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Strip Searches of Minors (NSW)

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

Concerns are being raised about the legality and appropriateness of strip searches carried out on minors by New South Wales police. The issue has come to light after Redfern Legal Centre obtained data on strip searches conducted in the last three years, revealing that there were 122 strip searches of underage girls, including two 12-year-olds in that period.

Under New South Wales legislation, police are only allowed to conduct field strip-searches where the urgency of the situation requires it. Where the person being searched is a minor, police are generally required to arrange to have a parent, guardian or support person present.

However, a number of complaints have been made recently about the strip-searching of minors in circumstances of questionable legality. A Law Enforcement and Conduct Enquiry last month heard evidence that some police did not know their obligations in relation to minors.

Power to conduct strip searches

Under Section 31 of the Law Enforcement (Powers and Responsibilities) Act 2002, police in New South Wales have the power to carry out a strip search in a police station where the police officer believes on reasonable grounds that the strip search is necessary for the purposes of the search.

The police have the power to carry out a strip search in another place where they believe on reasonable grounds that the strip search is necessary for the purposes of the search and the seriousness or urgency of the circumstances make the strip search necessary.

Section 33 of the act provides that when a minor is strip-searched, this must occur in the presence of a parent, guardian or support person. However this requirement can be dispensed with if delaying the search would result in evidence being concealed or destroyed or an immediate search is necessary to protect the safety of a person.

Where a search of a minor is not conducted in the presence of an adult, the police must make a note of the reasons for this.

Children below the age of 10 must not be strip-searched.

Redfern legal centre report

A report released in September 2019 by Redfern Legal Centre examined the practice of strip-searches in NSW and their impact. It noted that strip searches are on the rise in the state, with an increase by 46.8 per cent over the last four years with police finding nothing during the search in 64 per cent of cases. The report argued that strip searches raise major issues of police accountability and should only be conducted in exceptional circumstances. It noted that strip-searches re-traumatise survivors of sexual assault, with young people being especially vulnerable.

The report also noted that the current legislation requires police conducting a field search to apply the same tests for a child as for an adult. The only extra protection that exists for children is the requirement that an independent adult be present. Furthermore, that requirement can be dispensed with if, in the police’s assessment, it is not reasonably practicable to locate a suitable adult.

The report recommended that police should be required to obtain a court order prior to strip-searching a minor and that this should only be done based on child protection concerns, to protect a child from harm. It further recommended that the presence of an independent adult at such a search should be mandatory.

Law Enforcement Conduct Commission enquiry

The New South Wales Law Enforcement Conduct Commission recently held an inquiry into the strip-searching of a 16-year-old girl at Splendour in the Grass festival near Byron Bay. The girl was reportedly strip-searched without a parent or support person present after a false positive was given by a sniffer dog. The girl said the incident had been distressing and upsetting and had caused her to lose her sense of trust in the police.

Community response

While there has been widespread concern about the lack of police accountability in relation to the strip-searching of minors, the police minister, David Elliot, has defended the practice. The minister reportedly said he would want his own children strip-searched if they were suspected of breaking the law.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.

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