A search of your body and clothing is the most intrusive thing that can happen to you short of arrest. Section 3 of the Search Act (Chapter 341) lists exactly when it is permitted, and section 4 governs how.
The five situations
1. Stolen goods or offence items — section 3(1)
Where a policeman believes on reasonable grounds that a person has in his possession:
- anything that has been stolen or otherwise unlawfully obtained; or
- anything used or intended to be used in the commission of an indictable offence,
he may stop and search that person in accordance with section 4, and where applicable seize under section 10(1).
Note the limits. This is a police power only. It requires reasonable grounds about possession, not a general hunch that someone looks suspicious. And the second limb is confined to indictable offences — the serious ones.
2. On arrest — section 3(2)
Where a policeman believes on reasonable grounds that it is necessary, he may at the time of arresting a person search that person, the clothing worn and any property under their immediate control, for one of two purposes only:
- to ascertain whether the person is concealing a firearm or other offensive weapon; or
- to prevent the loss or destruction of evidence relating to the offence for which they were arrested.
Those two purposes are exhaustive. A search on arrest is not a general licence to look for anything at all.
3. Before detention in a place of confinement — section 3(3)
Where a person in lawful custody is to be detained in a place of confinement, they may, immediately before being detained, be searched at that place by a policeman or a member of the Correctional Service, as the case requires.
4. Boarding a craft — section 3(4)
The owner of a craft, a person in command of it, a person authorised by either, or a policeman may search a person intending to board. This is the provision behind airport and vessel screening.
5. Danger to a craft — section 3(5)
Where the person in command of a craft suspects that someone on board constitutes a danger to its safety, that person — or people they authorise — may search them.
Sections 3(4) and 3(5) put search powers in the hands of craft owners, commanders and their authorised staff. Every one of the five, however, must be exercised in accordance with section 4.
How a search must be conducted: section 4
Section 4 is short, and every subsection is a limit.
- 4(1) — a person conducting a search may touch the body and clothing of the person searched. That is the extent of the authority the subsection grants.
- 4(2) — searches of the person shall be conducted with due regard to decency.
- 4(3) — the searcher shall not use any greater force than is reasonable in the circumstances.
- 4(4) — subject to subsection (5), a search of a female shall only be carried out by or in the presence of an adult female.
Section 4(4) is mandatory, not best practice. A search of a woman must be carried out by an adult female, or in the presence of one.
There is one narrow exception. Under section 4(5), where a policeman has reasonable grounds to believe that a female he has arrested is carrying a firearm or other offensive weapon, he may — with due regard to decency — seize the weapon. Section 4(6) then confirms that this does not justify greater force than is reasonable.
Read carefully, the exception is about seizing a weapon from an arrested woman, not about conducting a general search outside the presence of a woman.
What can be taken
Each limb of section 3 is tied to a matching seizure power in section 10:
| Search power | Seizure power | What may be seized |
|---|---|---|
| s 3(1) stop and search | s 10(1) | Things believed stolen, used or intended for an indictable offence, or that will provide evidence of an offence |
| s 3(2) on arrest | s 10(2) | A firearm or offensive weapon |
| s 3(3) before confinement, s 3(4) boarding | s 10(3) | Anything that may be dangerous or inexpedient to leave with the person |
| s 3(5) danger to craft | s 10(4) | Anything constituting or capable of constituting a danger to the craft, or capable of being used to threaten a person on board |
What happens to seized property afterwards is covered in part 5 of this series.
If you are searched
- Do not resist. An unlawful search is something a court can remedy afterwards; resisting creates a fresh problem.
- Ask what the search is for. The answer tells you which limb of section 3 is being relied on.
- Note names, ranks, the time and the place, and any witnesses.
- If a woman is searched otherwise than by or before an adult female, record that fact precisely.
- Ask for a receipt or record of anything taken — section 12 requires police to enter seized items in a permanent register.
Whether a particular search was lawful depends on 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 and 49)
- Arrest Act (Chapter 339) — 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. Section references are to the text consolidated to No 40 of 2015.
Searching a Vehicle, a Craft or a Building Without a Warrant →