Know Your Rights, as Lockdowns Lift

By Paul Gregoire and Ugur Nedim

After 107 days of being ordered to stay at home, Sydneysiders emerged from the pandemic lockdown on Monday. This saw numerous restrictions eased, including requirements to carry a mask at all times, as well as having to show proof of residence.

However, the current system of opening up continues to place additional restrictions on citizens who aren’t COVID vaccinated, and this can lead to circumstances where the suspected breaching of these measures, may see a NSW police officer require proof of vaccination.

Section 6.3 of the current version of the Public Health (COVID-19 General) Order 2021 stipulates that a person who may be in breach of the provisions within it, can be required to produce “vaccination evidence” by a police officer. And this process can affect both the vaccinated and the unvaccinated.

The academic paper Policing Biosecurity found that over the three months to 15 June last year, once NSW police officers stopped a person over a suspected COVID breach, 45 percent of those individuals were subsequently searched.

This indicates that just coming under the scrutiny of police officers can trigger other powers – that may be unwarranted – as COVID breaches have had nothing to do with concealed items. And these figures may also point to pandemic restrictions having been used as an excuse to stop and search.

So, it’s best to know your rights on the streets at present, as there’s likely to be heightened police activity over the coming months.

Reasonable grounds

Most of the powers that NSW police officers have in their possession are set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). And the rules and regulations pertaining to searches without a warrant are found under division 4 of what’s commonly known as the LEPRA.

Section 21 of the LEPRA provides that a person can be stopped, searched and detained if an officer “suspects on reasonable grounds” that one of several reasons for the procedure to be conducted is at hand.

These reasons include being in possession of a stolen item or anything used or intended to be used in the commission of an offence. Other reasons involve the suspected possession of a dangerous article related to a crime or the possession of an illicit drug. And if found, such items can be seized.

The authority on the definition of “suspects on reasonable grounds” or “reasonable suspicion” is the 2001 NSW Court of Criminal Appeal case R versus Rondo, which provides that the suspicion is “less than a reasonable belief but more than a possibility”, and there must be a “factual basis” to it.

Suspecting that someone has breached a COVID-19 restriction is not reasonable grounds for searching them. And nor is being dressed in a certain way or being situated in a particular area.

Personal searches

The rules around what an officer can do during a personal – or pat-down – search are contained in section 30 of the LEPRA.

In this regard, an officer can run their hands over outer clothing and require clothing, such as coats, gloves, shoes, socks and hats, be removed. An officer can examine things the subject of the search is in possession of, and they can run an electronic metal detector over outer clothing.

Section 21A of the LEPRA also permits an officer conducting a search to require that the individual being searched open their mouth for inspection and shake out their hair. Officers can’t forcibly open a person’s mouth. And failure to comply with these orders can see an individual fined $550.

Strip searches

Instances of police strip searching the public have dramatically increased over recent years. To a large extent, this has been in relation to the ever-increasing use of drug dogs, but it has also been in relation to police stopping civilians over suspecting them “on reasonable grounds.”

Section 31 of the LEPRA outlines that with reasonable suspicion and if thought necessary an officer can strip search an individual at a police station, but in order to do so elsewhere, “the seriousness and urgency of the circumstances” must necessitate the procedure as well.

The next four sections of the legislation stipulate how a strip search must be carried out. This includes an officer informing an individual that they’re going to conduct the procedure, the reasons for doing so and the officer must ask for the person’s cooperation.

This is a good place to ensure that people are aware of a golden rule, which is to never give consent to being searched, as whilst it is best to politely follow police orders, not giving consent means any subsequent charges might be thrown out of court if it’s proven the search was carried out illegally.

A strip must be conducted in a private area, out of view of the opposite sex. Searching officers must be the same sex as the subject being searched. No searching of the genital or breast area should occur. And a suspect cannot be questioned whilst being strip searched.

No one under 10 years old can be strip searched. Those between the ages of 10 and 18 must be accompanied by a parent or guardian. No touching can occur during a strip search, body cavities cannot be searched, and the procedure shouldn’t involve the unnecessary removal of clothing.

The NSW Police Force Person Search Manual states that an officer can directly move to a strip search without conducting a regular search first. And controversially, the document states that officers can require a person to lift their testicles and breasts, part their buttock cheeks and squat.

Disclosure of identity

Besides currently being empowered to check people’s vaccination status in regard to COVID breaches, there are a number of reasons why a police officer may require an on-the-street individual to disclose their identity – their name and/or residential address.

Set out in section 11 of the LEPRA, this includes an individual being able to assist in the investigation of an alleged indictable offence due to their vicinity to the crime, as well as when an officer is giving a person a direction, such as a move on order. Failure to correctly comply can result in a $220 fine.

Section 19 of the LEPRA provides that officers can require a person to produce their identification at the time that they’re required to disclose their identity.

And whilst a police officer is exercising the above mentioned powers, section 202 of the LEPRA requires that they provide evidence they are a police officer (unless he or she is uniformed),  provide their name and place of duty, and state the reason for exercising a power.

So, let’s hope police abide by the rules as the state begins to open up, but keep these points in mind, just in case.