Victorian Numbered Acts Victorian Numbered ActsAfter Part 7 of the Principal Act insert —
'SCHEDULE 1
Section 21P(3)
CONDUCT OF PERSONAL SEARCHES UNDER PART 3A
1. Application of Schedule
This Schedule applies to any search of a person carried out, or authorised to be carried out, by a member of the force under Part 3A, except as otherwise provided by this Act or the regulations.
2. Definitions
In this Schedule—
"electronic metal detection device" means an electronic device that is capable of detecting the presence of metallic objects;
"frisk search" means—
(a) a search of a person conducted by quickly running the hands over the person's outer clothing or by passing an electronic metal detection device over or in close proximity to the person's outer clothing; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing;
"ordinary search" means a search of a person or of things in the possession or under the control of a person that may include—
(a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat; and
(b) an examination of those items;
"strip search" means a search of a person or of things in the possession or under the control of a person that may include—
(a) requiring the person to remove all of his or her clothes; and
(b) an examination of the person's body (but not of the person's body cavities) and of those clothes.
3. Frisk searches and ordinary searches
(1) A member of the force who is authorised to search a person may carry out a frisk search or an ordinary search of the person for any purpose for which the search may be conducted.
(2) In conducting a frisk search, a member of the force may, if the member has asked the person to remove a coat or jacket, treat the person's outer clothing as being the person's outer clothing after the coat or jacket has been removed.
A member of the force who is authorised to search a person may only conduct a strip search of the person—
(a) if the person is suspected of being the target of an authorisation; and
(b) if the member believes on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out.
5. Preservation of privacy and dignity during search
(1) A member of the force who searches a person must, as far as is reasonably practicable in the circumstances, comply with this clause.
(2) The member must inform the person to be searched of the following matters—
(a) whether the person will be required to remove clothing during the search;
(b) why it is necessary to remove the clothing.
(3) The member must ask for the person's co-operation.
(4) The member must conduct the search—
(a) in a way that provides reasonable privacy for the person searched; and
(b) as quickly as is reasonably practicable.
(5) The member must conduct the least invasive kind of search practicable in the circumstances.
(6) The member must not search the genital area of the person searched, or in the case of a female or a transgender person who identifies as a female, the person's breasts unless the member suspects on reasonable grounds that it is necessary to do so for the purposes of the search.
(7) A search must be conducted by a member of the force of the same sex as the person searched or by a person of the same sex under the direction of the member.
(8) A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.
(9) A person must be allowed to dress as soon as a search is finished.
(10) If clothing is seized because of the search, the member of the force must ensure the person searched is left with or given reasonably appropriate clothing.
(11) In this clause—
"questioning" of a person means questioning the person or carrying out an investigation (in which the person participates);
"transgender person" means a person, whether or not the person is a recognised transgender person—
(a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex; or
(b) who has identified as a member of the opposite sex by living as a member of the opposite sex; or
(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex—
and includes a reference to the person being thought of as a transgender person, whether or not the person is, or was, in fact a transgender person.
6. Rules for conduct of strip searches
(1) A member of the force who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following—
(a) the strip search must be conducted in a private area;
(b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched;
(c) except as provided by this clause, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search.
(2) A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present.
(3) A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the child or person, in the presence of another person (other than a member of the force) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
(4) Sub-clause (3) does not apply if a parent, guardian or other acceptable person is not then present and the seriousness and urgency of the circumstances require the strip search to be conducted without delay.
(5) A strip search must not involve a search of a person's body cavities or an examination of the body by touch.
(6) A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(7) A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(8) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present.
(9) This clause is in addition to the other requirements of this Act relating to searches.
(10) In this clause—
"impaired intellectual functioning" means—
(a) total or partial loss of a person's mental functions; or
(b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or
(c) a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.