Seemingly, in response to rising community concerns over a lack of transparency around NSW police use of search powers, which has seen a 47 percent rise in strip search use over the four years to June 2018, the NSW Police Force last month publicly released its Person Search Manual.
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is commonly referred to as the LEPRA. It contains police powers to search people. According to the manual, the LEPRA sets out four types of personal searches: on arrest, in custody, pursuant to a warrant and stop, search and detain.
Section 21 of the LEPRA contains the stop, search and detain power. It’s the one that’s causing the majority of the controversy around strip searches in this state. It allows an officer to stop someone without a warrant and search them for stolen goods, weapons, drugs or items used in a crime.
The search manual stipulates that if an officer conducts any of the four types of searches – including the increasingly routine strip search – there are a number of factors they must abide by, which are complying with rules and safeguards, holding the correct state of mind, and making a search record.
The required mind
The LEPRA stipulates that a searching officer must hold a reasonable suspicion that the person to be searched is in possession of something illegal and this suspicion must have a factual basis. The manual sets out a number of court-established guidelines around demonstrating this state of mind.
A reasonable suspicion is more than a possibility, but less than a reasonable belief. So, “some factual basis for the suspicion must be shown”, which can be based on hearsay – something someone else said – if it’s likely to be true, despite this information not being admissible as evidence in court.
The source of any information and its content seen together with the surrounding circumstances is important for forming a reasonable suspicion. And it can also be based on any information police have access to, such as warnings on the Computerised Operational Policing System (COPS).
It’s the officer conducting the search, who must hold this state of mind. So, if a male officer asks a female officer to conduct a search, he must fill her in on the circumstances to such an extent that she too forms a reasonable suspicion.
The manual explains there are two types of personal searches: a person search and a strip search. It specifies that police are operating in a manner where a person search doesn’t need to be conducted prior to a strip search if the latter is required. And a person search may turn into a strip search.
Section 30 of the LEPRA sets out what constitutes a person search. This includes running hands over a person’s outer clothing, requiring them to remove a coat or jacket, gloves, shoes, socks or a hat, examining anything in their possession and running a metal detection device over them.
In accordance with section 230 of the LEPRA, police may use reasonable force to carry out a search – including a strip search – if a person refuses, the manual outlines. And in compliance with section 203, when giving a direction, an officer must give a warning that it’s required by law.
The manual also states that police can run their fingertips around the waistband, collar or sleeves of outer clothing and move clothing to provide a visual inspection of the body – but not genital area or breasts – however both of these prescribed actions aren’t contained in the LEPRA.
Privacy and dignity
Section 32 of the LEPRA sets out a number of rules to preserve privacy and dignity that apply to all searches – including strip searches – as far as circumstances allow. This includes the requirement that an officer inform a person if they have to remove any clothing and why it’s necessary.
The officer must also ask the person for their cooperation, conduct the search in a private and least invasive manner, and as quickly as possible. A person must be informed of when the search is over, and if any clothes are taken, the officer must ensure the person is left with reasonable clothing.
An officer of the same sex as the subject of the search must conduct it. The genital area and the breasts of a woman – both cis and trans – must not be searched. And police cannot carry on questioning a person while the search is underway.
Strip off orders
Section 31 of the LEPRA stipulates when a strip search can be performed. At a police station, an officer must have a reasonable suspicion that it’s necessary, while in the field, this suspicion plus “the seriousness and urgency of the circumstances” are needed to make it called for.
The police manual states that a strip search is anything that goes beyond a person search. And it may or may not involve the removal of clothing, as when an officer asks a person to move clothing in order to inspect an area of the subject’s body, such as their genitals or breasts.
Section 33 of the LEPRA sets out strip search protocol. It states that a strip search must be carried out in a private area, not in the presence or view of someone of the opposite sex or a person not required to be present for the purposes of the search.
A parent, guardian or representative of the person being searched may be present. The strip search of a person between the ages of 10 and 18, or a person who has impaired intellectual functioning, must be done in front of a parent or guardian, or an acceptable stand in.
A strip search must not involve the search of a body cavity, or the inspection of the body by touch. Nor can it involve the visual inspection of a part of the body it’s not deemed necessary to. And section 34 makes clear that a child under 10 years of age must not be strip searched.
Miscellaneous manual provisions
The NSW police search manual details a number of additional strip search measures police are using that aren’t set out in the LEPRA. The first is that the removal of clothing should be done in stages, so removed pants should be replaced, prior to asking the subject to take off their top.
And as not stated in the legislation, the manual asserts that a person can be ordered to lift testicles, part buttock cheeks, spread fingers and toes, lift breasts, turn their body to face in a different direction, and squat.
The manual also states in relation to strip searches that an officer is allowed to request a person open their mouth and shake their hair. However, these are ancillary powers that are contained in section 21A of the LEPRA and actually apply to all stop, search and detain procedures.
An overhaul of the laws
Following the posting of the manual in September, Redfern Legal Centre (RLC) head of police accountability practice Samantha Lee told news.com.au that some of its prescribed actions, such as squatting and coughing, go way beyond what’s permitted in the LEPRA.
And Ms Lee added that while it’s good to be able to see how police are interpreting the legislation, the manual fails to ensure that strip searches are only carried out under exceptional circumstances, so legislative change is still “urgently needed”.
Commissioned by RCL, a recently released UNSW report into NSW police use of strip searches reveals that since 2006, the use of the invasive practice has increased twentyfold. And it also stressed that the laws must be made clearer, so as to prevent their use remaining routine.