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Contents (2002 - 103)
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Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 6 December 2019 to date (accessed 21 January 2020 at 08:49)
Part 4 Division 4
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.