NSW Police Facing Class Action Over Strip Search Practices

By Poppy Morandin & Jimmy Singh.

Redfern Legal Centre in collaboration with Slater and Gordon have recently announced their intention to mount a class action against NSW Police in relation to the unlawful utilisation of search powers, particularly strip searches.

They seek to obtain compensation for the supposed thousands of individuals that have been subject to unlawful invasive searches since 2014.

“By seeking long overdue justice for people who have been unlawfully searched, this class action is also an important step toward achieving change to prevent more traumatic and unnecessary strip searches in NSW,” said Redfern Legal Centre police accountability solicitor Samantha Lee.

Slater and Gordon Senior Associate Ebony Birchall explained in their media statement that, “by grouping these claims into potential class actions, people can stand together and demand change.”

“Unlawful strip searches are eroding community confidence in NSW Police, and people are entitled to expect that police will follow the law. There are systemic problems such as inadequate police procedure manuals which are providing incorrect instruction to officers on how to lawfully conduct searches.”

Earlier this year, an inquiry into police misuse of strip searches on minors by the Law Enforcement Conduct Commission was closed prematurely after the government terminated the chief commissioner, Michael Adams.

Before its closure, it heard evidence from a 16-year-old girl who was forced to squat and observed from ‘underneath’ by an officer and a 15-year-old boy who was crudely told to show his ‘gooch’.

Such cases were among the many children strip searched without a parent or guardian present, in contravention of Section 33(3) of the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) which stipulates that a child who is at least 10 years of age but under 18 years of age should have, at the very least, someone present who is not a police officer, whose presence is acceptable to the minor and is ‘capable of representing the interests of the person being searched’.

Strip searches have been found to have long lasting and traumatic impacts on those subjected to the practice, which is incredibly concerning considering that in 62.65% of searches nothing is found and that the frequency of strip searches has increased by 46.8% from 2014 -2018.

“Saturation policing with sniffer dogs at music festivals and railway stations or forcing teenagers to remove their clothes in the back of police vans does not make the community safer,” said Dr Vicki Sentas.

As the increase in strip searches has been correlated to the use of drug detection dogs, it is important to remember that a drug dog indication alone is not ‘reasonable grounds’ for a search.

NSW Police Standard Operating Procedure manual emphasises this point, however it is reported that in the field, such assertion is often ignored.

“2019 saw a pretty consistent state-wide campaign that was critiquing police’s abuse of their discretionary search powers and their drug dog powers and I think that campaign will only grow stronger as 2020 marches on.” said David Shoebridge, NSW Greens MP and founder of Sniff-Off.

Under the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) police can only perform a strip search if it is ‘serious and urgent’, noting they are required to consider the least invasive kind of search practicable in the circumstances, as confirmed in Fromberg [2017] NSWDC 259.

If police wish to strip search you they must conduct it in a private area where practicable, tell you why it is necessary and ensure an officer of the same gender conducts the search, in the presence of only those necessary for the purposes of the search.

While conducting the strip search, police cannot make individuals squat and cough or remove a tampon as this effectively enables a cavity search, a forensic procedure that must be carried out by a medical professional under Court Order or authorised officer pursuant to Section 5 of the Crimes (Forensic Procedures) Act 2000 (NSW).

Have questions about the law on strip searches? Call our experienced criminal lawyers in Sydney today.

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