Meath, Lauren; Birchall, Ebony --- "Strip search law and practice: Accountability through civil law" [2020] PrecedentAULA 67; (2020) 161 Precedent 10

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STRIP SEARCH LAW AND PRACTICE

ACCOUNTABILITY THROUGH CIVIL LAW

By Dr Lauren Meath and Ebony Birchall

Strip searches are traumatic and harmful, and as a result, the law puts strict limits and safeguards around their use. Research has found that the practice has broad repercussions on social and emotional wellbeing and can produce ‘embodied trauma’.^[1] It can cause retraumatisation of vulnerable people previously subjected to sexual and other assaults, and trigger feelings of powerlessness and humiliation.^[2]

Despite this, the use of strip searches in Australian police practice is increasing. As the NSW Deputy State Coroner reported last year, ‘[w]hile it is clear that Parliament’s intent was that strip searches were to be used as a last resort and in exceptional circumstances, the reality is far from that.’^[3] This article will consider strip search practice, strip search law, and the accountability that civil law provides in relation to unlawful strip searches.

STRIP SEARCH PRACTICE

NSW Police has faced scrutiny regarding its use of strip searches in recent years, with statistics showing that search rates have increased almost 20-fold in just over a decade.^[4] The NSW Law Enforcement Conduct Commission recently presented a suite of reports to NSW Parliament on strip search practice. The Commission found that NSW Police lacked appropriate understanding and training on the legal requirements governing strip search practice.^[5] Freedom of information disclosures revealed NSW Police quotas stipulating that more than 241,000 personal searches and strip searches must be performed within a 12-month period.^[6] In 2018, Redfern Legal Centre launched an initiative to reform strip search law in NSW, seeking improved protections for members of the public and more rigorous guidance for police. Further, data obtained by Redfern Legal Centre shows that strip searches disproportionately affect Aboriginal and Torres Strait Islander people.^[7]

Strip search practice has also faced controversy in other states. Last year, a report on strip searching practices in Western Australian prisons noted that 900,000 strip searches were conducted on prisoners over five years, though only 571 contraband items were found. The report described the searches as ‘a distressing, humiliating, and degrading experience. For people with traumatic backgrounds, it is likely to be even worse ... the risk of further harm is high.’^[8] Similar issues have been reported in Victorian prisons.^[9] Also last year, Queensland Police strip searched 20 protestors (including one teenager) from a climate rally. The use of strip searches on protestors was condemned as a police intimidation tactic, anti-democratic, and described by an advocate as a ‘sexual assault by the state’.^[10]

STRIP SEARCH LAW

A strip search involves a search of a person that may require the removal of some or all clothing, to allow an examination of the person’s body (but the law prevents a search of body cavities) and clothes.^[11] Each Australian state or territory has its own legislative framework governing strip searches. There are notable differences between the frameworks,^[12] however common between the jurisdictions is the underlying principle that the search should be no more intrusive than is necessary for the purpose of the investigation, and that strip searches should be conducted as a last resort.^[13]

In NSW, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) outlines the law surrounding the use of strip searches. Section 31 provides the threshold requirements for when a strip search can be carried out:

‘A police officer may carry out a strip search of a person if—

(a) in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or

(b) in the case where the search is carried out in any other place—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.’^[14]

Subsection (a) relates to searches performed at a police station or other place of detention. A strip search in a custodial setting will be lawful where two separate elements are satisfied: first, the officer has reasonable suspicion; and second, the strip search is necessary for the purpose of the search. Subsection (b) relates to strip searches carried out in any place other than in custody, and in addition to the two elements already identified, adds a third element requiring that the seriousness and urgency of the circumstances make the strip search necessary.

While there is some judicial authority to provide added clarity on the first element of reasonable suspicion, the second and third elements are less clear. The term ‘suspects on reasonable grounds’ means the relevant police officer must have a realistic suspicion that the person of interest has something unlawful on them with a factual basis.^[15] Dr Grewcock and Dr Sentas provide judicial authority that confirms a ‘reasonable suspicion’ will not be lawfully created by factors such as:^[16]

• A person’s presence in a high crime area or the time of day.^[17]

• A person refusing to cooperate with police or lawfully resisting a search.^[18]

• Staring, avoiding eye contact, or looking nervous.^[19]

• The existence of prior criminal conduct on its own.^[20]

• Belonging to a particular class of persons.^[21]

Sections 32–34 provide safeguards around the conduct of police officers while performing strip searches. These safeguards include:

• The police officer must provide reasonable privacy for the person searched and conduct the search as quickly as is reasonably practicable.^[22]

• The police officer must conduct the least invasive kind of search practicable in the circumstances.^[23]

• The search must be conducted by a police officer of the same sex as the person searched.^[24]

• No strip searches can be conducted on children under the age of 10 years.^[25]

• Searches of children between the ages of 10 and 18 must be conducted in the presence of a parent or guardian of the person being searched.^[26]

• A strip search must not involve a search of a person’s body cavities.^[27]

UNLAWFUL STRIP SEARCHES AND CIVIL LAW

If police officers conducting a strip search fail to follow the relevant legislative scheme outlining proper use of police powers in their jurisdiction, the strip search will be considered unlawful. In those circumstances, it may be classified as an assault and/or battery under civil law, with the person searched entitled to damages. Given the controversy surrounding strip search practice, this is an important form of accountability over police powers and provides persons who are unlawfully searched with redress.

