WITH the party season approaching, it is timely to think about what the role of NSW Police is and how they exercise their powers. At last year’s Mardi Gras relations between the LGBTI communities and police were strained by what many considered a heavy-handed approach to policing. It raised concerns about relations between the communities and police going forward.

Power to demand your name and address

Generally, you don’t have to tell the police your name and address. However, if they ask it is usually a good idea to tell them or show some ID. The police have, after all, an important role in investigating crime. There are some situations in which you must tell them your name and address: If police reasonably suspect that you could help them investigate an indictable offence because you were near where it happened; if police intend to give you a move-on direction; or if you are under 18 and police suspect you of carrying or consuming alcohol.

This list is not exhaustive and there are several other situations where you are obliged to give your name and address to police.

Power to search you

As a result of community concerns about searching party-goers for drugs, it’s useful to look at what the law says about searches. A warrant to search you is not required. The police can stop and search you: if you agree to be searched; you are under arrest or in custody; or police suspect on reasonable grounds that you have in your possession a prohibited drug.

Once again, I haven’t included other situations where police have powers to search you so we can focus on drug searches.

What is reasonable suspicion?

While there is no easy answer to this question, in order to form a reasonable suspicion the police must have some factual basis to ground the suspicion, and there may be a number of factors that police can rely on to demonstrate a reasonable suspicion.

For example, the plain fact that you are in an area well-known for drug dealing will usually not be sufficient to ground a reasonable suspicion to search you for drugs. However, if together with that fact the police see you approaching people and handing over cash or other items, they would probably have reasonable grounds to suspect that you were carrying drugs. Another example may be if police see you put something in your mouth. In these situations police would likely argue that they had a reasonable suspicion to search you for drugs.

Of course, it is well-known that part of the police’s powers regarding searches for drugs involves drug detection dogs (a.k.a sniffer dogs).

Sniffer dogs

The police may use sniffer dogs to find prohibited drugs or plants in authorised places such as in or outside a pub or club, at sporting events, concerts, dance parties and other entertainment precincts, and on public transport vehicles and places.

The police must keep the dog under control and take all reasonable precautions to ensure the dog doesn’t touch you. They have no power to detain you while the dog sniffs you. However, if you run off then police may form a reasonable suspicion that you may be carrying drugs and perform a search.

It is unclear how a dog indicates to its handler it has detected the scent of a drug – often the dog will sit down next to you, but it is by no means clear that this is the only indicator. If a dog sits next to you then the police will be likely to have formed a reasonable suspicion that you have a prohibited drug on you and they may search you.

What is an illegal search?

If you can show that the police did not have a reasonable suspicion, given all the relevant facts and circumstances, you may argue that you should not have been searched, and any search performed may constitute an assault. However, you can only prove this in a court, after the event. If as a result of the search drugs were found on you the court would be likely to agree that the police had a reasonable suspicion to search you.

How are searches conducted?

When you are searched the police must give you evidence that they are a police officer (unless they are in uniform), and provide their name and place of duty and, most importantly, tell you the reason for the search.

In many situations police may do either a frisk search or an ordinary search, which may require you to remove outer clothing. If required to remove clothing, the police must tell you why you need to do so.

If police reasonably suspect that you have something in your mouth or hair, they may ask you to open your mouth or to remove or shake your hair. The police must not forcibly open your mouth.

The police will ask for your cooperation during a search and they must search as quickly as possible and in the least invasive way possible, ensuring reasonable privacy. They may not search and question you at the same time. Where reasonably practicable the search must be carried out by an officer of the same gender as you.

Strip searches cannot be performed except where necessary and in serious and urgent circumstances. When performing a strip search the police must not touch you and must ensure your reasonable privacy is protected. The police must not touch your genital area, or if you are female or identify as female, must not touch your breast.

Police complaints

If you wish to make a complaint about the conduct of the police you should get legal advice. As public officers performing functions under law, the police are required to perform their functions consistently with the public interest, and must not exceed their powers, given the important role they have in the community.

It may be possible to make a complaint about police conduct to the Local Area Commander for investigation and response. The NSW Ombudsman also has powers to oversee complaints against the police and make recommendations for reform.

In limited circumstances it may also be possible to commence a civil claim against the police for damages.

Peter Longfield is the Principal Solicitor of Sydney’s Inner City Legal Centre.

*This article provides a general summary only of the subject-matter covered. It should not be relied upon as a substitute for legal or other professional advice.

ICLC provides legal information and referral, legal advice, strategic casework, community legal education and conducts law reform and legal policy work especially in LGBTIQ rights throughout NSW but also for people of disadvantage in our catchment area. If you need legal advice about how the police have interacted with you please call us on 9332 1966 and we will talk to you about your legal needs.

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