.
(6)  For the purposes of this section—
(a)  locker includes any facility for the storage of a student’s personal effects, and
(b)  anything inside a person’s locker is taken to be under the control of the person.
Division 2
23A–26  (Repealed)
Division 3 Searches of persons on arrest or while in custody
27   Power to carry out search on arrest
(cf Cth Act, s 3ZE, common law)
(1)  A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything—
(a)  that would present a danger to a person, or
(b)  that could be used to assist a person to escape from lawful custody, or
(c)  that is a thing with respect to which an offence has been committed, or
(d)  that is a thing that will provide evidence of the commission of an offence, or
(e)  that was used, or is intended to be used, in or in connection with the commission of an offence.
(2)  A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything—
(a)  that would present a danger to a person, or
(b)  that could be used to assist a person to escape from lawful custody.
(3)  A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2).
(4)  Nothing in this section limits section 28A.
28   Ancillary power to search persons
(1)  In conducting a search of a person under section 27, a police officer may, if the police officer suspects on reasonable grounds that a thing of a kind referred to in section 27(1) or (2) is concealed in the person’s mouth or hair, require the person—
(a)  to open his or her mouth to enable it to be searched, or
(b)  to shake, or otherwise move, his or her hair.
(2)  Subsection (1) does not authorise a police officer to forcibly open a person’s mouth.
(3)  A person must not, without reasonable excuse, fail or refuse to comply with a requirement made by a police officer in accordance with this section.
Maximum penalty—5 penalty units.
28A   Power to carry out search of person in lawful custody after arrest
(cf Cth Act, s 3ZH, common law)
(1)  A police officer may search a person who is in lawful custody after arrest and seize and detain anything found on that search.
(2)  Any such search may be carried out at a police station or other place of detention or immediately before or during transportation of the person to or from a police station or other place of detention.
Division 4 Provisions relating generally to personal searches
29   Application of Division
(1)  This Division applies to any search of a person carried out by a police officer under this Act, except as otherwise provided by this Act or the regulations.
(2)  This Division also applies to any search of a person that is carried out by a police officer after obtaining the person’s consent to carry out the search. In that case—
(a)  the purpose of the search is the purpose for which the police officer obtained consent to search, and
(b)  a general consent to the carrying out of a search is not consent to carry out a strip search unless the person consents to the carrying out of a strip search.
30   Searches generally
In conducting the search of a person, a police officer may—
(a)  quickly run his or her hands over the person’s outer clothing, and
(b)  require the person to remove his or her coat or jacket or similar article of clothing and any gloves, shoes, socks and hat (but not, except in the case of a strip search, all of the person’s clothes), and
(c)  examine anything in the possession of the person, and
(d)  pass an electronic metal detection device over or in close proximity to the person’s outer clothing or anything removed from the person, and
(e)  do any other thing authorised by this Act for the purposes of the search.
31   Strip searches
A police officer may carry out a strip search of a person if—
(a)  in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or
(b)  in the case where the search is carried out in any other place—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.
32   Preservation of privacy and dignity during search
(1)  A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.
(2)  The police officer must inform the person to be searched of the following matters—
(a)  whether the person will be required to remove clothing during the search,
(b)  why it is necessary to remove the clothing.
(3)  The police officer must ask for the person’s co-operation.
(4)  The police officer must conduct the search—
(a)  in a way that provides reasonable privacy for the person searched, and
(b)  as quickly as is reasonably practicable.
(5)  The police officer must conduct the least invasive kind of search practicable in the circumstances.
(6)  The police officer must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search.
(7)  A search must be conducted by a police officer of the same sex as the person searched.
(7A)  However, if a police officer of the same sex as the person who is to be searched is not immediately available, a police officer may delegate the power to conduct the search to another person who is—
(a)  of the same sex as the person to be searched, and
(b)  of a class of persons prescribed by the regulations for the purposes of this subsection.
The search by that other person is to be conducted under the direction of the police officer and in accordance with provisions of this Act applying to searches conducted by police officers.
(8)  A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.
(8A)  Subsection (8) does not prevent the asking of questions that only relate to issues of personal safety associated with the search.
(9)  A person must be allowed to dress as soon as a search is finished.
(10)  If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing.
(11)  In this section—
questioning of a person means questioning the person, or carrying out an investigation (in which the person participates).
33   Rules for conduct of strip searches
(cf Cth Act, s 3ZI)
(1)  A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following—
(a)  the strip search must be conducted in a private area,
(b)  the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,
(c)  except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search.
(2)  A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. Subsection (1)(b) does not prevent any such person who is of the opposite sex to the person being searched from being present during the search.
(3)  A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted—
(a)  in the presence of a parent or guardian of the person being searched, or
(b)  if that is not acceptable to the person, in the presence of another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person.
(3A)  Subsection (3) does not apply if a police officer suspects on reasonable grounds that—
(a)  delaying the search is likely to result in evidence being concealed or destroyed, or
(b)  an immediate search is necessary to protect the safety of a person.
