The Law Enforcement Conduct Commission has handed down five reports into allegations of illegal strip searches by NSW Police. In each of these reports, the strip searches investigated were determined to be undertaken unlawfully. The reports uncovered a lack of knowledge of the law governing searches.
These included the unlawful strip search of a 16-year-old Indigenous boy in the street of a regional town, and later in the garage of a local police station in November 2018 and the search of a 16-year-old girl required to take off her clothes, without a parent or guardian present, at Splendour in the Grass music festival in Byron Bay in 2018.
Therefore, it is important to know the law in NSW regarding Strip Search Powers.
The Law about Police Strip Search Powers
Rules surrounding the powers of police to conduct strip searches are found in the Law Enforcement Powers and Responsibilities Act 2002 (NSW) (LEPRA).
What is a strip search?
A strip search is when a police officer asks you to remove some or all of your clothes and visually examines your body. They may also search your clothes and bags.
When can police conduct a search?
Under section 21 of LEPRA, a police officer may conduct a search without a warrant if he or she suspects on reasonable grounds that you have something illegal in your possession, such as illegal drugs, a weapon, or something stolen.
A ‘reasonable suspicion’ is more than just a possibility. For example, simply being at a music festival is not enough for a police officer to hold a reasonable suspicion that a person is carrying drugs – there must be a factual basis for the suspicion. A ‘reasonable suspicion’ would be formed, for example, if police see you giving someone a package in exchange for money.
During a search, a police officer may:
- Quickly run his or her hands over your outer clothing;
- Require you to remove your outer clothing, such as coat or jacket or similar article of clothing and any gloves, shoes, socks and hat (but not, except in the case of a strip search, all of your clothes);
- Examine anything in your possession, such as a bag.
- Pass an electronic metal detection device over or in close proximity to your outer clothing or anything removed from the person;
- Do any other thing authorised by this Act for the purposes of the search.
When can police conduct a strip search?
Section 31 of LEPRA outlines that 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.
What rules must the police abide by when conducting a strip search?
The police must preserve your privacy and dignity during a strip search, with the rule governing the conduct of strip-searched outlined in section 33 of LEPRA.
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 the 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. It may also lead to the officers who conducted the search being referred to the Law Enforcement Conduct Commission (LECC) for investigation.
What should I do if the 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 do not 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 do not 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 the 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.
Photo: ABC
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
Reviewed By
Drew Hamilton
Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.
