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.