In such a case, the police officer must make a record of the reasons for not conducting the search in the presence of a parent or guardian, or other person capable of representing the interests, of the person being searched.
(4)  A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.
(5)  A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(6)  A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(7)  A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present.
(8)  This section is in addition to the other requirements of this Act relating to searches.
(9)  In this section—
impaired intellectual functioning means—
(a)  total or partial loss of a person’s mental functions, or
(b)  a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(c)  a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.
Note.
 Procedures for searches of a more invasive nature are dealt with under the Crimes (Forensic Procedures) Act 2000.
34   No strip searches of children under 10 years
A strip search must not be conducted on a person who is under the age of 10 years.
34A   Searches carried out with consent
(1)  A police officer may search a person with the person’s consent but only if the police officer has sought the person’s consent before carrying out the search.
(2)  A police officer must, before carrying out any such consensual search, provide the person with—
(a)  evidence that the police officer is a police officer (unless the police officer is in uniform), and
(b)  the name of the police officer and his or her place of duty.
Division 5 Vehicle stop, entry, search and roadblock powers
35   Relevant offences
The following offences are relevant offences for the purposes of this Division—
(a)  indictable offences,
(b)  an offence against section 93FB of the Crimes Act 1900,
(c)  an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts.
36   Power to search vehicles and seize things without warrant
(1)  A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exists—
(a)  the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
(b)  the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(c)  the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d)  the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(e)  the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985,
(f)  circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.
(2)  A police officer may, without a warrant, stop, search and detain a class of vehicles on a road, road related area or other public place or school if the police officer suspects on reasonable grounds that any of the following circumstances exist—
(a)  a vehicle of the specified class of vehicles is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence,
(b)  circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.
(3)  A police officer may seize and detain—
(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c)  any dangerous article, and
(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
36A   Power to stop vehicles
A police officer may stop a vehicle if the police officer suspects on reasonable grounds that the driver of, or a passenger in or on, the vehicle is a person in respect of whom the police officer has grounds to exercise a power of arrest or detention or a search power under this Act or any other law.
37   Powers to stop vehicles and erect roadblocks
(1)  For the purposes of this Act, the following are vehicle roadblock powers
(a)  the power to establish a roadblock (consisting of any appropriate form of barrier or obstruction preventing or limiting the passage of vehicles) on any specified road, road related area or other public place or school,
(b)  the power to stop vehicles at a roadblock.
(2)  A senior police officer may authorise another police officer to exercise any or all of the vehicle roadblock powers in respect of any specified vehicle (or class of vehicles) on a road, road related area or other public place or school if the senior police officer suspects on reasonable grounds that—
(a)  the vehicle (or a vehicle of the specified class of vehicles) is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence, or
(b)  circumstances exist on or in the vicinity of that road, road related area, place or school that are likely to give rise to a serious risk to public safety and the exercise of the powers may lessen the risk.
(3)  A police officer may exercise vehicle roadblock powers without obtaining an authorisation by a senior police officer if the police officer suspects on reasonable grounds that it is necessary to exercise the powers and that the seriousness and urgency of the circumstances require the powers to be exercised without obtaining the authorisation.
(4)  A police officer who acts under subsection (3) must notify a senior police officer as soon as practicable and obtain an authorisation for any ongoing action.
38   Power to give reasonable directions
A police officer who exercises a stop, search or detention power under this Division, or who is authorised to exercise a vehicle roadblock power under this Division, has the power to give reasonable directions (to facilitate the exercise of the power) to any person—
(a)  in or on the vehicle concerned, or
(b)  on or in the vicinity of a road, road related area or other public place or school.
39   Failure to comply with directions
A person must not, without reasonable excuse—
(a)  fail or refuse to stop a vehicle the person is driving when directed to do so by a police officer under this Division, or
(b)  fail or refuse to comply with any other direction given by a police officer under this Division.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
40   Duration and form of roadblock authorisation
(1)  A roadblock authorisation may be given either verbally (including by telephone, radio or other communication device) or in writing (including facsimile).
(2)  A roadblock authorisation has effect for a period of 6 hours (or such lesser period as may be specified by the senior police officer giving the authorisation).
(3)  Nothing in this section prevents a senior police officer from giving a further roadblock authorisation in respect of the same vehicle (or class of vehicles) on a road, road related area or other public place or school.
41   Record of roadblock authorisation
(1)  A senior police officer who gives a roadblock authorisation must—
(a)  if the authorisation is in writing—specify the following—
(i)  the date on, and time at, which the authorisation is given,
(ii)  the vehicle roadblock powers conferred by the authorisation and the indictable offence or risk to public safety in respect of which the authorisation is given,
(iii)  the road, road related area or other public place or school in respect of which the authorisation is given,
(iv)  the vehicle (or class of vehicles) in respect of which the authorisation is given,
(v)  the period of the authorisation if the period is less than 6 hours, or
(b)  if the authorisation is given verbally—make a record as soon as is reasonably practicable after the giving of the authorisation of the matters referred to in paragraph (a).
