Aussie car searches

[KazK]

Hello, I ask these questions merely out of interest, not from being an 'anarchist' - I like to know the laws of countries I'm in.
When do the police have the right to search a car in Australia? (Victoria to be specific)
Does their right to search a car differ between a checkpoint (when you're stopped randomly, for no criminal reason) and an actual traffic violation stop? - I guess I mean, is it 'easier' to search a car following a traffic violation?
And
Is it illegal to drink alcohol in a car? (passengers of course)

We had an encounter at a checkpoint recently which included 'threats' of car searches - we were all foreign. It was all simply banter - mostly between the officer and the Kiwi boys in the back drunkenly yelling out "good afterbul constanoon"....don't ask...

Once we'd left the checkpoint my Irish friend and I wondered what circumstances lead to car searches? (I'm not sure that the officer's reasoning of 'suspicious foreigners' was quite serious) And we also wondered why one of the Kiwi boys was hiding his beer badly in the back - he wasn't sure why he was either, I'm sure the officer could have seen it and he didn't seem worried by the presence of open alcohol.

If there's an Australian around, or someone in the know who could answer those questions, that would be great. Thanks.

[G35 Mass]

Were you hiding any contraband?

[KazK]

Is that not allowed?

I never leave home without one.

(that is cute by the way - and someone really put some effort into reconstructing a pouch)

[oscarmitre]

Hello, I ask these questions merely out of interest, not from being an 'anarchist' - I like to know the laws of countries I'm in.
When do the police have the right to search a car in Australia? (Victoria to be specific)
Does their right to search a car differ between a checkpoint (when you're stopped randomly, for no criminal reason) and an actual traffic violation stop? - I guess I mean, is it 'easier' to search a car following a traffic violation?
And
Is it illegal to drink alcohol in a car? (passengers of course)

We had an encounter at a checkpoint recently which included 'threats' of car searches - we were all foreign. It was all simply banter - mostly between the officer and the Kiwi boys in the back drunkenly yelling out "good afterbul constanoon"....don't ask...

Once we'd left the checkpoint my Irish friend and I wondered what circumstances lead to car searches? (I'm not sure that the officer's reasoning of 'suspicious foreigners' was quite serious) And we also wondered why one of the Kiwi boys was hiding his beer badly in the back - he wasn't sure why he was either, I'm sure the officer could have seen it and he didn't seem worried by the presence of open alcohol.

If there's an Australian around, or someone in the know who could answer those questions, that would be great. Thanks.

You realise of course that Australia has a national law that says when it comes to Kiwis the cops can do what they like?

Just kidding, that only applies during rugby season.

Can't give you a specific answer relative to Victoria but in a very general sense this is how it works in Australia (I caution, this is very, very general).

There is no equivalent of the US Constitution so police authorities vary from State to State (and Territory). There is a sort of set of similarities though. Usually to search without consent a police officer should have reasonable cause to search a vehicle for a given reason. The usual causes are reasonable suspicion that there is property subject to seizure - could be stolen or unlawfully obtained property or stuff you shouldn't have (i.e. controlled substances of some sort).

In reality reasonable cause is sometimes not present but a police officer will request a search anyway, if he or she thinks they may get a result. No, post-facto justification is not directly acceptable but courts do have the authority to disregard this and admit evidence gained as a result of a search without reasonable cause if the court decides that the probative value outweighs the prejudicial value. This line of reasoning goes back to R. v Ireland a 1970 murder case in South Australia (my state) which focused on the law concerning self-incrimination and admissibility of evidence obtained in breach of the substantive law and is also found in a WA case which went to the High Court which refined the law concerning admissibility of evidence based on physical evidence (Bunning v Cross).

The issue for a police officer becomes complex when, if the officer has no reasonable cause or is merely on a fishing expedition, and a person refuses the search or hinders the search. The police officer has to think if it's worth pushing it, that is, actually using physical force to conduct the search. If he or she does and strikes gold then they are in a better position than if they find nothing and have in custody a struggling, spitting, angry and definitely litigious member of the public. The officer can find themselves on the wrong end of a law suit and in Australia the suit is against the individual officer and not the department as there is no vicarious liability provision for police due to the issue of original authority being invested in the individual officer.

In summary, generally speaking there should be a reasonable cause to suspect but should evidence be found a court will not automatically strike out that evidence and the defendant may find the found evidence is admitted and he or she is convicted even with what might be considered tainted evidence if the case were subjected to a 4th Amendment test (which as I mentioned doesn't apply in Aus). So, a defendant can't necessarily expect to beat a charge on the basis of automatic inadmissibility of evidence.

The search provisions generally - again caution on this - apply in all stop circumstances and unless there is specific evidence to the contrary there is no general search authority simply because of a random stop or a checkpoint stop. Some states and territories have introduced laws which do allow a random search of any person or vehicle at a properly authorised checkpoint (either out on the highway or where there is a public event). If in doubt politely ask the police officer what their authority is for the search. Listen carefully to what you're told because your immediate future may depend on it.

I won't give you advice about compliance, that's up to you to work out. Just remember that most cops are very careful about exercising their authority and usually only do so when they know they're on very solid ground.

Booze in car. Not an offence in many jurisdictions, but it pays to check wherever you are. It might seem weird but sitting in a driver seat with a beer isn't a prima facie offence, just watch the BAC though. Again check the jurisdiction's laws on that - Australian Forums - may be useful.