Police Powers to Search in New South Wales

Image credit: YULIYAPHOTO

Poppy Morandin.

 

NSW Police have removed their contentious target system for carrying out personal searches and move-on orders, following controversy and heightened scrutiny.

Previously, the use of numerical goals to monitor performance across police area commands attracted criticism from various legal bodies and activists as enabling abuses of powers.

In the 2020-21 period, officers had quotas to conduct more than 240,000 personal searches, issue nearly 110,000 move-on directions and detect 305,000 crimes.

This was despite a fall in crime rates across most categories between 2019 and 2021.

Furthermore, even despite the pandemic, police persisted with the quota strategy despite crime rates dipping to historical lows in some categories and remaining largely stable in others.

Search quotas were increased by 1.8 per cent in the 2020-21 financial year, compared to 2019-20.

However, these quotas were area-specific, meaning some parts of the state went up by far more.

Quotas in the Broken Hill, Campbelltown City, Mount Druitt, and Kings Cross area commands were notably higher than on the North Shore.

Notably, in the Nepean area command police were given targets to conduct 21 per cent more personal searches 2020-21 compared to 2019-20, while incidents fell by 24 per cent.

“Requiring police to conduct invasive searches and move on orders to meet quotas was always wrong – but particularly so as we entered a pandemic. It’s why we called for them to be scrapped, and we have now succeeded!” commented Greens MP, David Shoebridge.

According to NSW Police, the targets were removed for the 2021-22 financial year to align with the commissioner’s priorities for “prevention-focused policing”.

No further comment was provided by them in regard to the practice.

“Our office exposed the use of quotas for police powers including personal searches and move on powers – powers that really should only be used where there is a need to, not just to meet arbitrary KPIs.

“These targets were an obvious attempt by senior police to justify increasing budgets and creeping powers – it’s time to wind back this excessive resourcing.” summarised Mr Shoebridge.

Police Powers to Search in New South Wales

The use of police powers, including search powers, are required to be done in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Search powers without a warrant are largely contained within parts 4 and 15.

Pursuant to section 21, a police officer may, without a warrant, stop, search, and detain a person, if they suspect on reasonable grounds that a person possesses or controls something:

  • stolen or otherwise unlawfully obtained,
  • anything used or intended to be used in or in connection with the commission of a relevant offence,
  • considered a dangerous article in a public place that is being or was used in or in connection with the commission of a relevant offence,
  • considered a ‘prohibited drug’ or ‘prohibited plant’ in contravention of the Drug Misuse and Trafficking Act 1985 (NSW).

Subsequent to this, an officer is then allowed to seize and detain anything in the possession of or under the control of the person, if the items are connected to any of the above factors.

If searching someone pursuant to this section, and an officer suspects on reasonable grounds that the person being searched is concealing something in the mouth or hair, they may direct the person to:

  • to open their mouth to enable it to be searched, or
  • to shake, or otherwise move, their hair.

This provision does not authorise a police officer to forcibly open a person’s mouth.

However, failing or refusing to comply with such a direction, without reasonable excuse, attracts a maximum penalty of a $550 fine.

There are two main types of searches a police officer may carry out on a person:

  1. A ‘general search’
  2. A ‘strip search’.

Pursuant to section 30, in conducting a general search, a police officer may:

  • quickly run their hands over the person’s outer clothing,
  • require the person to remove their coat/jacket or similar article of clothing and any gloves, shoes, socks, and hat, (however, they cannot direct the removal of the person’s clothes),
  • examine anything in the possession of the person,
  • pass an electronic metal detection device over or in close proximity to the person’s outer clothing or anything removed from the person.

However, a ‘strip search’ is a much more invasive power, noting it involves the person removing all of their clothes.

Pursuant to section 33, in conducting a strip search, a police officer should conduct the search in a private area, and not in the presence or view of a person who is of the opposite sex to the person being searched or whose presence is not necessary for the purposes of the search.

These factors must be abided by where reasonably practicable in the circumstances.

Furthermore, a strip search must not involve:

  • a search of a person’s body cavities or an examination of the body by touch,
  • the removal of more clothes or more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

A distinction is made between strip searches at ‘a police station or other place of detention’ and in any other place.

If at a police station or other place of detention, an officer can strip search you if they suspect on reasonable grounds that the strip search is necessary for the purposes of the search, as outlined in section 31(a).

If carried out in any place other than a police station or place of detention, an officer must suspect on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make it necessary, according to section 31(b).

Whether a situation is ‘serious and urgent’ will depend on the facts of the situation and indicates that police must have a legitimate answer as to how the relevant situation fulfills this.

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