(2)  A failure to comply with subsection (1) does not invalidate a roadblock authorisation.
Division 6 Vessel and aircraft entry and search powers
42   Power to search vessels and aircraft and seize things without warrant
(cf Crimes Act 1900, ss 357, 357D, 357E)
(1)  A police officer may, without a warrant, stop, search and detain a vessel or an aircraft if the police officer suspects on reasonable grounds that any of the following circumstances exists—
(a)  the vessel or aircraft contains, or a person in the vessel or aircraft has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
(b)  the vessel or aircraft is being or was used in or in connection with the commission of a relevant offence,
(c)  the vessel or aircraft contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d)  the vessel or aircraft is in a public place and contains a dangerous article that is being or was used in or in connection with the commission of a relevant offence.
(2)  A police officer may seize and detain—
(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c)  any dangerous article, and
(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
(3)  The following offences are relevant offences for the purposes of this section—
(a)  indictable offences,
(b)  an offence against section 93FB of the Crimes Act 1900,
(c)  an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts.
43   Power to board vessels
(cf Crimes Act 1900, s 357C)
(1)  A police officer authorised by this section may, without a warrant, with as many other police officers as he or she thinks necessary, take the actions set out in subsection (2) if the police officer suspects on reasonable grounds that it is necessary to do so—
(a)  to prevent, on a vessel, injury to people or damage to property by fire or otherwise, or
(b)  to preserve peace and good order on a vessel, or
(c)  to prevent, detect or investigate any offence that may be, or may have been, committed on a vessel.
(2)  The police officer may take any one or more of the following actions—
(a)  enter into any part of any vessel,
(b)  search and inspect the vessel,
(c)  take all necessary measures for preventing, on the vessel, injury to persons or damage to property by fire or otherwise,
(d)  take all necessary measures for preserving peace and good order on the vessel or for preventing, detecting or investigating any offences that may be, or may have been, committed on the vessel.
(3)  The following police officers are authorised by this section—
(a)  a police officer of or above the rank of sergeant,
(b)  a police officer in charge of a police station,
(c)  a police officer in charge of a police vessel.
44   Power to search aircraft for safety reasons
(cf Crimes Act 1900, s 357A)
(1)  An authorised person may, without a warrant, search an aircraft, any person on board or about to board an aircraft, or any luggage or freight on board an aircraft, or about to be placed on board an aircraft, if the person suspects on reasonable grounds that an offence involving the safety of the aircraft is being, or was, or may have been, or may be, committed on board or in relation to the aircraft.
(2)  The following persons are authorised persons for the purposes of this section—
(a)  the commander of the aircraft,
(b)  a person authorised in writing by an authorised officer, on the basis of a suspicion referred to in subsection (1), to carry out a search under this section.
(3)  A search of a person conducted under this section must be conducted by a person of the same sex as the person being searched.
45   Search powers relating to prohibited plants and prohibited drugs
(1)  A police officer authorised by this section may, without a warrant, with as many other police officers as he or she thinks necessary, take the actions set out in subsection (2) if the police officer reasonably suspects that there is in a vessel or aircraft a prohibited plant or prohibited drug that is, in contravention of the Drug Misuse and Trafficking Act 1985, in the possession or under the control of any person.
(2)  The police officer may take the following actions—
(a)  stop and detain the vessel or aircraft,
(b)  enter into any part of the vessel or aircraft,
(c)  search and inspect the vessel or aircraft.
(3)  The following police officers are authorised by this section—
(a)  a police officer of or above the rank of sergeant,
(b)  a police officer in charge of a police station,
(c)  a police officer in charge of a police vessel.
Division 7 Additional search and seizure powers in relation to things used to interfere with business or undertaking
45A   Things to which Division applies
This Division applies to anything that is intended to be used to lock-on or secure a person to any plant, equipment or structure for the purpose of interfering with the conduct of a business or undertaking and that is likely to be used in a manner that will give rise to a serious risk to the safety of any person.
45B   Power to search for and seize things without warrant
(1)  A police officer may, without warrant, stop, search and detain a person, vehicle, vessel or aircraft if the police officer suspects on reasonable grounds that the person has in his or her possession or under his or her control (or that the vehicle, vessel or aircraft contains) anything to which this Division applies.
(2)  A police officer may seize and detain all or part of a thing found as a result of a search under this section that the police officer suspects on reasonable grounds is a thing to which this Division applies.
45C   Forfeiture of things seized
(1)  A thing seized under this Division is forfeited to the Crown.
(2)  The Police Area Commander or Police District Commander (or such other person as that Commander may direct) may destroy or otherwise dispose of a thing so forfeited in accordance with the directions of the Commissioner.
(3)  The proceeds from any sale of a thing disposed of under this section are to be paid to the Treasurer for payment into the Consolidated Fund.
(4)  Part 17 does not apply to a thing seized under this Division and a court does not have jurisdiction on an application under that Part to order the delivery of the thing to the person from whom the thing was lawfully seized or who appears to be lawfully entitled to the thing.