Humiliating strip searches are illegal, yet even police are confused by the law

Two words and four numbers tell us it’s time to reform police strip-search powers. We'll come to the numbers shortly, but the two words are squat and cough. This humiliating practice is a cavity search, not a strip search. The law defines a cavity search as a "forensic procedure" that only a court can order a medical practitioner to conduct.

Yet our research shows that police are routinely directing people to remove the bottom half or all of their clothing, to "squat and cough" in the hope of revealing secreted items. Police may believe using "squat and cough" complies with the law on strip searches by avoiding visually inspecting, or touching, a person’s cavities. We say it is unlawful.

The legal definition of strip search is broad and vague and doesn’t guide police. In practice, being directed to take off all, or some, of your clothes can amount to a strip search. So can an officer looking down your top or pants to your underwear or genitals, or asking you to lift an item of clothing to reveal your body. Our review of the law across Australia and elsewhere concludes NSW law needs a clearer definition.

Our research also shows that police are confused about the application of the law. NSW law allows a strip search to be used if it is "necessary for the purpose of the search" and must be "in serious and urgent circumstances that make it necessary". We have found this intrusive search is taking place in circumstances that are neither serious nor urgent.

Judges have expressed concern that police are not considering the necessary legal criteria they must apply. For example, by not considering alternatives such as a "general" (pat) search, or by strip-searching someone for having small quantities of drugs for personal use. Our report outlines examples of long-held concerns that Aboriginal and Torres Strait Islander people are being strip-searched unlawfully in humiliating circumstances for concerning reasons.

Now, the four concerning numbers. Only 30 per cent of all strip searches in the field result in criminal charges. When charges are laid, 82 per cent are for possession of a prohibited drug but only 16.5 per cent are for drug supply and 1.5 per cent for possession or use of a weapon. Carrying drugs for one’s own personal use is neither serious nor urgent. The law only meant police to use strip searches for emergencies and in exceptional circumstances.

Strip searches at festivals have made the news. The coronial inquiry into the deaths of six young people at festivals heard evidence that young people were secreting drugs inside their bodies to avoid drug-detection dogs and over-policing. Drug-detection dogs are notoriously inaccurate. But an indication by a dog appears to give some police the wrong impression that this alone gives them grounds to search.

This is not legally true. Our analysis of case law also shows that police have justified strip searches on the basis that the dogs are inaccurate. Here lies the vicious cycle where at least 20 per cent of all strip searches occur after a drug dog indication. Abandoning these operations would go some way to  restoring lawful policing.

The solution is clearer law that guides police policy. Our research recommends that strip searches only be used by police when they suspect a person has a dangerous weapon or is about to commit a drug supply offence and there is an imminent serious risk to safety or of evidence being lost.

In both cases, we suggest it be spelled out in the law that a general (pat or frisk) search be done first. This isn’t radical. The ACT, Commonwealth, Victoria, South Australia and Tasmania all legally limit strip searches in the field in some way.

Even Queensland police conduct strip searches at a much lower rate per capita than NSW. Strip searches in the field in NSW are on the rise – an almost 20-fold increase in less than 12 years. It’s time for a different approach.

Dr Vicki Sentas and Dr Michael Grewcock, at UNSW Law, are the authors of the public report Rethinking Strip Searches by NSW Police, commissioned by Redfern Legal Centre for its Safe and Sound Campaign and released on Thursday.