A New South Wales police officer who conducted multiple strip searches at the 2018 Splendour in the Grass music festival near Byron Bay has recently admitted that many of these searches may have been illegal.

The admission was made last week under questioning at the Law Enforcement Conduct Commission’s investigation into the use of strip search powers by the NSW Police. The Commission is investigating the legality of a strip search conducted on a 16-year-old girl at the festival, without the presence of a parent or guardian. The search failed to uncover any drugs. The Commission is yet to determine whether the police engaged in serious misconduct, or if they behaved illegally or unreasonably in carrying out strip searches at the event.

Over the past four years, the number of strip searches carried out by NSW Police have increased by almost 50%, yet police did not find anything illegal in 64% of searches.

The Law

Rules surrounding the powers of police to conduct strip searches are found in the Law Enforcement Powers and Responsibilities Act 2002 (NSW) (LEPRA).

When can police conduct a search for illegal drugs?

A police officer may conduct a search without a warrant if he or she suspects on reasonable grounds that a person has an illegal drug in his or her possession. A ‘reasonable suspicion’ is more than just a possibility. Simply being at a music festival is not enough for a police officer to hold a reasonable suspicion that a person is carrying drugs.

When can police conduct a strip search?

A police officer can only carry out a strip search of a person outside of a police station (for example, at a music festival) where the police officer reasonably suspects that it is necessary to conduct a strip search, and that the ‘seriousness and urgency of the circumstances’ make a strip search necessary. The requirement of urgency provides a high threshold.

Police officers gave evidence during the Law Enforcement Conduct Commission Inquiry that they were trained in the rules surrounding strip searches, but were left to work out for themselves what circumstances might be urgent enough to justify a strip search. In fact, one officer who conducted searches at the 2018 Splendour in the Grass admitted that he could not personally think of any urgent reason to conduct a strip search at a music festival.

A recent report by UNSW has also criticised NSW Police for ‘not turning their minds to the legal requirements for conducting strip searches’. You can read more about the report here.

What rules must the police abide by when conducting a strip search?

The police must preserve your privacy and dignity during a strip search. Officers must:

  • Tell you why it is necessary to remove your clothing,
  • Not ask you to remove more clothing than reasonably necessary for the search,
  • Conduct the search in a way that provides reasonable privacy,
  • Not search your genital area unless necessary for the purposes of the search, and
  • Conduct the least invasive search practicable.

 

Any strip search of a person under the age of 18 must be conducted in the presence of their parent or guardian or another person who is capable of representing the minor’s interests. A strip search cannot be conducted on a person under the age of 10 years.

Importantly, a strip search is visual only. It cannot involve a search of bodily cavities or an examination of your body by touch.

What happens if police do not comply with these requirements?

A strip search that does not comply with the rules of LEPRA may be unlawful. Evidence found as a result of an unlawful search may be excluded in court.

What should I do if police want to search me?

Police must ask for your cooperation when conducting a strip search. You may ask the police officer for their name and the station where they work, as well as why the officer wants to conduct the strip search.

If you believe that police don’t have reasonable grounds to search you, you can tell the officer that you do not consent and have this recorded. If you give the police your consent, they don’t have to prove that they had reasonable grounds to search you.

Even if you do not consent, you may be charged with the offence of hindering police if you resist the search in any way, which can carry a penalty of imprisonment or a fine. Therefore, it is best to remain calm and cooperate with police.

Always seek legal advice before consenting to a police interview or speaking further with police.

If you have concerns about the legality of a police search, or have been charged as a result of a police search, you can contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

 

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