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Police Searches in Australia

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

In Australia, police can only search your property or your person under certain circumstances. These circumstances include when police have a search warrant or if they have the legal right to conduct a personal search.

There are also other circumstances where police may conduct a personal search or search property without warrant. These include where you have given police permission to conduct the search or when police have a reasonable suspicion that a particular circumstance or fact exists which gives rise to a power for them to conduct a search.

Search warrants in Australia

Search warrants give police in Australia the right to search a person’s premises or property for the purpose of investigating offences. Due to Australia’s federation, search warrants are governed by individual state and territory laws.

Police must comply with the laws with respect to obtaining a search warrant and conducting a search (executing the search warrant). If police do not comply with the legislated rules, the search could be deemed by the court to be invalid and the evidence seized can be prevented from being used to prosecute the offence.

In some Australian jurisdictions, police have the obligation to provide a copy of the search warrant and a receipt for any items seized while executing the warrant. Generally, police do not have a right to question you while they are conducting a search.

More in-depth information about search warrants can be found in our article, Search Warrants in Australia.

Police searches in Australia can only be conducted by police in accordance with the law. Whether the search is under warrant or not, it is important to know your rights.Personal searches in Australia

In addition to conducting a search under a warrant, Australian police have special powers which allow them to search your person in certain circumstances. While conducting the search, police must comply with the relevant laws. In this way, a balance between investigating crimes and maintaining the dignity of the person search is maintained.

Police in Australia’s states and territories can generally conduct three types of searches:

  • A basic search which involves the police officer quickly running their hands over the outer clothing of the person or using a metal detector. This is known in New South Wales as a frisk search;
  • A search which involves the person removing their clothing in a private place, only in the presence of persons of the same gender. These searches are known as full searches in Victoria; and
  • Searches of the internal body cavities. These are forensic procedures conducted by medical professionals, usually under drug legislation.

Regardless of which state or territory, you have the right to ask police the reason for their search. If there is no search warrant giving power to a police officer to conduct a personal search and you disagree that the police officer has a reasonable suspicion to conduct the search, you should consult with a solicitor about your rights.

More information about your rights when it comes to personal searches can be found in our dedicated article, Personal Searches in Australia.

Reporting police misconduct in Australia

Australia takes the conduct of its police very seriously. In all state and territory jurisdictions there are avenues for people to make a complaint about the conduct of law enforcement. This includes reporting instances where police did not follow the correct procedures in conducting their investigations.

In most states and territories, there are three levels of seriousness to police misconduct:

  1. Minor misconduct which relates to general behaviour of police which is unexpected to come from police, or results in a poor customer experience;
  2. Conduct which is disgraceful, reduces public confidence or discredits the police force which is behaviour that is below the standards expected of police by the public. This can include unethical behaviour but not so far as to include corrupt behaviour; and
  3. Serious allegations of misconduct which includes corruption.

Generally, police encourage people to make a complaint directly to police at the first instance. For more serious allegations of misconduct or where you are dissatisfied of the outcome or handling of your complaint, a complaint can be made to an impartial body. This usually is an ombudsman or similar commission with powers to investigate and resolve allegations of police misconduct.

Reporting Police Misconduct in Australia has further information about the process of making a complaint of police misconduct in Australia’s states and territories.

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