Police strip-search powers ‘wrong’

The NSW Police Force’s strip-searching powers are ‘wrong at law’, an investigation has found.

The NSW Police Force’s strip-searching powers are “wrong at law”, deeply flawed, and in need of “substantial revision” because of their legally ambiguous ­instruction, an investigation by the Law Enforcement Conduct Commission has found.

In a report released on Thursday, the commission’s review of standard operating procedures for strip-searches in custody found the force’s recently revised policy positions must be “regarded as interim only” due to lingering doubts about their lawfulness.

“The commission has ongoing serious concerns about the instruction and lack of instruction provided to police in certain areas,” the report said. “The ­revised policies also raised broader legal issues which ­remain unresolved.”

The commission launched an inquiry into the force’s strip-searching practices in 2018. During the research phase it collected 113 different guidelines used by police at local commands and stations, some of which contained inconsistent rules, advice, and errors on matters of law.

The force revised this tangle of instructions last September and distilled them into two universal policy manuals for custodial matters and the general police handbook.

But while these revised practice notes contained improvements, the commission found that they still need “substantial further explication or revision”. Lingering concerns remain with how police obtain consent for a strip-search, and the use of force in certain circumstances, such as when a person declines to squat or move a part of their body at the request of officers.

“There are no explicit statutory powers to require the person to comply,” the report said. “The commission is concerned about a number of key policy positions stated or implied … which the commission considers to be wrong at law.”

The investigation also uncovered a wealth of inconsistencies with past practices outlined in standard operating procedures — since revised — which relied on outdated legal references and practices.

Two such guideline documents incorrectly stated that all prisoners in custody should be strip-searched; a further 21 said strip-searches were not permitted “as a matter of policy”, while 65 said a “thorough” search was advisable — no explanation of “thorough” was provided.

The NSW Police Force ­responded to the report saying it would consider the commission’s recommendations, but that recent amendments to its policies had already been implemented and provide “consistent guidance to officers about undertaking person searches”.

“As an organisation with ­extraordinary powers, we understand the need to closely monitor and regularly review the use of search powers to comply with the Law Enforcement (Powers and Responsibilities) Act 2002 and other relevant laws,” a spokeswoman said.

The commission’s report was released with a separate review of a pre-emptive crime-solving strategy called Suspect Targeting Management Plans.

Known as STMPs, they comprise a list of recidivist offenders at local commands, who are targeted for routine interaction with officers in the hope of ­reducing their law-breaking.

The commission commended the force for implementing large-scale adjustments to the policy, namely to its targeting of children and young people.

It said this was necessary ­because some patterns of targeting had led to “oppressive interactions” with police officers, and that a high proportion of targets were Aboriginal or Torres Strait Islander in heritage who may have been identified due to “unacceptable risks of bias” within the system.

A police spokeswoman said it had accepted all 15 of the commission’s recommendations, and that a redesigned STMP framework would be rolled out statewide this year. “The NSW Police Force remains fully committed to continuing to work with the LECC to improve the utility and outcomes of STMP and ensure it is appropriately ­applied to young people.”