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Commonwealth search powers

Information about the powers of the commonwealth police to search.

Powers to search are found in several Acts

Various other Commonwealth Acts empower police to conduct searches without a warrant. For example, the Customs Act 1901 permits searches where there is a suspicion that an illegal substance is being brought into the country (See links below).

Search without a warrant in emergency situations

The Crimes Act 1914 gives police the power to stop, detain and search a vehicle, vessel or aircraft if police officer has reasonable grounds to suspect that:

  • something relevant to an indictable offence is present
  • search is necessary to prevent loss, concealment or destruction of the item
  • circumstances are so serious and urgent that can't wait to get warrant for the search.

See s. 3T—Crimes Act 1914 (Cth) (link below)

Force must be reasonable and no force is preferable

Police may use reasonable force when they are conducting a search. They must not cause damage to property when searching. For example police must give a person, whose property is being searched, the chance to open the containers so that the contents can be searched. They don't have to allow a person to open containers if this is not reasonable. Property could include a boat, vehicle or aircraft.

See s. 3U—Crimes Act 1914 (Cth) (link below)

Searching premises

Without a warrant

Police can arrest person without a warrant if they have reasonable grounds to believe that the person has committed (or is committing) an indictable offence and it's not practical to proceed by issuing a summons because:

  • there is a danger that person would not appear in court
  • of a need to protect evidence from being hidden or destroyed
  • need to prevent evidence being fabricated.

Under these circumstances police may search premises if they have reasonable belief that person is there. Police can use reasonable force if necessary to search for or arrest that person.

See s. 3T—Crimes Act 1914 (Cth) (link below)

With a warrant

Police can search premises if they have a valid warrant to arrest an offender and they have reasonable grounds to believe that the person is there.

See s. 3ZB—Crimes Act 1914 (Cth) (link below)

Who has power to issue a warrant?

Search warrants can be issued by a magistrate, justice of the peace or person with court authority.

See s. 3C—Crimes Act 1914 (Cth) (link below)

When may a warrant be issued?

A warrant can be issued if the issuing officer is satisfied by the information that has been given under oath, that there are reasonable grounds to suspect that there is some evidentiary material on premises (or exist be within next 72 hours or 3 days).

See s. 3E(2)—Crimes Act 1914 (Cth) (link below)

Police may also search a person

If police believe the person to be searched may be carrying evidence, the search warrant may also authorise an ordinary or frisk search of that person.

See s. 3F(1)(f)—Crimes Act 1914 (Cth) (link below)

If police believe that it may be necessary to use firearms

If there is a belief that it will be necessary to use firearms, ground for this must be stated in warrant application.

See s. 3E(3)—Crimes Act 1914 (Cth) (link below)

Information that must be included in a search warrant

A valid search warrant must include the following information:

  • the offence that is suspected
  • a description of the premises (for example, an address)
  • the name of the person sought
  • the sort of evidence is sought
  • the name of police member who is to execute the warrant
  • the time that the warrant expires
  • any time restrictions on executing warrant
  • whether warrant also authorises any personal search
  • if something other than evidentiary material is to be seized, this must be mentioned in the warrant.

See s. 3E(5)—Crimes Act 1914 (Cth) (link below)

What a search warrant authorises

A valid warrant to search premises enables a police officer to:

  • enter premises
  • search for fingerprints
  • sample items found on premises for forensic purposes
  • search for evidence that is specified in the warrant and seize that evidence
  • seize other things found on premises if police reasonably believe it to be:
    • evidence related to the offence for which the warrant was issued
    • evidence related to another indictable offence
    • tainted property or the proceeds of a crime.

See s. 3F—Crimes Act 1914 (Cth) (link below)

Terrorism suspects

The Criminal code includes search powers that are related to people who are suspected of terrorist offences.

See ss. 105.23, 105.24—Criminal Code Act 1995 (Cth) (link below)

More information

Legislation

Crimes Act 1914 (Cth)

  • s. 3—conveyance is described as an aircraft, vehicle or vessel
  • Part 1AA—search, information gathering, arrest and related powers
  • s. 3C—defines issuing officer
  • s. 3E—when search warrants can be issued
  • s. 3F(1)(b)—search warrant for premises authorises police to search for fingerprints and record any prints found
  • s. 3Q—receipts for things seized under warrant
  • s. 3T—searches without warrant in emergency situations
  • s. 3U—search of conveyances where police have no warrant if serious and urgent circumstances prevail
  • s. 3W—power to arrest without a warrant
  • s. 3ZB—power to enter premises to arrest an offender
  • s. 3ZB(2)—search premises without a warrant
  • s. 3ZG—power to conduct search of arrested person’s premises

See Crimes Act 1914 (Cth).

Customs Act 1901 (Cth)

  • Pt. 12 Div 1B—detention and search of suspects
  • s. 219L—detention for frisk search
  • s. 219M—frisk search
  • s. 219N—power to require production of things
  • s. 219Q—detention for external search
  • s. 219R—external search
  • ss. 219RAB–219RAD—use of prescribed equipment for external search
  • s. 219RA—detention of person for internal search
  • s. 219Z—internal search
  • s. 219ZF—how and by whom an internal search is to be conducted

See Customs Act 1901 (Cth).

Criminal Code Act 1995 (Cth)

  • s. 105.23—power to conduct a frisk search under the preventative detention orders powers
  • s. 105.24—ordinary search powers where a terrorist act is suspected

See Criminal Code Act 1995 (Cth).

Proceeds of Crime Act 2002 (Cth)

  • Part 3–5—search and seizure
  • s. 338—dictionary, defines an authorised officer, indictable offence, ordinary search, search warrant, strip search

See Proceeds of Crime Act 2002 (Cth).

Updated