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Strip searches

Information about the police power to conduct a strip search.

There is no power under common law to conduct a strip search. If police misuse this power their actions may constitute an assault. Strip search powers are created in statutes under both the Commonwealth and Victorian Acts in limited circumstances. Both jurisdictions include the power to remove clothing and to conduct an external examination of a person's body. This is commonly referred to as a strip search. Laws are very different depending on whether the offence is a Commonwealth or Victorian offence.

Strip search power under Victorian Law

Police have no power to conduct a search of person under common law unless that person has been arrested. The law about strip searches under Victorian Law is unclear.

Police maintain that their power to conduct strip searches—comes from Drugs, Poisons and Controlled Substances Act 1981 and Control of Weapons Act 1990. The Crimes Act 1958 allows for the removal of clothing for a forensic procedure to be carried out, however this can only be done with a court order or with the person's permission.

Suggested course of action

If person does not consent to being strip searched by the police, the Lawyers Practice Manual, suggests that:

  • person states very clearly and calmly that they do not consent and
  • ask that in the absence of a court order that no such search be undertaken and
  • while they will not physically resist such a search they will treat the search as an assault
  • they document details of the incident.

For VLA staff only, see Forensic procedures—When can forensic procedures be conducted? [1.1.1101](opens in a new window).

Police guidelines state that strip searches:

  • should be carried out so that there is minimal loss of dignity and privacy to the person being searched
  • should be conducted quickly
  • require complete privacy and should be conducted at police station
  • should be made by officers of the same sex as the person being searched, and
  • should not include the removal of rings or other jewellery unless the police have a reasonable belief that the item is stolen.

See Victoria Police Manual—Searches of Persons(opens in a new window).

Strip search should be a last resort

These guidelines also say that a full search should only be considered where the officer has a reasonable belief that person is carrying material that may not be discovered by an ordinary pat-down search. This kind of search has to be authorised by a division patrol manager or a superintendent if a large number of people are to be searched.

See Victoria Police Manual—Searches of Persons(opens in a new window).

Exception

No authorisation is needed where search is required urgently and it is suspected that the item searched for may be a weapon.

Case

Grollo v Howard (1994) 53 FCR 218; 75 A Crim R 271 (supports argument that police do not have any common law right to strip search)

Strip search power under Commonwealth law

Strip search is defined in the Crimes Act 1914 as the search of a person or articles in person's possession that may include removal of person's clothing and an examination of their body and garments, but does not include an internal search of body cavities.

Search warrants do not include the power to strip search or to search a person's bodily cavities.
Strip search can be conducted if person has been arrested and a police officer with rank of superintendent or higher gives approval.

Approval must only be given where a police officer has reasonable grounds to suspect that the arrested person has in their possession a seizable item or some evidentiary material related to an offence.

See s. 3ZH—Crimes Act 1914 (Cth)(opens in a new window).

If, during the search, a police officer believes that a forensic procedure would be likely to produce evidence, relating to the offence for which that person was arrested, they may carry out the forensic procedure according to law in Part 1D of Crimes Act 1914.

See Forensic procedures—Commonwealth forensics.

Removal of clothing

Only as much clothing may be removed as is reasonably necessary to determine whether the person possesses the item sought. If person's clothes are needed for evidence or forensic purposes, that person must be given other clothing to wear.

People incapable of managing their own affairs

Police can't conduct a strip search of people who are incapable of managing their own affairs unless:

  • that person has been arrested and charged
  • they have a court order.

Strip search of a child or person who is incapable of managing their own affairs must be conducted in the presence of that person's parent or guardian or some other person who is not a police officer.

More information

Legislation

Drugs, Poisons and Controlled substances Act 1981 (Vic)

  • Pt. 6—search, seizure and forfeiture
  • s. 81—warrant to search premises
  • s. 82—search without warrant

See Drugs, Poisons and Controlled Substances Act 1981 (Vic)(opens in a new window).

Control of Weapons Act 1990 (Vic)

  • s. 3—definitions
  • s. 10—search without a warrant
  • s. 11—warrant to search

See Control of Weapons Act 1990 (Vic)(opens in a new window).

Crimes Act 1914 (Cth)

  • s. 3C—defines strip search and frisk search
  • s. 3E—when search warrants can be issued
  • s. 3F—the things that are authorised by a search warrant
  • s. 3S—restrictions on personal searches
  • s. 3T—searches without warrant in emergency situations
  • s. 3U—search of conveyances where police have no warrant if serious and urgent circumstances prevail
  • s. 3ZE—power to conduct a frisk search of an arrested person
  • s. 3ZF—power to conduct an ordinary search of an arrested person
  • s. 3ZG—power to conduct search of arrested person’s premises
  • s. 3ZH—power to conduct an ordinary search or a strip search
  • s. 3ZH(2)—when a strip search may be conducted
  • s. 3ZI—rules for conducting a strip search
  • s. 3ZR—conduct of ordinary searches and frisk searches
  • Part 1D—conduct of forensic procedures

See Crimes Act 1914 (Cth)(opens in a new window).

References

Victoria Police Manual

The Victoria Police Manual has information about the police policy and procedure for personal searches.

See Victoria Police Manual—Searches of Persons(opens in a new window).

Lawyers Practice Manual

Westlaw’s Lawyers Practice Manual has information about strip searches and other forensic procedures that can be carried out on an accused person.

Note: This resource is only available to staff at Victoria Legal Aid.

See Forensic procedures—When can forensic procedures be conducted? [1.1.1101](opens in a new window).

Updated