Section 17 — Environment Protection and Biodiversity Conservation Act 1999: Power to conduct a strip search

(1) A strip search of a detainee, other than a detainee to whom clause 23 applies, may be conducted by an approved officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used: (a) to inflict bodily injury; or (b) to help the detainee, or any other detainee, to escape from detention. Note: Clause 18 sets out rules for conducting a strip search under this clause. (2) A strip search of a detainee means a search of the detainee, of his or her clothing or of a thing in his or her possession. It may include: (a) requiring the detainee to remove some or all of his or her clothing; and (b) an examination of that clothing and of the detainee’s body (but not of the detainee’s body cavities). (3) A strip search of a detainee may be conducted by an approved officer only if: (a) an authorised officer or detention officer suspects on reasonable grounds that there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subclause (1); and (b) the authorised officer, or detention officer, referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and (c) the strip search is authorised as follows: (i) if the detainee is at least 18—the Secretary, the Director, the Chief Executive Officer of the Great Barrier Reef Marine Park Authority or an SES Band 3 employee in the Department (who is not the authorised officer referred to in paragraphs (a) and (b) nor the approved officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions; (ii) if the detainee is at least 10 but under 18—a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions. (4) An authorised officer or detention officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of: (a) a search conducted under clause 15 (whether by that authorised officer or detention officer or by another authorised officer or detention officer); or (b) a screening procedure conducted under clause 16 (whether by that authorised officer or detention officer or by another authorised officer or detention officer); or (c) any other information that is available to the authorised officer or detention officer. (5) An authorisation of a strip search given for the purposes of subparagraph (3)(c)(i): (a) may be given by telephone, fax or other electronic means; and (b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given. (6) A record made under paragraph (5)(b) is not a legislative instrument. (7) A failure to comply with paragraph (5)(b) does not affect the validity of a strip search conducted on the basis of that authorisation. (8) The power to authorise a strip search under subparagraph (3)(c)(i) cannot be delegated to any other person. (9) A power conferred on a magistrate by this clause is conferred on the magistrate in a personal capacity and not as a court or a member of a court. (10) The magistrate need not accept the power conferred. (11) A magistrate exercising a power under this clause has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member. (12) To avoid doubt, a strip search of a detainee may be conducted under this clause irrespective of whether a search of the detainee is conducted under clause 15 or a screening procedure is conducted in relation to the detainee under clause 16. (13) In this clause: SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3. Note: This clause corresponds closely to section 252A of the Migration Act 1958.