Broad legal issues in police strip searches a ‘serious concern’

By Naomi Neilson|17 February 2020

A review of strip search laws has found there is a “widespread lack of knowledge” from operational police as to the legal prerequisites for valid searches and that any policies introduced late in 2019 should be treated as interim until further improvements.

The Law Enforcement Conduct Commission said it has ongoing and serious concerns in light of an increased strip-search practice, particularly around the lack of instructions to police and the broader legal issues in revised policies that remain unsolved.

“The incidence of unlawful or inappropriate use of strip search powers, particularly for young people, has become increasingly evident to the commission in the course of its investigations and oversight,” the report’s foreword noted.

“These issues are of significant public interest and will be subject of further analysis in part of the commission’s inquiry into strip search practices. We understand the NSW Police Force (NSWPF) does not propose to reissue the new policies until it gathers its feedback from operational police following the current music festival season.”

In September 2019, the commission advised the NSWPF on the draft report into strip searches. The police force implemented two new policies dealing with searches which looked at conduct in the field and for persons in custody. While welcoming the policies, the commission still has serious concerns about the ignored legal issues.

The “significant gaps” it pointed out in September and its report were the issues to do with police conducting searches by consent and how that consent is obtained. It noted legal issues in asking persons to move a part of their body to facilitate a search, uses of force when conducting a search and the provision of support to vulnerable people.

The commission also raised questions to the relationship between strip search powers in the Law Enforcement (Powers and Responsibilities) Act 2002 and powers provided to police by the Crimes (Forensic Procedures) Act 2000.

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“The commission considers that until these difficult issues are addressed, the revised policies and related training and education as they presently stand must be regarded as interim only and in need of substantial further explication or revision,” it noted.

Data obtained under Freedom of Information (FOI) requests by The Guardian last year found there had been 3,919 searches by police on women in NSW. Women who were aged 25 and under accounted for almost half the searches, while data found 10 people under the age of 15 had undergone strip searches since 2016.

More recent FOI data by The Sydney Morning Herald found NSW police aimed to have undertaken 241,632 searches in the financial year ending June 2019. The next target decreases slightly to 237,089 but maintains encouragement for police to search.

The Aboriginal Legal Service (ALS) welcomed the release of the report and called for further legislative reform and culture change to address the necessary safeguards of Aboriginal people, who are “too often the target of these invasive practices”.

A study by the UNSW identified a concern that police conduct strip searches and drug detection dog operations in locations with a higher Indigenous population. It was reported that “people at Redfern train station (adjacent to a sizeable Indigenous community) [were] 6.5 times more likely to be searched than at Central or Kings Cross stations, even though Redfern searches are less likely to identify drugs”.

Principal legal officer Nadine Miles said: “We welcome the commission’s investigation into this deeply intrusive, humiliating and disempowering practice. The excessive use of strip-searching is causing significant emotional and psychological harm.”

The ALS is calling on the NSW government to support critical legislative reform which would increase police accountability and transparency “in order to address systematic issues with strip searches and other policing practices”.

Ms Miles said ALS recently represented a 14-year-old boy who had his pants forcibly removed with police retrieving his $2 coin he wanted to keep to buy something while in custody. They are also currently representing a young girl who underwent a forcible search with a number of male officer’s present in the room.

“These are not isolated incidents,” Ms Miles said. “This is every week.”

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Broad legal issues in police strip searches a ‘serious concern’
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