Media response - Stop and search legislation

Questions asked by:  The West Australian

Subject:  Stop and search legislation

Question 1.

If a person does not consent to being stopped and searched in a designated area at the appropriate time (ie, they physically will not comply) 

Minister's response:

Nothing changes in terms of the types of searches police currently conduct or indeed the powers police have to enforce a search if needed. Under section 16 of the Criminal Investigation Act 2006 reasonable force can already be used to conduct the search.  Should they continue to resist the search, the individual can be be prosecuted for Obstruction of Police Officer in the performance of their duty under section 172 of the Criminal Code. 

a) What can the police do? 

Minister's response:

As stated above, Police can use reasonable force to conduct a basic search.  They can already do this if a person refuses a search. In this context, it must be borne in mind that the search is a 'basic search' only that involves:

- a scan with a mechanical or electronic device;

- remove headwear, gloves, footwear and outer clothing (coat or jacket);

- frisk search; and

- further search any removed article.

• Can the person be physically restrained and forced into a search on the street? 

Minister's response:

Again, nothing changes. As stated above, Police can use reasonable force to conduct the search where the person resists as per section 16 of the Criminal Investigation Act.  This is consistent with any other lawful search conducted under that Statute. 

• Or would they be arrested and removed from the street and taken to a police station?   

Minister's response:

As currently is the case, it is ultimately possible for the person to be arrested for the offence of obstructing police under section 172 of the Criminal Code and then removed to a Police Station.  However, this would be a last resort and very dependent upon the specific circumstances, place of the search, extent of resistance and general demeanour of the individual. 

b) What charges could be laid against a person who refused to be searched? 

Minister's response:

As now, the offence of obstructing police under section 172 of the Criminal Code. 

c) What are the maximum penalties for those charges?

Minister's response:

As they are now. Maximum imprisonment period of three years where it is dealt with by the District or Supreme Court as an indictable offence.  If it is dealt with summarily before the Magistrates Court, which is highly likely to be the case, the penalty is a maximum imprisonment period of 18 months and/or a maximum fine of $18,000.

Question 2:

If a police officer conducts a search on a person outside a designated area without the required reasonable suspicion (either mistakenly or as an abuse of power) what are the consequences? What action can be taken by the person?

Minister's response:

This is an extremely complex question and dependent upon the circumstances of each specific case.  Remedies can include no action being taken, internal disciplinary proceedings, criminal proceedings for such an offence as assault as well as separate civil litigation.