Western Australian Numbered Acts Western Australian Numbered Acts[s. 30(2)]
1 . Terms used in this Schedule
In this
Schedule —
“basic search” of a person, means a
search that complies with clause 2;
“frisk search” a person, means to
quickly and methodically run the hands over the outside of the person’s
clothing;
“private parts” of a person, means the
person’s genital area, anal area, buttocks and, in the case of —
(a) a
female; or
(b) a
male undergoing a reassignment procedure, as that term is defined in the
Gender Reassignment Act 2000 section 3,
the person’s
breasts;
“strip search” of a person, means a
search that complies with clause 3.
A police officer
authorised by this Act to do a basic search of a person may do any or all of
the following —
(a) scan
the person with an electronic or mechanical device, whether hand held or not,
to detect any thing;
(b)
remove the person’s headwear, gloves, footwear or outer clothing (such
as a coat or jacket), but not his or her inner clothing or underwear, in order
to facilitate a frisk search;
(c)
frisk search the person;
(d)
search any article removed under paragraph (b).
(1) A police officer
authorised by this Act to do a strip search of a person may do any or all of
the following —
(a)
remove any article that the person is wearing including any article covering
his or her private parts;
(b)
search any article removed under paragraph (a);
(c)
search the person’s external parts, including his or her private parts.
(2) A police officer
authorised by this Act to do a strip search of a person is not entitled to
search any of the person’s bodily cavities.
4 . Ascertaining gender of person
If it is necessary to
ascertain the gender of a person before exercising a power in this Act on the
person and the gender of the person is uncertain to the officer authorised to
exercise the power —
(a) the
officer must ask the person to indicate whether a male or a female should
exercise the power on the person and must act in accordance with the answer;
and
(b) in
the absence of an answer, the person must be treated as if of the gender that
the person outwardly appears to the officer to be.
5 . Powers to assist doing searches
A police officer
authorised by this Act to do a basic search or a strip search of a person may
do any or all of the following —
(a) stop
and detain the person for a reasonable period;
(b)
search any thing being carried by or under the immediate control of the
person;
(c)
order the person to remove any thing that might injure the searcher when doing
the search from any article that the person is wearing;
(d)
order the person to do anything reasonable to facilitate the search;
(e) in
the case of a strip search, order the person to accompany the searcher to a
place where the search can be done in accordance with clause 7(4).
Division 2 — How searches must be done
6 . Operation of this Division
A police officer must
comply with this Division unless, due to the urgency of the situation or other
circumstances, it is not reasonably practicable to do so.
(1) This clause
operates if a police officer (the “searcher” ) is authorised by
this Act to do a basic search or a strip search on a person.
(2) Before the
searcher does a basic search or a strip search on the person the searcher must
—
(a)
request the person to consent to the search; and
(b) if
the person does not consent to the search or withdraws his or her consent,
inform the person that it is an offence to obstruct the searcher doing the
search.
(3) If a basic search
or a strip search is done on a person —
(a) it
must be done as quickly as is reasonably practicable;
(b) it
must not be any more intrusive than is reasonably necessary in the
circumstances;
(c) it
must be done by a person of the same gender as the person being searched
unless the person doing it is a doctor or a nurse;
(d) the
searcher, if he or she proposes to remove any article that the person is
wearing, must tell the person why it is considered necessary to do so;
(e) the
person must be allowed to dress as soon as it is finished;
(f) the
person must be provided with a reasonably adequate replacement for any article
of clothing or footwear seized if, due to the seizure, the person is left
without adequate clothing or footwear in the circumstances; and
(g) the
person must not be questioned while it is being done about any offence that he
or she is suspected of having committed.
(4) If a strip search
is done on a person that involves removing any article that the person is
wearing or searching the person’s private parts —
(a) any
person present while it is done must be of the same gender as the person being
searched;
(b) it
must be done in circumstances affording reasonable privacy to the person;
(c) it
must not involve the removal of more articles being worn by the person than is
reasonably necessary for doing it;
(d) the
person’s private parts must not be searched unless the searcher
reasonably suspects it is necessary to do so for the purposes of the search;
(e) it
must not involve more visual inspection than is reasonably necessary for doing
it; and
(f) the
number of people present while it is done (excluding a person who is present
under clause 8) must not be more than is reasonably necessary to ensure
it is done effectively and to ensure the safety of all present.
