The police usually need a search warrant to enter and search private property, unless:
- You agree to the police entering
- The police have a reasonable belief that a serious offence will be or has been committed and entry is necessary to make an arrest
- Entry is necessary to stop a breach of the peace
- There has been a breach of an intervention order
- The police are chasing someone who has escaped from custody
- The police have a warrant for arrest
- The police have a reasonable belief that illegal drugs are on the premises
See also What if ASIO visit
To get a search warrant, police must apply to a magistrate and provide sworn evidence, either in person or by affidavit. Once they have a warrant, police are only authorised to search a particular premises for specified items. There will also be an expiry date on the warrant. The police must serve an adult occupier of the house with a copy of the warrant.
Police cannot legally, for example, come to your house with a warrant for stolen electrical goods, and then attempt to take your address book. However if they come across evidence of an offence (for instance a marijuana plant) while searching they are entitled to take that and arrest you.
Under section 456AA of the Crimes Act1958 (Vic) the police can ask for your name and address if they believe that you:
- Have broken the law
- Are about the break the law
- Are able to assist them with information about an indictable offence
If the police demand your name and address they MUST give you reasons for doing so. You should ask for these reasons.
The police must also tell you their name, identification number, police station and rank. You should always ask for this information and ask that it be provided in writing.
The police may also demand your name and address without giving a reason if you:
- Are driving a car, motor bike, boat or push bike
- Are on public transport or public transport property (public transport officers can also ask for your name and address)
- Are in a hotel or licensed premises
It is an offence with a maximum penalty of a fine of $500 to refuse to give your name and address or to give false details to police, public transport officers and authorised National Parks officers.
If you give a false name and address when arrested and taken into custody, it may increase the time you are held for questioning and verification of your identification, and also affect whether you are granted bail.
Generally, the police can only search you if you agree or if they have a warrant.
The police can search you, your possessions and your car without consent or a warrant if you are in a public place and they believe you are carrying illegal drugs, volatile substances, weapons, graffiti implements, or firearms. Note that “weapons” can include any object which has been either modified to enable it to be used as a weapon or any object carried with the intent of being used as a weapon. If you are within a “designated area” the police do not need to have a reasonable suspicion that you are actually in possession of or intend to use a weapon in order to search you. If you are not within a designated area, however, there must exist a reasonable suspicion or evidence on which their decision to search you has been based. The police can include in their reasons to search you that you are in an area with a high rate of violent crime. Police can't legally stop and search you on a whim or because they don't like you - although this often occurs.
Police may conduct a ”pat-down search” of the outside of your clothes and ask you to empty your pockets.
If the police reasonably suspect you are carrying a weapon and you refuse to produce it, you could be charged and fined.
If you are in custody or under arrest you can be searched for things that could be used as evidence for the offence you have been arrested for. Police may conduct either a ”pat-down search” or a ”strip search” in a private place.
Police must not undertake an internal search without first obtaining a court order.
Searches are required to be conducted, so far as reasonably practicable, by police officers of the same sex as the person to be searched. In other words, women, including people who identify as women must be searched by female police officers. This does not always occur - the unfortunate reality is that male police often strip search female suspects as a form of harassment and intimidation.
The International Covenant on Civil and Political Rights (ICCPR Article 17) protects against arbitrary and unlawful interference with privacy. Many searches are arguably random (and therefore arbitrary), aimed at the general population rather than specific individuals suspected of criminal offences.
Where possible, refuse to be searched, but if police insist then closely monitor them. Try to have as many witnesses as possible to follow and observe each police officer (there will usually be several). Use cameras and tape recorders, if you have them.
Check every item police attempt to take away, and ensure your witnesses see that police don't plant or falsely "find" anything. Insist on a detailed receipt for anything that is taken - this can be cross-referenced with the report to the magistrate. Do not countersign this receipt if it is not accurate or not fully detailed.
If property is taken from you during an arrest or at a demonstration, have a lawyer write a letter to police immediately, demanding return of the property. Raise the matter before a magistrate, if you are charged. Put on record as soon as possible what was taken, where it was taken and by whom. This helps any legal follow-up that may be necessary.