SUMMARY OFFENCES ACT 1953 - SECT 81

SUMMARY OFFENCES ACT 1953 - SECT 81

81—Power to search, examine and take particulars of persons

        (1)         A person who is taken into lawful custody may be searched in accordance with this section and anything found as a result of the search may be removed.

        (2)         The following provisions apply to a search under this section:

            (a)         the search may only be carried out by a police officer or a medical practitioner or registered nurse acting at the request of a police officer, but an intrusive search may only be carried out by such a medical practitioner or registered nurse;

            (b)         the person carrying out the search may use such force as is reasonably necessary for the purpose and may be assisted by a police officer or other person;

            (c)         where a medical practitioner or registered nurse is to carry out an intrusive search, the detainee must be allowed a reasonable opportunity to arrange for the attendance, at the detainee's expense, of a medical practitioner or registered nurse of his or her choice to witness the search.

        (3)         The following further provisions apply to an intimate search:

            (a)         if an intimate search is to be carried out on a detainee who is a minor, the search must not be carried out unless a solicitor or adult relative or friend, nominated by the minor, is present (but this paragraph need not be complied with if, in the opinion of a police officer, it is not reasonably practicable to do so in view of the urgency of the search);

            (b)         if an intimate search is to be carried out on a detainee whose native language is not English and who is not reasonably fluent in English, the detainee must be informed that he or she may request the assistance of an interpreter;

            (c)         if a detainee requests the assistance of an interpreter under paragraph (b), the search must not be carried out unless an interpreter is present (but paragraph (b) and this paragraph need not be complied with if, in the opinion of a police officer, it is not reasonably practicable to do so in view of the urgency of the search);

            (d)         except where it is not reasonably practicable to do so, an intimate search must be carried out by a person of the same sex or gender identity as the detainee (unless the detainee requests otherwise);

            (e)         except where it is not reasonably practicable to do so, an audio visual record of an intimate search must be made (but that part of an intimate search that consists of an intimate intrusive search will not be recorded if the detainee objects);

            (f)         if, apart from the question of whether or not the detainee objects to the recording, it is otherwise reasonably practicable to make an audio visual record of an intimate search, the police officer supervising the search must, before the search is carried out—

                  (i)         give the detainee a written statement in a form approved by the Minister outlining—

                        (A)         the value of making an audio visual record of the search; and

                        (B)         that the detainee may object to the search being so recorded; and

                        (C)         where relevant, that if the detainee objects to an intimate intrusive search being recorded, the intimate intrusive search will not be recorded; and

                  (ii)         read the statement to the detainee (with the assistance of an interpreter if one is to be present during the search);

            (g)         if an audio visual record of an intimate search, or that part of an intimate search that consists of an intimate intrusive search, is not to be made, the police officer must ensure—

                  (i)         that a written record of the search is made at the time of or as soon as practicable after the search, documenting all items found on the detainee and everything said and done by all persons present; and

                  (ii)         that, as soon as practicable after the search, the record is read aloud to the detainee and an audio visual record of the reading is made; and

                  (iii)         that, when the audio visual recording begins (but before the reading begins) the detainee is invited to interrupt the reading at any time to point out errors or omissions in the record; and

                  (iv)         that, if the detainee in fact interrupts the reading to point out an error or omission, the detainee is then allowed a reasonable opportunity to do so; and

                  (v)         that, at the end of the reading, but while the audio visual recording continues, the detainee is again invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and

                  (vi)         that, if the police officer agrees that there is an error or omission in the record, the officer amends the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer nevertheless makes a note of the error or omission asserted by the detainee in an addendum to the record.

        (3a)         In deciding whether it is reasonably practicable to make an audio visual record under this section, the following matters must be considered:

            (a)         the availability of recording equipment within the period for which it would be lawful to detain the detainee;

            (b)         mechanical failure of recording equipment;

            (c)         any objections made to the recording by the detainee;

            (d)         any other relevant matter.

