Criminal Law

Balancing state security with individual liberty is central to the rule of law and a fundamental exercise of the legal system. In New South Wales, that tension has recently crystallised around one of the most intrusive exercises of police power – the strip-search – following the judgment and settlement in Raya Meredith v NSW. The implications of the case are significant – not only for Ms Meredith personally, but also for the ongoing class action it galvanised.

While strip-searches are not unlawful per se, their statutory foundations are narrow, their justificatory burden is high, and their psychological impact can be severe. Yet, over the past decade, the Law Enforcement Conduct Commission has demarcated a disturbing trend – strip-searches being used as routine tools of control, rather than exceptional measures of last resort. Meredith’s case, and the breadth of litigation around it, pulls this reality sharply into focus – exposing broader conversation around the nature and extent of police power.

The Statutory Framework: LEPRA and Its Limits

In New South Wales, strip-searches are statutorily predicated on the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). Pursuant to Section 31-33, authority for a strip-search is conferred when two conditions are satisfied: there must be a “reasonable suspicion” that the person possesses a prohibited item, and the circumstances for the strip-search must be “serious and urgent”.

Concerning the first requirement, in R v Rondo, the court stated that “reasonable suspicion involves less than a reasonable belief but more than a possibility. Reasonable suspicion is not formed arbitrarily, and there must be some factual basis for the suspicion to be shown. In theory, this test is protective; in practice, it has become dangerously elastic. Nervous demeanour, presence at a music festival, or simple association with others have been deemed sufficient to justify invasive searches. Meanwhile, for the second requirement, what constitutes “serious and urgent” is so underdefined that its application has been left mainly to police discretion.

The ambiguous construction of the law has resulted in precisely what was identified in LECC reports. Strip-searches are supposed to be conducted in private, by officers of the same gender, and with minimal humiliation. In reality, they are conducted in makeshift tents, on minors, and without sufficient evidence. What was legislated as an extraordinary power has devolved into an insidiously pervasive policing tactic – one that disproportionately targets young people in recreational settings and perpetuates the systemic failures of law enforcement.

Meredith as a Catalyst

Ostensibly, in this context, Meredith’s case is hardly surprising. Ms Meredith launched the case after being searched at the Splendour in the Grass Music Festival in 2018, where an officer asked her to remove a tampon while naked.

Her legal team described her experience of being strip-searched as “akin to things that would happen during a sexual assault”

Supreme Court Justice Dina Yehia handed down her judgment yesterday, finding Raya had been subjected to “humiliating” and unlawful treatment. She ordered the state pay $93,000 in compensation and aggravated damages for assault, battery and false imprisonment– reflecting the psychological and physical harm incurred– as well as the aggravated nature of the intrusion.

But to only consider the significance of Meredith’s case retrospectively would be reductive given its prospective value. Ms Meredith is the lead plaintiff in a class action involving 3000 people who were searched by NSW police at music festivals between 2016 and 2022. If aggregated, damages could climb into the tens of millions, creating significant financial and reputational repercussions for the NSW Police Force.

Civil actions of this kind, though less common in Australia than in the United States, are gaining traction. The institutional abuse class actions of the past decade have shown that courts are willing to engage with claims of systemic misconduct. The Meredith case may well signal a shift in litigation, as the need to hold law enforcement accountable increases.

The Banality of Misconduct 

One of the most striking aspects of the strip-search controversy is its banality. What should be an extraordinary police measure has been rendered routine. Statistics obtained by the Redfern Legal Centre showed that between 2016 and 2020, strip-searches in NSW increased by nearly 20%, with a disproportionate focus on young people at festivals.

Their normalisation exposes an insidious disjuncture between statutory design and pragmatic enforcement. It also raises the spectre of what the sociologist David Garland once described as the “culture of control”—a gradual expansion of state power justified by appeals to order, even at the expense of liberty.

For a liberal democracy without a constitutional bill of rights, the dangers are acute. Without entrenched protections, Australians rely on the judiciary’s willingness to enforce statutory limits. In this context, the Meredith litigation should be viewed not simply as a dispute over damages, but as a test of whether courts will actively police the boundaries of police power.

Comparative Contexts

The Australian experience is distinctive, but not unique. Other jurisdictions have grappled with similar tensions, though under varying circumstances.

In the United Kingdom, the European Court of Human Rights decided in the Gillan v United Kingdom (2010) that indefinite stop-and-search powers introduced under anti-terror legislation violated Article 8 of the ECHR. The ruling demonstrates the importance of clear safeguards.

In the United States, the Fourth Amendment protects Americans with a constitutional safeguard against unreasonable searches. While its jurisprudence is uneven—permitting intrusive searches in specific custodial contexts – the constitutional framework ensures a continuous dialogue about the proportionality of state power.

By contrast, Australia lacks a federal bill of rights, relying primarily on statutory interpretation and civil claims. As a result, the protection of civil liberties is contingent upon the willingness of the judiciary to draw sharp boundaries around vague statutes. In today’s political climate, where there is a growing pressure to appear “tough on crime”, this is an increasingly fragile protection.

Damages: Vindication or Commodification

The award of $93,000 to Ms Meredith, while significant, elucidates an underlying tension. On one view, compensation vindicates individual rights and deters future misconduct. On the other hand, it risks commodifying civil liberties, reducing serious infringements to a price tag.

More importantly, damages do not necessarily translate into institutional reform. It is not clear whether officers involved in unlawful strip-searches will face internal discipline, let alone criminal liability. Without parallel mechanisms in place, including enhanced oversight, disciplinary action, or statutory reform, the deterrent effect of damages is not sufficient.

Still, reputational costs should not be underestimated, especially in cases so highly publicised. A class action exposing systemic illegality may carry political consequences that financial penalties alone cannot achieve. Public trust in policing, already fragile, could erode further, forcing policymakers to intervene with legislative change.

Reform: Beyond Damages

The Meredith case should be understood less as a conclusion than as a beginning. It should compel government and lawmakers to reconsider how strip-search powers are structured, monitored, and restrained. Possible reforms have been floated, and they should be given the attention that they merit.

1. Clarifying “Serious and Urgent”

The lack of judicial or statutory authority around the phrase enables law enforcement to construe it in its broadest sense. By imposing an objective criterion around it, police officers would not be able to use their discretion as loosely.

2. Mandatory Recording and Oversight

All strip-searches should be audio- or video-recorded (with privacy safeguards), subject to immediate review by independent authorities.

3. Stronger Disciplinary Consequences

Liability must shift from taxpayers to institutions and individuals. Without disciplinary accountability, misconduct is externalised as a cost of doing business.

4. Independent Complaints Mechanisms

Existing bodies like the LECC have investigatory powers but lack teeth. A new oversight body with binding authority could reshape the power imbalance between citizen and state.

5. Raising the Evidentiary Threshold

Courts or legislators might reconsider whether “reasonable suspicion” is sufficient, or whether more robust evidentiary standards should be required for such invasive searches.

6 . Special Protections for Minors

The prospect of children being strip-searched has provoked widespread outrage. Legislative prohibitions, except in the most extreme circumstances, would align with international human rights standards.

Looking Ahead

Evidently, the controversy over police strip searches underscores the fragility of the balance between public safety and individual rights. While intended as a tool of last resort, their routine and often unjustified use has caused harm, eroded trust, and exposed systemic failures in accountability. As the results of future litigation loom, courts and legislators will be compelled to address the deeper institutional issues within policing. Lasting reform will depend on ensuring such powers are exercised rarely, lawfully, and with genuine respect for human dignity.