Attalla v State of NSW^[28] provides an example of this type of civil claim. In this case, Mr Attalla was sitting on a wall on a main street, texting on his phone, at around 3:30am. Three police officers confronted him and announced that he was suspected of being in possession of prohibited drugs. Mr Attalla was initially searched on the street (a general search, not a strip search) and no items were found. He was then arrested and taken to Kings Cross Police Station where he was strip searched.^[29] The Court found that the legal requirements for police conduct were not satisfied, and therefore there was no legal justification for the force used by the police officers involved, and such force constituted an assault and battery.

The awarded damages totalled $110,000 and covered assault/battery claims regarding the strip search and general search, as well as wrongful arrest and false imprisonment.^[30] Mr Attalla was also awarded exemplary damages, principally with respect to the strip search, with the judge finding a ‘reckless indifference by the officers to the statutory safeguards attaching to these invasive powers’.^[31]

CONCLUSION

Strip search practice has been under scrutiny recently. This is particularly the case in NSW, where there have been calls for legislative reform, led by advocacy from Redfern Legal Centre. Until such reform occurs, civil law provides some accountability over strip search practice and redress to people who have experienced unlawful strip searches.

Dr Lauren Meath and Ebony Birchall are lawyers in the Project Litigation team at Slater and Gordon Lawyers investigating potential class action proceedings in relation to unlawful strip searches by NSW Police. PHONE [phone] EMAIL [e-mail] and [e-mail].

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^[1] P Malins, ‘Drug dog affects: Accounting for the broad social, emotional and health impacts of general drug detection dog operations in Australia’, International Journal of Drug Policy, Vol. 67, No. 63, 2019.

^[2] M Grewcock and V Sentas, Rethinking Strip Searches by NSW Police (Report, August 2019) 16.

^[3] State Coroner’s Court of NSW, Inquest into the death of six patrons of NSW music festivals (Inquest, 8 November 2019) [451].

^[4] Grewcock and Sentas, above note 2, 4.

^[5] Law Enforcement Conduct Commission, ‘Presentation of LECC strip search reports’ (Media release, 8 May 2020).

^[6] J Kidd, ‘NSW Police set quota for 241,000 personal searches and strip searches in 12 months, documents reveal’, ABC News, 13 February 2020.

^[7] M Syron, ‘Data reveals Indigenous people in regional NSW targeted by police strip searches’, NITV, 17 September 2020.

^[8] Government of WA, Office of the Inspector of Custodial Services, Strip Searching in Western Australian Prisons (Report, March 2019) iii.

^[9] Human Rights Law Centre, Total Control: Ending the Routine Strip Searching of Women in Victoria’s Prisons (Report, 2017).

^[10] B Smee, ‘Teenage girl among 20 Extinction Rebellion activists strip-searched by Brisbane police’, The Guardian, 20 October 2019.

^[11] See for example, Crimes Act 1900 (ACT), s185; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s3; Control of Weapons Act 1990 (Vic), sch 1 cl 2.

^[12] For an analysis of the frameworks applicable in each state, see Grewcock and Sentas, above note 2, 38.

^[13] Ibid, 39.

^[14] LEPRA, above note 11, s31.

^[15] R v Rondo [2001] NSWCCA 540, [53].

^[16] Grewcock and Sentas, above note 2, 14.

^[17] R v Fortescue, Michael [2010] NSWDC 272; Attalla v State of NSW [2018] NSWDC 190 (Attalla).

^[18] Streat v Bauer; Streat v Blanco (Unreported, NSWSC, 16 March 1998); Le v State of New South Wales [2017] NSWDC 38 (Le).

^[19] Attalla, above note 17; R v Yana Orm [2011] NSWDC 26, [55].

^[20] Moses v State of NSW (No. 3) [2010] NSWDC 243.

^[21] Le, above note 18.

^[22] LEPRA, above note 11, s32(4).

^[23] Ibid, s32(5).

^[24] Ibid, s32(7).

^[25] Ibid, s34.

^[26] Ibid, s33(3).

^[27] Ibid, s33(4).

^[28] [2018] NSWDC 190.

^[29] Ibid, [4].

^[30] Ibid, [127].

^[31] Ibid, [123]–[126].