The power of police officers to conduct strip searches in New South Wales is governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (commonly referred to as LEPRA) as per:
- Section 31 – Strip Searches
- Section 32 – Preservation of privacy and dignity during search
- Section 33 – Rules for conduct of strip searches
- Section 34 – No strip searches of children under 10 years
- Section 34A – Searches carried out with consent.
When ever a police officer seeks to apply a search power they must apply ‘safeguards’ relating to the exercise of those powers. These safeguards are found under Part 15 of LEPRA or sections 201 to 204B of the Act.
Just as with the ordinary power to search (as per section 21 of LEPRA) police must suspect on reasonable grounds that the search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.
The term to ‘suspect on reasonable grounds’ means that the police officers when exercising their search powers, must ‘ground’ their suspicion on a factual basis: R v Rondo [2001] NSWCCA 540 at [53].
It has also been held that reasonable suspicion is less than a belief but more than a suspicion.
It is a subjective and objective test. Therefore, the police officer must be able to demonstrate what was operating in their mind at the time (the subjective factors, i.e. the information they were considering at the time) were factually based. Those ‘facts’ must also be capable of being reasonably suspected in the mind of the reasonable person (the objective factor).
That means that any person, who is arguably not a police officer, would also suspect the person had any of the things on them listed in the power to search. For example, in section 21 of LEPRA, a police officer may stop, search, detain and seize things without a warrant a person they suspect on reasonable grounds has anything in their possession or under control, such as anything that is stolen or otherwise unlawfully obtained, dangerous articles, prohibited plant or drugs, or anything used in the commission of a relevant offence.
It is well settled that a reasonable suspicion will not only be created by factors such as:
- The fact the person is a high crime area or the time of the day: R v Fortescue, Michael [2010] NSWDC 272; Attalla v State of NSW [2018] NSWDC 190 (Attalla).
- A person refusing to cooperate with police or lawfully resisting a search: Streat v Bauer; Streat v Blanco (Unreported, NSWSC, 16 March 1998); Le v State of New South Wales [2017] NSWDC 38
- Staring, avoiding eye contact or looking nervous: Attalla; R v Yana Orm[2011] NSWDC 26, [55].
- The existence of a criminal record on its own: Moses v State of NSW (No. 3)[2010] NSWDC 243.
- Belonging to a particular class of persons: Le v State of New South Wales[2017] NSWDC 38
Similarly, simply waiting in line with your hands in your pocket to enter a music festival would not be sufficient to ground a reasonable suspicion.
What is a strip search?
A strip search is a search that requires the person to remove all their clothing and permit an examination of the person’s body (but not of the person’s body cavities) and of the clothes.
Where can strip searches be conducted?
Strip searches can be conducted anywhere, such as at a police station, an authorised place of detention, or any other place: section 31(a) and (b) of LEPRA.
When can strip searches be conducted?
The test is when the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or that the seriousness and urgency of the circumstances make the strip search necessary.
There is no definition of the words ‘necessary’ or ‘seriousness and urgency of the circumstances’, but conducting a strip search on a person should be one of last resort and not an automatic go-to unless it is evident that there is an urgency to conduct the strip search in the circumstances.
What the police must tell you before conducting a strip search
These are often referred to as the ‘safeguards’ which are outlined in Part 15 of LEPRA:
- Evidence that the police officer is a police officer (unless they are in uniform)
- The name of the police officer and their place of duty
- The reason for the exercise of the power.
If the police fail to provide the above information (except for the failure to tell their name and place of duty) this may render the exercise of the power unlawful.
The police officer exercising the power must also give a warning that the person subject of the power must comply with the direction, requirement, or request.
Your Right to Privacy and Dignity
Police must preserve your privacy and dignity as much as possible: sections 32 and 33.
They must:
- Inform the person if they will be required to remove their clothes.
- Inform them why it is necessary to take off their clothes.
- As the person being searched for their cooperation
- Conduct the search in a way that provides reasonable privacy and is conducted as quickly as reasonably practicable.
- Conduct the least invasive kind of search practicable.
- Not search the genital area of the person or the person’s breasts unless they suspect on reasonable grounds that it is necessary to do so for the purpose of the search.
- The police officer must be of the same sex as the person being searched.
- Not perform the search in the presence of another person of the opposite sex to the person being searched.
- Only conduct the search in the presence or view of a person who is necessary for the purpose of the search.
- The person must be allowed to dress as soon as the search is finished.
Can police touch me during the strip search?
No. Police can only visually inspect and only as much as reasonably necessary: section 33(4) and (6).
Can I be officially questioned in relation to the investigation during the strip search?
No, a person who is being strip search is not to be officially questioned but that does not prevent questioning in relation to issues of personal safety associated with the search: section 32(8) and (8A).
Can I have a support person with me at the time of the strip search?
Yes, you can have a parent, guardian, or personal representative with you at the time unless it is not practicable in the circumstances.
If the person is at least 10 but under 18 years of age, or has impaired intellectual functioning, the search must be conducted in the presence of a parent or guardian or if that is not acceptable to the person, in the presence of a person who is not a police officer and who is capable of representing the interest of the person being searched and is acceptable to that person.
However, police can disregard the above requirement if they suspect on reasonable grounds that a delay in the search would conceal or destroy evidence or an immediate search is necessary to protect the safety of the person: section 33(3A).
Police are not allowed to conduct a strip search on a person under 10 years of age: section 34.
Police must make a record of the reasons they decided to proceed without a parent or guardian present: section 33(3A).
What can I do if I feel my rights have been violated?
Make a complaint to directly to the Commander of the Police Station that the officers belong.
- Obtain the name (or registered number), rank and station of the police officers involved.
- Make sure to note the time, date, and location of where the incident occurred.
- Prepare a statement and supporting documents (if any) and write to the Commander of the Police Area Command outlining the facts of the matter and the alleged misconduct you are complaining about.
- All complaints about police officers must be in writing; otherwise they will not be triaged and investigated.
Make a complaint directly to the Law Enforcement Conduct Commission
The Law Enforcement Conduct Commission (LECC) is the independent body that oversees and investigates officer and agency misconduct and maladministration of the New South Wales Police Force.
You can make a complaint directly through the LECC online form here
What to do next?
If you have been arrested and charged with an offence arising from a police search call Richard McDonald of McDonald Law on (02) 8824 4736 or email us for an appointment at [email protected]. We will be able to assist you, provide you with honest feedback, and give you practical options to plan, prepare and resolve your case.