What Is a Lawful Search in PNG?

In this series we take one legal idea at a time and set it out plainly. This series covers searches — of your person, your vehicle, your house and your village — and it starts with the question everything else depends on: when is a search lawful at all?

It begins in the Constitution

Most Acts do not announce which constitutional rights they restrict. The Search Act does, in its opening words. It is an Act to regulate or restrict two of the qualified rights in Subdivision III.3.C of the Constitution:

• section 44 — freedom from arbitrary search and entry; and
• section 49 — the right to privacy.

That framing matters. The starting position is that you are free from search and entry. The Act is the exception, not the rule, and a search that falls outside it is not merely irregular — it invades a constitutional right, with the remedies that follow. See Your Basic Rights under the Constitution.

There is no common law search warrant

Section 19 is short and decisive. It abolishes:

• all powers at common law to issue search warrants; and
• all duties and responsibilities imposed by the common law in relation to searches and search warrants.

The consequence mirrors the one in the Arrest Act: a power to search must be found in a written law. Nobody can rely on tradition, practice, or what the law used to permit elsewhere.

Section 16 completes the picture: the circumstances set out in the Search Act are in addition to and not in derogation of powers of search conferred by any other Act or subordinate enactment. Other statutes do create further search powers — but they must be statutes.

“Reasonable grounds” is a two-part test

Nearly every power in the Act turns on someone believing something on reasonable grounds. Section 1(2) defines the phrase exactly as the Arrest Act does. A person believes something on reasonable grounds if:

• he personally has that belief; and
• there are reasonable grounds for that belief.

Words the Act defines

Section 1(1) supplies definitions that decide who can do what:

• “court” — any court other than a Village Court, including a Judge or Magistrate of such a court. A Village Court does not issue search warrants.
• “craft” — an aircraft or part of one, or a vessel or part of one.
• “vehicle” — any description of vehicle on wheels or runners.
• “place of confinement” — a corrective institution, rural lock-up or police lock-up.
• “policeman” — a member of the Police Force.
• “warrant” — a warrant issued under any law for the search of a place, including premises, a vehicle, aircraft, vessel, luggage or freight.

Where the Act applies

Section 2(1) gives it broad reach: notwithstanding any other law, the Act applies to and in relation to any search, whether under this Act or any other law.

There are express carve-outs. The Act does not apply to a search under a warrant issued under the National Intelligence Organization Act, nor to searches authorised under the Migration Act (Chapter 16).

How the Act is built

• Part I — definitions and application.
• Part II — searches of the person: when they may happen (section 3) and how they must be conducted (section 4).
• Part III — searches of premises, vehicles and craft. Division 1 covers searches without a warrant (section 5); Division 2 covers warrants (sections 6–8); Division 3 the powers and duties during a search (section 9); Division 4 property found (sections 10–15).
• Part IV — other search powers, the civil remedy, scope of employment, and the abolition of common law powers.

A wrongful search is actionable

Section 17 makes a person who searches in breach of the Act, exercises another power under it in breach, performs a duty in breach, or fails or refuses to perform a duty, liable in damages to the person aggrieved. The action lies in the National Court or, within the section 21 limits of the District Courts Act, a District Court — and the court may award exemplary damages. See part 10 of this series.