An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes
Part 6—Search, seizure and powers of arrest
Division 4—Arrest and related matters
129 Power to enter premises to arrest person
(1) Subject to subsection (2), if:
a police officer has, under this Act or pursuant to a warrant issued under this Act, power to arrest a person; and
the police officer believes on reasonable grounds that the person is on any premises;
the police officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2) A police officer must not enter a dwelling house under subsection (1) at any time during the period commencing at 9 pm on a day and ending at 6 am on the following day unless the police officer believes on reasonable grounds that:
it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
it is necessary to do so in order to prevent the concealment, loss or destruction of evidential material.
(3) In subsection (2):
dwelling house includes a conveyance, and a room in a hotel, motel, boarding house, or club, in which people ordinarily retire for the night.
130 Use of force in making arrest
A person must not, in the course of arresting another person under this Act or pursuant to a warrant issued under this Act, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
Without limiting the operation of subsection (1), a police officer must not, in the course of arresting a person under this Act or pursuant to a warrant issued under this Act:
do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); or
if the person is attempting to escape arrest by fleeing—do such a thing unless:
the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); and
the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.
131 Persons to be informed of grounds of arrest
A person who arrests another person under this Act or pursuant to a warrant issued under this Act must inform the other person, at the time of the arrest, of the crime in respect of which, or, if the other person is arrested under section 182, the reason for which, the other person is being arrested.
It is sufficient if the other person is informed of the substance of the crime or reason, and it is not necessary that this be done in language of a precise or technical nature.
Subsection (1) does not apply to the arrest of the other person if:
the other person should, in the circumstances, know the substance of the crime in respect of which, or the reason for which, he or she is being arrested; or
the other person’s actions make it impracticable for the person making the arrest to inform the other person of the crime in respect of which, or the reason for which, he or she is being arrested.
132 Power to conduct a frisk search of an arrested person
A police officer who arrests a person under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
conduct a frisk search of the person at or soon after the time of arrest; and
seize any seizable items found as a result of the search.
133 Power to conduct an ordinary search of an arrested person
A police officer who arrests a person under this Act or pursuant to a warrant issued under
this Act, or is present at such an arrest, may, if the police officer suspects on reasonable grounds that the person is carrying:
evidential material relating to the crime to which the person’s custody relates; or
a seizable item;
conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.
134 Power to conduct search of arrested person’s premises
A police officer who arrests a person at premises under this Act or pursuant to a warrant issued under this Act, or is present at such an arrest, may seize things in plain view at those premises that the police officer believes on reasonable grounds to be:
evidential material relating to the crime to which the person’s custody relates; or
seizable items.
135 Power to conduct an ordinary search or strip search
(1) If a person who has been arrested under this Act or pursuant to a warrant issued under this
Act is brought to a police station, a police officer may:
if an ordinary search of the person has not been conducted—conduct an ordinary search of the person; or
subject to this section, conduct a strip search of the person.
(2) A strip search may be conducted if:
(a) a police officer suspects on reasonable grounds that:
the person has in his or her possession evidential material relating to the crime to which the person’s custody relates; or
the person has in his or her possession a seizable item; or
a visual inspection of the person’s body will provide evidence of the person’s involvement in that crime; and
the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that thing or to discover that evidence; and
a police officer of the rank of superintendent or higher has approved the conduct of the search.
Subject to section 136, a strip search may also be conducted if the person consents in writing.
Subject to section 136, a strip search may be conducted in the presence of a medical practitioner, who may assist in the search.
The approval may be obtained by telephone, telex, fax or other electronic means.
A police officer who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.
Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).
Any item of a kind referred to in subparagraph (2)(a)(i) or (ii) that is found during a strip search may be seized.
136 Rules for conduct of strip search
(1) A strip search:
must be conducted in a private area; and
must be conducted by a police officer who is of the same sex as the person being searched; and
subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 10 years of age; and
(f) if the person being searched is at least 10 but under 18 years of age, or is incapable of managing his or her affairs:
may only be conducted if a court orders that it be conducted; and
must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and, as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a person’s body cavities; and
(h) must not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the crime to which the person’s custody relates; and
(i) must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to establish the person’s involvement in the crime to which the person’s custody relates.
(2) In deciding whether to make an order referred to in paragraph (1)(f), the court must have regard to:
the serious nature of the crime to which the person’s custody relates; and
the age or any disability of the person; and
such other matters as the court thinks fit.
(3) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
If any of a person’s garments are seized as a result of a strip search, the person must be provided with adequate clothing.
Arrest
Arrest for ICC proceedings - national procedures
Arrest for ICC proceedings - obligation
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