        (3b)         If an audio visual record is made under this section, the police officer must, as soon as is reasonably practicable, give the detainee a written statement of his or her right—

            (a)         to have the audio visual record played over to the detainee or his or her legal adviser (or both); and

            (b)         to obtain a copy of the audio visual record.

        (3c)         Arrangements must be made, at the request of a detainee, for the playing of an audio visual record at a reasonable time and place to be nominated by the police officer.

        (3d)         A detainee must be provided, on request and on payment of the fee fixed by regulation, with a copy of an audio visual record made under this section.

        (3e)         A person (other than the detainee) must not play, or cause to be played, an audio visual record made under this section except—

            (a)         for purposes related to the investigation of an offence or alleged misconduct to which the person reasonably believes the recording may be relevant; or

            (b)         for the purposes of, or purposes related to, legal proceedings, or proposed legal proceedings, to which the recording is relevant.

Maximum penalty: $10 000 or imprisonment for 2 years.

        (3f)         An audio visual record made under this section or a written record of an intimate search must be destroyed—

            (a)         if the Commissioner of Police is satisfied that it is not likely to be required for any of the purposes referred to in subsection (3e); or

            (b)         if a court or tribunal so orders.

        (3g)         The Governor may, by regulation, provide for the storage, control, movement or destruction of audio visual records and written records made of intimate searches under this section.

        (4)         Where a person is in lawful custody on a charge of committing an offence, a police officer may, if the officer believes on reasonable grounds that it is necessary to do so for the purpose of identifying that person or identifying that person as the person who committed an offence—

            (a)         take, or cause to be taken, photographs of that person and prints of the hands, fingers, feet or toes of that person, and may use, or cause to be used, such reasonable force as is necessary for that purpose;

            (c)         make a recording of the voice of that person;

            (d)         request that person to supply a sample of his or her handwriting.

        (4a)         A police officer may not exercise a power under subsection (4) for the purpose of identifying a person in lawful custody as the person who committed an offence unless—

            (a)         the person has been charged with the offence; or

            (b)         the police officer is acting upon the authorisation of a magistrate given under this section.

        (4b)         For the purposes of subsection (4a), a police officer may obtain the authorisation of a magistrate upon application made in person or, if it is impracticable to do so in person, upon application made by telephone.

        (4c)         A magistrate to whom application is made under subsection (4b) may give the authorisation if the magistrate thinks it proper to do so in all the circumstances of the case.

        (4d)         Where application is made under subsection (4b) in person, the magistrate must give an authorisation in writing and where application is made under that subsection by telephone, the magistrate must, as soon as is practicable after giving the authorisation, cause a written memorandum of the authorisation to be forwarded to the police officer who made the application.

        (4e)         A person who refuses or fails to comply with the reasonable directions of a person who seeks to obtain a sample of his or her voice or handwriting under subsection (4) is guilty of an offence.

Maximum penalty: $1 250 or imprisonment for 3 months

        (4g)         A procedure under this section—

            (a)         must be carried out humanely and with care—

                  (i)         to avoid, as far as reasonably practicable, offending genuinely held cultural values or religious beliefs; and

                  (ii)         to avoid inflicting unnecessary physical harm, humiliation or embarrassment; and

            (b)         must not be carried out in the presence or view of more persons than are necessary for properly carrying out the procedure and satisfying any relevant statutory requirements.

        (5)         The powers given by this section are in addition to, and do not derogate from, any other powers of police officers.

        (5a)         No civil or criminal liability is incurred by a person who carries out, or assists in carrying out, a procedure under this section for an act or omission if—

            (a)         the person genuinely believes that the procedure is authorised under this section; and

            (b)         the act or omission is reasonable in the circumstances.

        (6)         In this section—

"intimate intrusive search" means an intrusive search of the rectum or vagina;

"intimate search" means a search of the body that involves exposure of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts, and includes an intimate intrusive search;

"intrusive search" means an internal search involving the introduction of anything into a bodily orifice;

"medical practitioner" means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

"registered nurse" means a person registered under the Health Practitioner Regulation National Law —

            (a)         to practise in the nursing profession as a nurse (other than as a student); and

            (b)         in the registered nurses division of that profession.