Introduction

Over the past two decades, strip searches by police in New South Wales have become more frequent, prompting concerns about privacy and the extent of police authority. Being aware of your legal rights and understanding the limitations of what law enforcement officers can do is crucial. This knowledge empowers you to maintain your autonomy and composure during these uncomfortable and intrusive encounters, and it’s something everyone should get their head around.

When Can Police Conduct a Strip Search in New South Wales?

At Police Stations or Detention Facilities

Police officers in New South Wales can conduct a strip search at police stations or other places of detention if they suspect on reasonable grounds that the search is necessary for the purposes of the investigation or maintaining safety. In these locations, the seriousness and urgency of the circumstances do not need to be considered: reasonable suspicion is the sole authority. It should be noted that reasonable suspicion is less than a reasonable belief, but must be more than a possibility. This means there must be factual, objective evidence that suggests a reason to search, and not a “hunch”. Importantly, the presence or indications of a sniffer dog alone do not constitute reasonable grounds.

In Other Locations Requiring Seriousness and Urgency

Outside of police stations and detention facilities, police may conduct strip searches only if they have reasonable grounds to suspect that a strip search is necessary and that the circumstances are serious and urgent enough to warrant the search. The term “seriousness and urgency of the circumstances” is not explicitly defined in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), and is determined on a case-by-case basis. For example, if police believe an individual may be concealing a weapon or illicit substances that pose an immediate threat to public safety, a strip search may be justified.

In these situations, officers must assess the specific context and ensure that both the reasonable grounds and the current circumstances necessitate a strip search. Without satisfying both criteria, conducting a strip search in public areas or non-detention settings, such as a music festival, would be considered unlawful.

Legal Limitations on Strip Searches and Police Officer Conduct

This section outlines the legal constraints and the specific powers granted to police when conducting strip searches in NSW, ensuring the protection of individuals’ privacy and dignity.

Preservation of Privacy and Dignity

Police must conduct strip searches in a manner that respects an individual’s privacy and dignity. This includes informing the person of why the search must be conducted, and whether clothing will be removed. Further, they must ask for the person’s cooperation throughout the process, and conduct the search as quickly as reasonably practicable, and with the least invasive approach in order to provide the person with reasonable privacy. To additionally protect the dignity of the person being searched, the police officer conducting the search must be of the same sex. If no such officer is available, the power to search must be delegated to a suitable candidate of the same sex.

No Touching or Excessive Inspection

During a strip search, police officers are prohibited from touching the individual or conducting body cavity searches. This prohibition on cavity searches also prohibits asking a person to squat and cough, or anything intended to coax something out of a cavity. Additionally, the visual inspection should not exceed what is reasonably necessary for the search, and the individual must be allowed to dress as soon as it is over. If clothing must be seized, a reasonable replacement must be provided.

Private Area Requirements 

Strip searches must be performed in private areas to protect the individual’s privacy. Searches should not be conducted in the presence or view of a person of the opposite sex or unnecessary bystanders. The location needs to provide sufficient privacy to shield the person from public view and should be a secure space for the search process.

Additional Rules for Young Persons and Mentally Vulnerable

When strip searching individuals aged 10-18 or those with impaired intellectual functioning, specific protocols must be followed. This includes having a parent or guardian present, or another appropriate representative if a guardian is unavailable. These extra precautions are in place to protect those considered more vulnerable and ensure they have adequate support during the search. It must be noted that police can forego these protocols if, on reasonable grounds, they suspect delaying the search would likely conceal or destroy evidence, or if an immediate search is necessary to protect a person’s safety. In such a case, the officer must make a record of their reasons for doing so.

Prohibited Types of Strip Searches

Certain practices are explicitly forbidden during strip searches. For example, a police officer is not allowed to search the genital area without reasonable grounds. The same prohibition applies to searching the breasts of a female or transgender person who identifies as female. Furthermore, police are not allowed to forcibly open a person’s mouth if they suspect something is concealed there, although, under LEPRA Section 21A, they can ask a person to open their mouth or shake their hair. It is also prohibited for an officer to question anyone while they are being strip searched (unless it relates to personal safety), and must not search a child under 10 years old under any circumstance. These prohibitions rigidly restrict police, aiming to negate a power imbalance between police and those being searched.

Unlawful Searches

An unlawful strip search by police occurs when the procedure violates established legal guidelines. In addition to the aforementioned limitations, these guidelines importantly include those under LEPRA section 202, such as: not providing evidence that they are a police officer (if the officer is not in police uniform), not providing their name and place of duty, or not clearly stating the reason for the search. While these provisions are vital for a legitimate search, it should be noted that considering LEPRA section 204A(1), breaching them would likely be insufficient on its own to render the search invalid and unlawful.

Your Rights During a Strip Search in NSW

To Exercise Your Right to Silence

You have the right to remain silent during the search, which means you do not have to say anything or answer any police questioning (unless they relate to personal safety). Exercising this right helps protect you from providing information that could be used against you in court. To assert this right without hindering police duties, calmly inform the officer by saying, “I do not wish to answer any questions without my lawyer present”.

To Refuse/Not Consent to a Strip Search

You have the right to refuse a strip search if it does not meet the legal requirements. To exercise this right, clearly state your refusal by saying, “I do not consent to this strip search.” However, be aware that if the strip search is conducted lawfully under the LEPRA, refusal may result in additional charges such as resisting or hindering police under the Crimes Act 1900 (NSW).

Conclusion

Understanding your strip search rights in New South Wales is essential in protecting your privacy and ensuring that law enforcement adheres to legal standards. Over the past two decades, the number of strip searches conducted by NSW police has increased significantly, often in contravention of legal requirements. Police can only conduct strip searches under specific circumstances outlined in the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), which necessitates reasonable grounds and, in some cases, the seriousness and urgency of the circumstances. Additionally, there are strict legal limitations designed to preserve an individual’s dignity and privacy during such searches. Being strip-searched is inherently uncomfortable and vulnerable, so it is necessary to be well-versed in the powers and rights you are entitled to. This knowledge, combined with experienced legal representation, can help reduce the stress surrounding strip searches.

Frequently Asked Questions