As an Australian citizen, it is important for you to understand your rights regarding police search powers. A common question we receive on this topic is when you can and cannot refuse the police entry into your home.
Under most circumstances, police cannot search your home against your will without a valid search warrant.
Here, we discuss your rights regarding police search powers, as well as circumstances where police may be able to enter your property without a warrant.
What is a Search Warrant?
A search warrant is a court order that authorises police officers to enter and search private premises without the owner’s consent.
Search warrants can be issued by a judge of any Queensland court, and if the police have a legitimate search warrant for your property, you cannot refuse them entry.
In Queensland, the legislation governing police search powers is the Police Powers and Responsibilities Act (2000). This act outlines when the police may apply for a search warrant, for example in circumstances when the warrant is required to obtain evidence of the commission of an offence or to find prohibited items.
If a warrant which led to a search failed to properly comply with the legislation, a court can determine the search to have been legally invalid. This occurred recently in the case of Smethurst v Commissioner of Police (2020), where a warrant used to search a journalist’s residence and seize property was found to be unlawful due to its breach of statute. In cases such as these, the court may prevent any evidence resulting from the search from being used to prosecute the alleged offence.
In Queensland, search warrants must specify items which the police are seeking to confiscate, including digital devices such as mobile phones or computers. If the police ask to confiscate a possession not specified on the warrant, you have the right to refuse. However, if your phone or computer is on the search warrant, you are legally obligated to provide passwords or codes to allow the police access.
The police must also provide you with a copy of the warrant, as well as a statement of their powers under the warrant.
It is worth noting that police generally do not have a right to question you while they are conducting a search of your premises.
When Can the Police Search My Home Without a Warrant?
There are certain instances outlined in the Police Powers and Responsibilities Act (2000) when the police can enter your property without a warrant.
These circumstances include the police:
- In urgent circumstances, such as when a person is seriously injured or about to be harmed
- Preventing domestic violence
- Investigating traffic offences (e.g. conducting a breath test for alcohol on an individual)
- Arresting someone
- Catching someone who has escaped from prison or arrest
- Searching for evidence if there is reasonable suspicion that evidence may otherwise be hidden or destroyed
- Delivering a legal document or notice
In these circumstances, you are not able to refuse the police entry even if they do not have a warrant. However, the police are only permitted to stay for a reasonable amount of time to make their enquiry.
Knowing Your Rights Regarding Police Search Powers
If the police request to search your private premises without a search warrant, and they are not doing so under the aforementioned circumstances which would justify entry without a warrant, you have the right to refuse them entry.
However, you should not physically prevent the police from entering your property. If police enter after you have exercised your right to deny entry, they are violating legislation and you should write down the officer’s names and positions before recording details of the incident and seeking legal advice. In this case, it is useful to have a witness present who can clearly hear you refuse entry to the police. This will make things simpler should the matter go to court.
If police seize personal possessions of yours as evidence, make sure you get a receipt for these items from the police to ensure that they are returned undamaged.
Getting Legal Advice About Police Search Powers
If you believe that police search powers have been abused in a case involving a search of your property, Guest Lawyers can help.
Our experienced criminal lawyers offer free consultations to provide preliminary legal advice, which can clear up uncertainties regarding police search powers and devise an appropriate legal strategy for your case. We can also act on your behalf should the matter appear before court.