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
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.
21 Power to search persons and seize and detain things without warrant
(cf Crimes Act 1900, ss 357, 357E, Drug Misuse and Trafficking Act 1985, s 37)
(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, request the person:(a) to open his or her mouth, 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 request made by a police officer in accordance with this section and section 201.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.
Division 2 Searches of persons on arrest or while in custody
23 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 24.
23A Ancillary power to search persons
(1) In conducting a search of a person under section 23, a police officer may, if the police officer suspects on reasonable grounds that a thing of a kind referred to in section 23 (1) or (2) is concealed in the person’s mouth or hair, request the person:(a) to open his or her mouth, 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 request made by a police officer in accordance with this section and section 201.Maximum penalty: 5 penalty units.
24 Power to carry out search of person in custody
(cf Cth Act, s 3ZH, common law)
A police officer may search a person who is in lawful custody (whether at a police station or at any other place) and seize and detain anything found on that search.
Division 3 Additional personal search and seizure powers in public places and schools
In this Division:knife includes:
(a) a knife blade, and(b) a razor blade, and(c) any other blade,but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.locker includes any facility for the storage of a student’s personal effects at a school.
26 Power to search for knives and other dangerous implements
(cf Summary Offences Act 1988, s 28A)
(1) A police officer may request a person who is in a public place or a school to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a dangerous implement (other than a laser pointer) in his or her custody.(1A) A police officer may request a person who is in a public place to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a laser pointer in his or her custody.(2) If the person is in a school and is a student at the school, the police officer may also request the person to do either or both of the following:(a) to submit to a search of any bag or other personal effect that is on or with the person,(b) to submit to a search of the person’s locker at the school and an examination of 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 (other than a laser pointer) in his or her custody.(4) In conducting a search of a person under this section, a police officer must, in the case of a search of a student in a school and 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) In conducting a search of a person under this section, a police officer may request the person to produce either or both of the following:(a) anything that the police officer has detected or seen on or with the person during the search and has reasonable grounds to suspect is a dangerous implement,(b) anything detected during the search by an electronic metal detection device that the device indicates is of a metallic nature.(6) (Repealed)
27 Failure to comply with requests relating to search and dangerous implements
A person must not, without reasonable excuse:(a) fail or refuse to produce anything detected or seen on or with the person in such a search when requested to do so by a police officer in accordance with sections 26 and 201, or(b) fail or refuse to comply with a request made by a police officer in accordance with sections 26 and 201 for the person to submit to a search.Maximum penalty: 50 penalty units.
28 Power to confiscate knives or other dangerous implements
(cf Summary Offences Act 1988, s 28B)
(1) A police officer may, in a public place or school:(a) take possession of anything that the police officer has reasonable grounds to suspect is a dangerous implement that is unlawfully in a person’s custody, and(b) confiscate the thing.(2) Any such confiscated thing is to be dealt with in accordance with Division 1 of Part 17.(3) The power conferred by subsection (1) may be exercised whether or not the police officer requests the person to produce the thing under section 26.
Division 4 Provisions relating generally to personal searches
This Division applies to any search of a person carried out, or authorised to be carried out, by a police officer or other person under this Act (other than an internal search under Division 3 of Part 11), except as otherwise provided by this Act or the regulations.
30 Frisk searches and ordinary searches
(1) A police officer or other person who is authorised to search a person may carry out a frisk search or an ordinary search of the person for any purpose for which the search may be conducted.(2) In conducting a frisk search, a police officer or other person may, if the police officer or other person has asked the person to remove a coat or jacket, treat the person’s outer clothing as being the person’s outer clothes after the coat or jacket has been removed.
(cf common law)
A police officer or other person who is authorised to search a person may conduct a strip search of the person if the police officer or other person suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out.
32 Preservation of privacy and dignity during search
(1) A police officer or other person who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.(2) The police officer or other person 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 or other person must ask for the person’s co-operation.(4) The police officer or other person 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 or other person must conduct the least invasive kind of search practicable in the circumstances.(6) The police officer or other person 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 or person 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 or other person of the same sex as the person searched or by a person of the same sex under the direction of the police officer or other person concerned.(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.(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 or other person 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).
transgender person means a person, whether or not the person is a recognised transgender person:
(a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex, or(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,and includes a reference to the person being thought of as a transgender person, whether or not the person is, or was, in fact a transgender person.
33 Rules for conduct of strip searches
(cf Cth Act, s 3ZI)
(1) A police officer or other person 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.(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, unless it is not reasonably practicable in the circumstances, be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the child or person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.(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.
Division 5 Vehicle stop, entry, search and roadblock powers
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
(cf Crimes Act 1900, ss 357, 357E, Police Powers (Vehicles) Act 1998, s 10, Drug Misuse and Trafficking Act 1985, s 37)
(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.
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
(cf Police Powers (Vehicles) Act 1998, s 10)
(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
(cf Police Powers (Vehicles) Act 1998, s 10)
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
(cf Police Powers (Vehicles) Act 1998, s 10)
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
(cf Police Powers (Vehicles) Act 1998, s 11)
(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
(cf Police Powers (Vehicles) Act 1998, s 12)
(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.
(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
(cf Drug Misuse and Trafficking Act 1985, s 37)
(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.