Police Want to Search Our Village — What Are the Rules?

Searching a village is not the same as searching a house, and the Search Act (Chapter 341) treats it separately. Section 6(2) creates a distinct kind of warrant, and section 6(3) attaches a safeguard found nowhere else in the Act.

The village warrant: section 6(2)

Where a court — other than a Local Court — is satisfied by information on oath by a commissioned officer of the Police Force that there are reasonable grounds for suspecting that there is, in any building or buildings in a village, or in any part of a village or village garden, any thing of the kind described in section 6(1), it may issue a warrant to search:

• the building or buildings;
• the village;
• part of the village; or
• the village garden.

The things referred to in section 6(1) are: 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; and a thing intended to be used to commit such an offence.

The customary leaders safeguard: section 6(3)

This is the provision every community should know.

Where a warrant has been issued under section 6(2), the person, policeman or policemen to whom it is directed shall, where it is practicable to do so, before executing the warrant, endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued.

Read the words carefully:

• “shall” — it is a duty, not a courtesy.
• “before executing the warrant” — not during, and not afterwards.
• “endeavour to obtain the co-operation” — police must genuinely try. The section does not require that leaders agree, and it does not give a veto.
• “those persons who, by custom, are regarded as the leaders” — the test is customary standing in that village, not an official title.
• “where it is practicable” — the qualifier. It is not an excuse for skipping the step whenever it is inconvenient.

A failure to perform this duty is a failure to perform a duty imposed by the Act, which section 17 makes actionable in damages.

Force

Section 6(4) states plainly that neither section 6(1) nor 6(2) justifies the use of greater force than is reasonable in the circumstances. The same limit runs through sections 4(3), 9(1)(a)(i) and 9(2)(a)(i).

Community members should know that the existence of a warrant does not licence destruction. Under section 9(1)(a)(ii) any interference with the structure of a place must be to the least extent necessary with the least amount of damage, and under section 9(1)(b) the search party must restore the place to as near as possible its previous state of cleanliness and neatness within a reasonable period after the search.

What a village should do

1. Identify who will speak. Decide in advance who the customary leaders are for this purpose so there is no confusion on the day.
2. Ask to see the warrant and note which court issued it, what place it describes, and what offence it names.
3. Ask whether the co-operation step under section 6(3) has been attempted, and record the answer.
4. Co-operate with the search itself. Obstruction creates offences and escalates risk.
5. Keep a written record — date, time of arrival and departure, number of officers, names and ranks, vehicles, which houses and gardens were entered.
6. Photograph damage and the state of houses and gardens before and after, if it is safe.
7. List everything taken, from whom, and ask for the section 12 register entry.
8. Get medical attention and reports for anyone injured.

Remedies

Two routes, which can run together. Section 17 of the Search Act gives damages, including exemplary damages, against a person who searches in breach of the Act or fails to perform a duty under it. The Constitution supplies the second: section 44 (freedom from arbitrary search and entry), section 49 (privacy), section 53 (protection from unjust deprivation of property), enforced under section 57 with compensation under section 58.

Claims against the State require written notice within six months under section 5 of the Claims By and Against the State Act 1996. See the notice rules. This deadline defeats more community claims than any argument on the merits.