8 . Strip searches of protected people
(1) In this
clause —
“child” means a person who is under 18
years of age and in respect of whom there are no reasonable grounds to suspect
that he or she is an incapable person;
“incapable person” means a person of
any age —
(a) who
is unable by reason of a mental disability (which term includes intellectual
disability, a psychiatric condition, an acquired brain injury and dementia) to
understand the general nature and effect of, and the reason for and the
consequences of undergoing, a strip search; or
(b) who
is unconscious or otherwise unable to understand a request made or information
given under this Act or to communicate whether or not he or she consents to
undergoing a strip search;
“protected person” means a person who
is a child or an incapable person;
“responsible person” for a child,
means —
(a) a
parent of the child;
(b) a
guardian of the child;
(c)
another person who has responsibility for the day to day care of the child; or
(d) if
no person mentioned in another paragraph of this definition is available
— a person, or a person in a class of persons, prescribed;
“responsible person” for an incapable
person, means —
(a) the
spouse or de facto partner of the incapable person;
(b) a
parent of the incapable person;
(c) if
the incapable person is under 18 years of age — a guardian of the
incapable person;
(d) if
the incapable person has reached 18 years of age — the Public Advocate
or a guardian of the incapable person appointed under the
Guardianship and Administration Act 1990 ;
(e)
another person who has responsibility for the day to day care of the incapable
person; or
(f) if
no person mentioned in another paragraph of this definition is available
— a person, or a person in a class of persons, prescribed.
(2) If a strip search
is done on a protected person, it must be done in the presence of a
responsible person for the protected person or some other person who can
provide the protected person with support and represent his or her interests.
Defined Terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined Term Provision(s)
allegation of misconduct
4(1)
appropriate person
48(14)
ASIO Act 4(1)
authorised
51(1), Sch. 1, cl. 4(1)
basic search
Sch. 2, cl. 1
child Sch. 2, cl. 8(1)
Commissioner 4(1)
corresponding law
4(1)
Corruption and Crime Commission
4(1)
dealt with 32(4)
Deputy Commissioner
51(1)
detainee 38
detention
centre 4(1)
disclosure recipient
46(8)
disturb Sch. 1, cl. 4(1)
earlier discloser 46(8)
evidence of, or relating
to, a terrorist act 4(1)
expiry day
60(1)
family member 41(3)
first
anniversary 59(1)
frisk search
Sch. 2, cl. 1
identification material
4(1)
identifying particular 4(1)
incapable
person Sch. 2, cl. 8(1)
Inspector of Custodial
Services 4(1)
institution
4(1)
interpreter 46(6)
issuing authority
4(1)
judge 4(1)
lawyer
4(1), 46(2)
lock-up
4(1)
monitor 46(9)
national security
4(1)
nominated senior police officer
24(2)
occurrence time information 15(5)
parent/guardian 46(4)
Parliamentary Commissioner
4(1)
PDO 38
permitted detention period 4(1), 13(2)
person to
whom section 9 applies 9(1), 9(3)
place
4(1)
preservation order
15(1)
preventative detention order 4(1)
prevention order 15(1)
prison
4(1)
private parts Sch. 2, cl. 1
prohibited
contact order 4(1)
protected person
Sch. 2, cl. 8(1)
qualified person
48(1)
quarter 54(1)
reasonably suspects
4(1), 5
remote communication
12(1), 22(1)
responsible person Sch. 2, cl. 8(1),
2, cl. 8(1)
review proceedings 22(1)
searcher
Sch. 2, cl. 7(1)
seizable item
4(1)
senior police officer 4(1)
strip search Sch. 2, cl. 1
subject
17(1), 18(1), 22(2)
terrorist act
4(1), 6(1)