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April 10, 2021

RLC calls for strip-search law amendments

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Sydney’s Redfern Legal Centre (RLC) is calling for immediate amendments to NSW strip-search laws as research reveals an almost twentyfold increase in strip searches in almost 12 years.

The Rethinking Strip Searches by NSW Police report, commissioned by RLC, and prepared by UNSW Law academics Dr Michael Grewcock and Dr Vicki Sentas, says that the law is failing to provide police with clear guidance on conducting this invasive search procedure.

Most invasive form of personal search

Dr Sentas says a strip search is the most invasive form of personal search available to police without a court order. ‘Over the past decade, we have seen the number of strip searches continue to rise. Our findings reveal such searches are doing little to tackle serious drug crime.’

Dr Sentas says the lack of publicly available data on strip searches, and on the exercise of police powers more broadly, is a major barrier to public accountability.  ‘NSW Police are able to record and release comprehensive data on the use of strip searches, and it is in the public interest that they do so immediately, as a first step to achieving greater transparency and guidance to protect the public,’ she says.

Searches reveal drugs and weapons

A New South Wales Police spokesperson said that the NSW Police Force is responsible for enforcing legislation on drug and weapon possession and supply. ‘Police officers do not enjoy carrying out strip searches, but it is a power that has been entrusted to us and searches reveal drugs and weapons,’ they said.

Police say that in 2018 alone, police detected a firearm and 93 knives or sharp cutting instruments, as well as illicit drugs on 1553 occasions during field strip searches.

‘People who are trying to hide such items frequently secrete them in private places, and the only way to locate them is by a strip search, which may involve asking the person to squat.

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‘During this season’s music festivals, police found many persons had secreted trafficable quantities of illegal drugs in their underwear or internally, including an 18-year-old woman who internally concealed 394 MDMA pills. When police initially form a reasonable suspicion, they cannot know the quantity of drugs in a person’s possession and whether they are for personal use or for the purpose of supply.

‘The use of drug-detection dogs in operational policing is a highly specialised field and NSWPF is committed to ensuring that our training is the best it can be and that the use of drug-detection dogs reflects world’s best practise.

‘Police are trained not to rely solely on a drug-detection dog indication when they exercise their search powers.’

Opportunities for law reform

The first report of its kind in Australia, Rethinking Strip Searches by NSW Police looks at the operation of strip search laws across the country, exploring concerns around safeguards and transparency, and highlighting opportunities for law reform.

The report finds that strip searches were used 277 times in the 12 months to 30 November 2006 compared to 5483 in the 12 months to 30 June 2018, an almost twentyfold increase in less than 12 years.

It goes on to say that police suspicion that a person possesses prohibited drugs accounts for 91% of all recorded reasons why police conduct a strip search (2018-19 financial year).

Unlawful strip searches are widespread

Some of the findings were that: unlawful strip searches are widespread; drug detection dogs may be propelling unnecessary strip searches; only 30% of strip searches in the field in the 2017/18 financial year resulted in a criminal charge; less than 16.5% of all charges arising from strip searches result in charges of drug supply; almost 82% of all charges are for personal possession of a prohibited drug; and, almost half (45%) of all recorded strip searches in the 2017/18 financial year were of young people aged 25 years and younger.

Mental health was also considered in the report which says that Aboriginal and Torres Strait Islander people accounted for 10% of all recorded strip searches in the field and 22% of all recorded strip searches in custody. Of concern is that the law is failing to protect children from being searched and that strip searches can cause significant psycho-social harm.

Majority of person searches are not strip searches

Police say that the majority of person searches carried out by police are not strip searches.

‘A strip search can only be undertaken when a police officer has the state of mind required by LEPRA,’ says a spokesperson. ‘The legislation contains safeguards to preserve the privacy and dignity of members of the public.

‘There are additional safeguards for children and vulnerable people with which police must comply; officers are trained to deal with the public in a respectful and empathetic manner.’

The NSW Police Force Person Search Manual

The NSW Police Force Person Search Manual is the principal document for the carrying out of person searches. It provides guidance as to when and how personal searches must be carried out, as informed by legislation, the common law, and NSWPF policy.

‘Training for police in how to undertake a person search occurs at the Police Academy and is reinforced in a number of forums throughout an officer’s career.’

RLC solicitor Samantha Lee says the extraordinary rise in strip searches signifies the law is not being applied as parliament intended – as a last resort.  ‘Strip searches are an invasive, humiliating and harmful process, and as such, should be only used in exceptional circumstances when no other alternative is available,’ says Ms Lee.

‘Updating police education and training material will not suffice. Clear guidance about police strip search procedure needs to be driven by clear and rigorous law. Without law reform, we will continue to see insufficient training and poorly informed decision-making from police conducting strip searches.’

RLC recommendations

The recommendations arising from the report include that:

·       The law must be clearer about what, when and how police should conduct a strip search

·       A strip search should be conducted in accordance with child protection principles

·       Strip searches of children in the field should be prohibited unless permission is obtained through a court order

·       The law should be clear that police cannot ever search genitals or breasts

·       Examples of “private places” for strip searches should be clearly defined

You can view the Rethinking Strip Searches by NSW Police report here.

Anyone who feels they have been unlawfully searched, or feels an officer has not acted appropriately, should report their concerns to the senior officer at that location in the first instance and, if not satisfied, they can complain to their local police station or online here.

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