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- Soap Box
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- Guest Column
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- Tuesday, 9 February 2010
Last time I gave a wrap-up of the police power to search and detain. In this article I shall talk about what safeguards and limits the law puts on the use of those powers.
What are your rights and safeguards if the police decide to search you?
If the officer is not in uniform, they have to provide evidence they are a police officer, such as their warrant card.
They have to tell you their name and station. They have to tell you the reason for the search.
The police powers law sets out how the police can conduct a normal search, but police only have to comply insofar as is reasonably practicable to do so.
There are additional rules for a strip search. Here some rules are mandatory, although even for a strip search some rules are not mandatory and police only have to comply insofar as it is reasonably necessary.
The following applies to all searches.
If the police are going to search you they have to ask for your cooperation; tell you if you will have to remove an item of clothing before the search; and tell you why you need to remove clothes for the search.
When they search you the police must conduct the least invasive kind of search practicable in the circumstances — no strip search unless it is actually necessary.
The police must conduct the search in a way that provides you with reasonable privacy and as quickly as is reasonably practicable. Unless it is reasonably necessary, there should be no search of your genital area or for females (or female-identifying trans and intersex people), no search of your breasts.
You should be searched by an officer of the same sex.
You cannot be questioned while being searched.
The police must allow you to dress as soon as the search is finished.
There are further requirements for strip searches.
The police cannot strip search as a matter of policy or use these powers as a matter of course. The police must believe on reasonable grounds that the seriousness and urgency of the circumstances require a strip search. If the police require you to remove clothes other than just outer clothing, they are strip searching you.
A strip search is only a visual search of your body. Police are not allowed to ask you to remove any clothing that is not necessary; touch your body; search any body cavities; search your genital area.
The police must comply with these rules. They are mandatory, alhough there can be an argument over which clothes are necessary to remove.
Only police necessary for the search are allowed to be present or be able to see you.
You must be allowed to dress as soon as the search is finished. The search must be conducted in a private place, where no one of the opposite sex can see you.
Only an officer of the same sex as you is allowed to conduct the search. These rules are not mandatory — they apply only as far as is reasonably practicable.
All the other rules for searches also apply to strip searches.
If a police officer believes you may have drugs, anything dangerous or illegal in your mouth or hair, they are allowed to ask you to open your mouth or move your hair.
But for any other search of a body cavity, the police need to have your consent or a court order.
Disclaimer: This column is general and is not intended as legal advice. The ICLC provides free legal advice to the GBLTI community and to disadvantaged people in the inner city area. If you need legal advice about how the police have dealt with you, call us on 9332 1966 to make an appointment. Thanks to Georgina who contributed to this article.
info: Ros Mayne is principal solicitor at the Inner City Legal Centre. She has been both a Crown prosecutor and a senior criminal defence advocate with Legal Aid.
Tags: Ros Mayne
