A young woman posted on Reddit that she was arrested, held overnight, and strip searched in WA, even though no one suggested she was hiding anything.
Her question is simple: Was that allowed? The thread is taking off, with hundreds of comments. It quickly lands on an uncomfortable idea: that the “consent” police ask for is really just a formality.
Her arrest happened in Western Australia, and the rules differ from state to state, that’s one thing the thread gets right. However, the underlying question about consent is one we hear constantly in NSW from our clients facing charges after a search.
The hard truth about “consent”
When police rely on their powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), your consent is not required. Being asked to “cooperate” is a safeguard the law imposes on police. It is not the same as being asked for permission, and saying no does not make a lawful search unlawful.
So those commenting in the Reddit thread are not wrong. However, they miss the far more important half of the point.
Police don’t need your consent for strip search, they need the power
If police don’t rely on your permission, they must rely on an actual legal basis, and that basis has a real threshold. Being arrested and held overnight does not automatically justify a strip search.
Under LEPRA, an officer can only strip search you where they suspect, on reasonable grounds, that it is genuinely necessary. A hunch, a “policy”, a drug dog walking past, or a suspicion of minor drug possession is not enough on its own. This point has been recently discussed in NSW courts.
A search must also follow strict rules. It must be:
- conducted in private,
- by an officer of the same sex,
- no touching,
- no body cavities,
- no more exposure than necessary,
- and no questioning while it happens.
Why the Search Can Decide the Criminal Charge
For people charged after a strip search, this is not a question about privacy or police procedure. It can actually determine whether the prosecution is allowed to rely on the evidence that led to criminal charges.
Our criminal defence team, led by Peter O’Brien, an Accredited Specialist in Criminal Law, represents people charged with drug offences after police searches. In those matters, the issue is often not simply what police found, but whether they had lawful grounds to search the person in the first place, and whether the search was conducted lawfully.
Why this matters if you’ve been charged
From a criminal defence perspective, this is where it counts.
Under Section 138 of the Evidence Act 1995 (NSW), a court has the discretion to exclude evidence obtained unlawfully. If that evidence was the basis of the charge, the criminal charge itself can fall apart.
That’s why the moment to fight an unlawful search is rarely the station floor. The smarter approach: state clearly that you do not consent, never physically resist, and get advice quickly so the lawfulness can be tested where it actually makes a difference, in court.
If you’ve been charged with a criminal offence arising from a search, speak with our criminal defence team for confidential, no-obligation advice: (02) 9261 4281.
Peter O'Brien is the Principal Solicitor of O'Brien Criminal & Civil Solicitors and Australia's leading expert in intentional torts litigation, with over 25 years of experience securing landmark victories in malicious prosecution and unlawful imprisonment cases. Author of Intentional Tort Litigation in Australia and recipient of the Law Council of Australia President's Medal, Peter has achieved record-breaking compensation for clients and is widely recognised for his unwavering commitment to access to justice.
