Your home is where the constitutional protection is strongest. Section 44 of the Constitution confers freedom from arbitrary search and entry, and section 49 the right to privacy. The Search Act (Chapter 341) exists to regulate those freedoms, and it leaves exactly one route into a building without a warrant.
The one exception: immediate pursuit
Section 5(5). Where a policeman is in immediate pursuit of a person whom he believes on reasonable grounds to have committed an indictable offence, he — or persons he authorises — may search any building or place in which he believes on reasonable grounds that the person pursued:
- is concealed; or
- has, in the course of the pursuit, concealed or deposited anything.
- Immediate pursuit — a chase happening now, not a return visit later.
- An indictable offence — a serious charge, not any offence at all.
- Reasonable grounds, on the two-limb test in section 1(2), that the person or the thing is in that building.
Remove any one and section 5(5) is not engaged.
Otherwise: a warrant
Every other search of premises runs through section 6. A court — other than a Local Court, and never a Village Court — must be satisfied by information on oath that there are reasonable grounds for suspecting that there is in the building, craft, vehicle or place:
- a thing with respect to which an offence has been, or is believed on reasonable grounds to have been, committed;
- a thing likely to afford evidence of such an offence; or
- a thing intended to be used to commit such an offence.
The warrant itself must, under section 8, describe the place to be searched, state briefly the offence or matter, and order the search and seizure. See search warrants explained.
Remember too that under section 16 other Acts may confer their own search powers. If officers say they are acting under a different Act, ask which one.
What they may do inside
Section 9(1) gives the search party power to:
- enter and be in the place for the duration of the search, using such force as is reasonably necessary;
- interfere with the structure of the place — but only to the least extent necessary with the least amount of damage;
- touch any article in the place; and
- stop and search any person found there, in accordance with section 4 — which includes the rule that a woman may only be searched by or in the presence of an adult female.
Under section 9(1)(b), the search party shall, within a reasonable period after the search ends, restore the place — or cause it to be restored — as nearly as possible to the same state of cleanliness and neatness that existed immediately before the search began.
This is a statutory duty. Section 9(4) does not require them to rebuild structure they lawfully interfered with, but it does not excuse leaving a house turned over.
If things are taken
Under section 10(1), a policeman may seize anything found during an authorised search that he believes on reasonable grounds is stolen or unlawfully obtained, has been or is intended to be used in an indictable offence, or will provide evidence of an offence. Under section 8(c), a warrant authorises seizure of things relating to the offence named or to any other offence.
Section 12 then requires the officer to enter each item in a permanent register of property. Ask for that entry before they leave, or as soon as possible afterwards.
What to do during a search of your home
- Do not obstruct. Obstruction is its own problem, and it will not undo an unlawful search.
- Ask to see the warrant and read it: which court, which place, which offence, who it is directed to.
- If there is no warrant, ask what power they are relying on. If the answer is immediate pursuit, note the time and what was said.
- Write down names, ranks, the unit or vehicle, and the time they arrived and left.
- Have someone present if you can, and ask a neighbour to witness.
- Photograph the state of the house before and after, if it is safe to do so.
- List everything taken and ask for the register entry.
If the search was unlawful
Section 17 makes a person who searches in breach of the Act — or who fails to perform a duty imposed by it, such as the restoration duty — liable in damages, with exemplary damages available. The Constitution runs alongside: sections 44 and 49 create the rights, section 57 allows the National or Supreme Court to enforce them, and section 58 provides for compensation. Property damage may also engage section 53, protection from unjust deprivation of property.
Claims against the State are subject to the six-month written notice requirement under section 5 of the Claims By and Against the State Act 1996 — see the notice rules explained in full. Act immediately.
Whether a search of your home was lawful depends on the warrant, the power relied on and the facts. Speak to a lawyer or the Office of the Public Solicitor.
Sources
- Constitution of the Independent State of Papua New Guinea — PacLII (sections 44, 49, 53, 57, 58)
- Kangual Kwialu v Dumop Dage (2016) N6270 — vLex
- Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864 — vLex
- PNG Consolidated Legislation — PacLII index
The Search Act (Chapter 341) is not carried in PacLII’s consolidated Acts database or on vLex at the time of writing. The judgments are listed as examples of claims arising from police entries and raids; read them in full before relying on them.