Division 4Division 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.