Commonwealth Numbered Acts

CRIMES AMENDMENT ACT 1991 No. 140 of 1991 - SECT 3

3. After section 10 of the Principal Act the following sections are inserted:
Searches without warrant in emergency situations

"10A.(1) This section applies when a constable suspects, on reasonable
grounds, that:

   (a)  a thing relevant to an indictable offence is in or on a conveyance;
        and

   (b)  it is necessary to exercise a power under subsection (2) in order to
        prevent the thing from being concealed, lost or destroyed; and

   (c)  it is necessary to exercise the power without the authority of a
        search warrant because the circumstances are so serious and urgent.

"(2) The constable may:

   (a)  stop and detain the conveyance; and

   (b)  search the conveyance, and any receptacle in or on the conveyance, for
        the thing; and

   (c)  seize the thing if he or she finds it there.

"(3) If, in the course of searching for the thing, the constable finds another
thing relevant to an indictable offence or a thing relevant to a summary
offence, the constable may seize that thing if he or she suspects, on
reasonable grounds, that:

   (a)  it is necessary to seize it in order to prevent its concealment, loss
        or destruction; and

   (b)  it is necessary to seize the thing without the authority of a search
        warrant because the circumstances are so serious and urgent.

"(4) The constable must exercise his or her powers subject to section 10B. How
a constable exercises a power under section 10A

"10B. When a constable exercises a power under section 10A in relation to a
conveyance, he or she:

   (a)  may use such assistance as is necessary; and

   (b)  must search the conveyance in a public place or in some other place to
        which members of the public have ready access; and

   (c)  must not detain the conveyance for longer than is reasonable and
        necessary to search it and any receptacle found in or on the
        conveyance; and

   (d)  may use such force as is necessary, but must not damage the conveyance
        or any receptacle found in or on the conveyance by forcing open a part
        of the conveyance or receptacle unless the person apparently in charge
        of the conveyance (if any) has been given a reasonable opportunity to
        open that part. Territory law not to be limited or excluded

"10C. Sections 10A and 10B do not limit or exclude the operation of a law of a
Territory relating to:

   (a)  the stopping, detaining or searching of conveyances in connection with
        offences against any law of the Territory; or

   (b)  the seizure of things in connection with offences against any law of
        the Territory. Retention of things which are seized

"10D.(1) When a constable seizes a thing under section 10A, the constable may
retain it until the end of 60 days after its seizure.

"(2) At the end of the 60 days, the constable must take reasonable steps to
return the thing to the person from whom it was seized or (if that person is
not entitled to possess it) the owner, unless:

   (a)  proceedings in respect of which the thing may afford evidence were
        instituted before the end of the 60 days and have not been completed
        (including an appeal to a court in relation to those proceedings); or

   (b)  the constable may retain the thing by virtue of an order under section
        10E; or

   (c)  the constable is otherwise authorised (by a law, or an order of a
        court, of the Commonwealth or of a State or Territory) to retain,
        destroy or dispose of the thing. Court of summary jurisdiction may
        permit a thing to be retained

"10E.(1) Where:

   (a)  before the end of 60 days after a thing is seized under section 10A by
        a constable; or

   (b)  before the end of a period previously specified in an order of a court
        under this section; proceedings in respect of which the thing may
        afford evidence have not commenced, the constable may apply to a court
        of summary jurisdiction for an order that he or she may retain the
        thing for a further period.

"(2) Where the court is satisfied that it is necessary for the constable to
continue to retain the thing:

   (a)  for the purposes of an investigation as to whether an offence has been
        committed; or

   (b)  to enable evidence of an offence to be secured for the purposes of a
        prosecution; the court may order that the constable may retain the
        thing for a period specified in the order.

"(3) Before the court hears the application, it may require notice of the
application to be given to such persons as the court thinks fit.".