Police Strip Search Laws in NSW: Without Warrant

Poppy Morandin and Jimmy Singh.

 

After a two-year inquiry, the NSW Police ‘watchdog’ has released a report detailing how the lawfulness of current strip-searching practices is ‘debatable’ and that a lack of clarity has led to officers using the power without legal justification.

The Law Enforcement Conduct Commission’s 167-page final report made 25 recommendations.

“Careful scrutiny of police strip search practices is crucial. Strip searches are an important tool for police in the detection of dangerous concealed items, or evidence of serious offences. However, they are also extremely intrusive.” said Chief Commissioner, the Reginald Blanch AM QC, and Commissioner for Integrity, the Hon Lea Drake.

Predominantly, the recommendations aim to prompt the clarification and improvement of instructions provided to officers, to ensure that strip searches are conducted lawfully.

Ambiguity has been found regarding whether police are legally permitted to require someone to squat, bend over, part their buttock cheeks or move genitalia or breasts during a strip search.

Furthermore, the report states that the threshold that must be satisfied before police can strip search a person in the field, within ‘seriousness and urgency’, should be clarified.

“Resolving this ambiguity is essential, not just for the officers that may be faced with this question in the execution of their duties, but also for proper oversight of complaints made by members of the public about police actions.” said Chief Commissioner Blanch and Commissioner Drake.

Concerns were expressed at the fact that there was often a failure to provide reasons to warrant the invasive procedure.

Furthermore, strip searches are conducted disproportionately on Aboriginal and Torres Strait Islanders, who accounted for 18 per cent of all searches.

A large proportion of the Commission’s public hearings focused on police strip searching persons at music festivals.

Specific recommendations were made in relation to their use at music festivals, with the report stating that it should be made clear to officers “that general intelligence about drug use/offences and medical treatments…at previous events is not by itself sufficient to justify a suspicion that the seriousness and urgency of the circumstances make a strip search of an individual necessary.”

In particular, police officers were often unaware of the legislative requirements governing strip searches of young people.

Dr Pulman noted that being strip searched “may have lasting impacts on how young people view and subsequently interact with law enforcement”.

Samantha Lee, solicitor with Redfern Legal Centre’s police accountability practice, said: “The LECC has gone to great lengths to understand the impact of police strip search policy in NSW. It has consulted far and wide and sought the opinion of both police officers and complainants.

“The result is a report that confirms that the widespread practice of police strip searches in NSW is causing significant harm, and that police are exercising their strip search powers in a range of circumstances which may well be unlawful. It also confirms that the law lacks clarity about the circumstances in which police can conduct a strip search.” she continued.

Recently, the NSW Greens have introduced a bill into Parliament aiming to wind back police powers, with a specific focus on strip searches and sniffer dogs.

The main aims of Law Enforcement (Powers and Responsibilities) Amendment (Drug Detection Dogs and Strip Searches) Bill 2020 are to prohibit the use of sniffer dogs in carrying out drug detection operations without a warrant, to limit the circumstances in which strip searches may be carried out, and to prohibit strip searches of children who are less than 16 years old.

The bill would amend the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which is one of the main pieces of legislation that regulates the powers of NSW Police.

David Shoebridge of the NSW Greens presented the bill to the parliament.

“We thank all these people who have shared their stories. We thank those courageous people who have stood up in public and told their stories. It’s not too much to ask to be safe from police. This bill is for you.” he announced.

The bill would prohibit the imposition of quotas or targets relating to the number of personal searches carried out by police officers.

It would also explicitly prohibit officers directing individuals to squat, cough or bend over.

Police Strip Search Laws in NSW: Without Warrant

Our criminal lawyers Parramatta branch outline the law on this specific area of law below.

There are two main types of a police search, namely, general search and strip search, under the Law Enforcement Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).

According to section 30 of LEPRA, a general search involves a police officer being permitted to:

  • Quickly run his/he hands over the person’s outer clothing
  • Require the person to remove his/her coat/jacket, or similar article of clothing and any gloves, socks, shoes, or hat
  • Examine anything in the person’s possession
  • Pass an electronic metal detector over or in close proximity to the person’s outer clothing or anything removed from the person

A strip search, on the other hand, according to section 31 of LEPRA, permits a police officer to require a person to remove all their clothing, with the following restrictions and safeguards according to section 33:

  • As far as is reasonably practicable in the circumstances, conduct it in a private area, not to conduct it in the presence or view of a person who’s of the opposite sex, not to conduct it in the presence or view of a person whose presence isn’t necessary for the purposes of the search.
  • If the person being searched doesn’t object, and if it’s reasonably practicable in the circumstances, the person’s parent, guardian or personal representative may be present during the search.
  • A child aged under 10 is not to be strip searched.
  • A child aged at least 10, but less than 18, or a person who’s intellectually impaired can be strip searched in the presence of a parent or guardian, or if that’s not acceptable to the person, in the presence of someone who is not a police officer and who’s capable of representing the interests of the person and whose presence is acceptable to that person. (This will not apply if the officer suspects on reasonable grounds that delaying the search is likely to cause evidence to be concealed or destroyed or an immediate search is necessary to protect the safety of the person). If police decide to conduct the strip search to a child without a parent or guardian etc
  • The strip search must not involve searching a person’s body cavities or examination of the body by touching.
  • A strip search must not involve removing more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
  • A strip search may be conducted in presence of a medical practitioner of the opposite sex if the person being searched has no objection.

A police officer may only be permitted to conduct a strip search in compliance with the above safeguards if the officer holds a reasonable suspicion that the strip search is both necessary for purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary– if the strip search being carried out in a place other than a police station or place of detention.

In the event a strip search is being carried out by police at a police station or other place of detention, an officer may be permitted to conduct the strip search on a person if the officer suspects on reasonable grounds that it is necessary for the purposes of the search.

Further safeguards must also be complied with by police when attempting to exercise the power to strip search a person. These safeguards are mainly concerned with the privacy and dignity during the search under section 32 of LEPRA. Accordingly, an officer must as far as is reasonably practicable in the circumstances:

  • Inform the person to be searched that he/she will be required to remove clothing during the search, with reason(s) as to why it is necessary to do so.
  • Ask for the person’s co-operation.
  • Conduct the search in a way that provides reasonable privacy for the person, and conduct the search as quickly as is reasonably practicable.
  • Conduct the least invasive kind of search practicable in the circumstances (Fromberg [2017] NSWDC 259).
  • Must not search the person’s genital area or breasts unless the officer suspects on reasonable grounds that it’s necessary to do so for the purposes of the search.
  • Conduct the search by a police officer of the same sex.
  • Must not search a person while the person is being questioned (this does not includes questions concerning issues of personal safety associated with the search).
  • Allow the person being search to dress as soon as the search concludes.

If the clothes are sized by police because of the search, the officer must ensure that the person is left with or provided reasonably appropriate clothing.

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