These are your rights when it comes to police strip searches

We spoke with Redfern Legal Centre’s Samantha Lee to get the info you need.

There's been a massive increase in the number of police strip searches over the past decade.

'Rethinking Strip Searches' - a new report from the University of New South Wales - says the number of strip searches performed beyond police stations surged from 277 in 2006 to nearly 5,500 in mid-2018.

The report is the first of its kind in Australia. It details the harmful impacts these searches have on those subjected to them. Full details of the report can be found here.

If you're caught up in this situation, it's important to know your rights.

The Feed spoke with Samantha Lee, solicitor and Head of Police Accountability Practice at Redfern Legal Centre - the team that commissioned the report.

She says even police themselves are struggling to understand strip search laws, so it's essential the public is educated on them too.

What is a strip search?

NSW law spells out what separates a general search from a strip search.

A general search is when police pat down outer layers of clothing. In this case, you may be asked to take off your jacket, socks, hat and/or gloves.

Anything more than that is a strip search, Samantha advises.

A strip search does also include when an officer looks down the back of someone's pants into their underwear, and down a woman's top into her bra area.

"You're only required to take off as much clothing as necessary in the circumstances."

What are police not allowed to do in a strip search?

Police are not allowed to search cavities, or have someone 'squat and cough'.

They are meant to conduct these searches within a private area.

Unfortunately, Samantha points out, the law fails to define what a 'private area' means. (This definition is just one of several recommendations out of today's report).

The search itself is meant to be conducted by an officer of the same sex as the person being searched. Failure to do so means the officer has acted unlawfully.

Samatha says police are not allowed to question you during the strip search.

"[And] you are required to put on your clothes as soon as possible, and by no means be intimidated or harassed during that process."

On what grounds can I be strip searched?

The rules around why someone can be strip searched come under the Law Enforcement Powers and Responsibilities Act.

"That power allows police to conduct a strip search if they have reasonable suspicion to believe that the circumstances are serious and urgent enough that a strip search is necessary," Sam tells The Feed.

The problem is that the law does not define what 'serious, urgent or necessary' is, she points out.

That leaves police bringing their own interpretation of when to apply that search.

The report released today specifically recommended that the law itself be clearer about when and how police can conduct these searches.

"We want the law to only allow strip searches if there's a safety issue; if there's a danger to the safety of the person or to the public. i.e they've got a weapon."

I've been picked up for a search. What's the first thing I should do?

"The first thing is to try and get the name of the officer and the police station where they work," Sam advises.

It's difficult, but if they can, ask [the police officer] the reason why they want to conduct the strip search.

Under law, police are meant to provide this information to a person subjected to a strip search.

Suspects are permitted to take a friend or witness with them for the search.

Do I have the right to refuse a strip search?

You can tell police that you do not consent, and have that noted.

Someone is allowed to refuse a strip search if police are acting beyond power.

"That can be a bit of a legal argument, but a person has a right to resist a legal direction if that officer is acting outside the law."

For example, if a suspect is identified via a sniffer dog and then informed they are being taken for a strip search, it can be argued that that officer is acting outside of the law - and a person has a right to resist.

Samantha says this can be where things get tricky.

If they do resist, it's quite likely they will be charged with resisting arrest, or hindering police.

Although people do have a right to resist, Samantha advises that you stay cooperative, if possible.

What if I'm under 18 years old?

Anyone under the age of 10 cannot be subjected to a strip search.

If you're between 10-17 years old, police are legally required to obtain a support person (such as a parent/guardian).

But, as Samantha points out, the law also gives police an 'opt out' option on that rule.

"If they think that evidence will be destroyed, and the search is urgent, then they don't have to call a parent or guardian."

What can I do if I think I've been strip searched unlawfully?

Samantha recommends that anyone who has had a situation where police have asked them to take off any form of clothing or police have looked down/pulled out any form of clothing - then they should seek immediate legal advice.

"There's a high potential that that search was unlawful," she says.

Redfern Legal Centre is one such place where people can go to seek that help.

"We're the only free legal service regarding advice around police powers," Samantha told The Feed.

Other places to seek help include LegalAid NSW and the Aboriginal Legal Service.

There are 'two avenues' services like Redfern Legal Centre (RLC) can pursue.

The first is lodging a complaint.

"This either goes to police, or to the independent watchdog: the Law Enforcement Conduct Commission (LECC)".

The second is what's called a 'tort claim' (or compensation claim). Samantha says places like RLC can provide further information about whether that's an appropriate avenue, depending on the situation.

In some cases, civil action could also be pursued.

You can contact Redfern Legal Centre on (02) 9698 7277

Legal Aid NSW 's 'LawAccess NSW' help line on 1300 888 529

and Aboriginal Legal Service online at https://www.alsnswact.org.au/contact/

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