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Strip search laws in NSW are governed under the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’). There are strict requirements that officers must follow.

Recent statistics about strip searches have shown that a significant number of strip searches are conducted unlawfully by police.

If a strip search has been conducted unlawfully on you, then any evidence as a result of that search can be excluded. You may also be entitled to compensation. You can contact us online if you want to speak to a specialist criminal lawyer.

What is a strip search?

A strip search is a search of a person requiring the removal of their clothes and examining their body.  

Part of the search can include opening your mouth or moving hair.

Under section 31 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’), a police officer may conduct a strip search if they suspect on reasonable grounds a search is necessary and the seriousness and urgency of the circumstances require it.

When can police strip search?

Police can only strip search you if they reasonably suspect that a strip search is necessary for the purposes of the search and the seriousness and urgency of the circumstances make the strip search necessary.

The only exception to this is if you are at a police station or detention facility, such as a jail. In these locations police do not need to turn their mind to the urgency or seriousness of the circumstances. If they suspect of reasonable grounds a strip search is necessary, they are entitled to conduct it. 

The most common reasons for police to conduct strip searches is if they believe you are in possession of a drug or you have an item that can harm yourself or others.

Strip Searches After Arrest

When police arrest you, they can conduct a search of you. This can occur at the time of arrest or some time afterwards. They must still hold a reasonable suspicion that it is necessary to search you to determine if you possess:

• An item related to an offence that has been committed;
• A dangerous object;
• Something that could be used to escape from lawful custody.

If these items are found, police can seize them.

What is a reasonable suspicion?

Reasonable suspicion is defined in the case of R v Rondo [2001] NSWCCA 540 at [53]:

“A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear… A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence”.

A reasonable suspicion must have some factual basis. It may be based on hearsay or evidence that is inadmissible otherwise, such as the officer’s opinion.

Some common reasons police provide for having a reasonable suspicion include;

• appearing nervous;
• being in an area associated with drugs;
• having ‘intel’ on the police system linked to their name or the vehicle they are driving;
• attempting to avoid police.

Conversely, a mere indication by a sniffer dog is insufficient by itself to constitute ‘reasonable grounds’. This is a common basis police use for music festival strip searches. If this is the only factor relied on then the search will be illegal.

What does ‘seriousness and urgency’ mean?

LEPRA does not define ‘seriousness and urgency of the circumstances’. It is a question of fact on a case by case basis. An experienced criminal lawyer will be able to provide advice about the likelihood of the prosecution being able to establish this factor.

If police reasonably suspect that you possess a drug and you could dispose of it, the circumstances are likely serious and urgent enough to allow a strip search.

Conversely, if police merely suspect you have verbally assaulted another person, there would be no basis for a strip search.  

What must the police tell me before a strip search?

Before conducting a strip search, the police must:

• tell you their name and station
• tell you the reason for conducting the strip search (e.g. they think you have drugs or weapons on you)
• provide evidence they are a police officer if they are not in police uniform
• that you are required by law to comply.

If police don’t give you the above information this may make the search unlawful under Paret 15 of LEPRA.

Strip search rules for police

Police are required to follow these rules when conducting strip searches:

• they must preserve your privacy and dignity as much as possible while conducting a strip search (Section 32 of LEPRA);
• it must be conducted by a police officer of the same sex as you (Section 33(1)(a) of LEPRA;
• it must not take place in the presence or view of a person who is of the opposite sex (Section 33(1)(b) of LEPRA);
• It must not take place in front of unnecessary people and must not search the genital area (Section 33(1)(c) of LEPRA).

Police must:

• tell you the reason for the search

• tell you if you will be required to take off your clothes

• ask you for your cooperation

• do the search in a private area (as far as reasonably practicable in the circumstances)

• do the search as quickly as possible

• ensure that the police officer conducting the search is of the same sex as you

• not do the search where anyone of the opposite sex can see

• only do the search in the presence or view of a person who needs to be there for the purpose of the search. The police must also provide you with the name and place of duty of the officer performing the search.

What clothing can police ask me to take off?

Police can only ask you to take off clothes that are necessary for the purpose of the search (Section 33(5) LEPRA).

Police are required to conduct the search in the least invasive way possible.

If after the search your clothes are taken by police, they must provide you with reasonable and appropriate clothing.  You are also entitled to get dressed as soon as the search is completed.

Can I be questioned while being strip searched?

Police are not allowed to ask you questions while you are being strip searched.

Can police touch my body?

Police are not allowed to not touch your body while conducting a strip search (Section 33(6) LEPRA). Police are only allowed to perform a ‘visual search’ on the parts of your body that are reasonably necessary for the search.

Can police search my private parts?

Police cannot touch your private parts, however they can look at them if they suspect on reasonable grounds it is necessary to do so for the purposes of the search.

For example, if they have reasonable grounds to suspect that you have drugs secreted at or inside a part of your body.

Can police search my body cavities?

Police cannot search your body cavities apart from your mouth. Police can ask you to open your mouth and conduct a visual inspection. If police ask you to squat and cough, this may be a search of a body cavity.

Can another person be present?

You can ask for a parent, guardian or friend to be with you and police must allow this if it is reasonably practicable.

Can police strip search children?

Police can only strip search children in certain circumstances. The child must be 10 years of age or older. The search must also be conducted in the presence of a parent or guardian.

If they are unavailable, a non-police officer representing the interests of the child being searched must be present.

Police can only conduct a strip search without a parent or guardian present if they hold a reasonable suspicion that delaying the search would conceal or destroy evidence, or an immediate search is necessary for safety reasons.

Can I refuse a strip search?

You cannot refuse a police strip search. If you do not comply you can be charged with an offence of resist officer in execution of duty.

Police may use reasonable force to strip search you. If police do not use reasonable force or breach any of the other requirements under LEPRA, you may be able to defend any criminal charges against you.  

Recent strip search cases

Recent strip search cases were reviewed by the Law Enforcement Conduct Commission (LECC) and found only 30% of strip-search records documented the “seriousness and urgency” threshold that officers must meet in order to justify a strip-search under the law.

As such it appears that the majority of strip searches are being conducted unlawfully by police. If you have been subject to an unlawful strip search you may be entitled to compensation from police. Contact us on (02) 78042823 to speak to a leading criminal defence lawyer.