The rules governing strip searches in NSW
The teenager stood alone in the line to enter Splendour in the Grass. Unlike her friends, she didn’t have a bag that needed to be checked by security and so planned to meet them inside the gates. As she queued, one of the police sniffer dogs roaming through the crowd sat down beside her and its officer-handler told her she was going to be searched for drugs. With her hands in the air, three officers surrounding her, she was led through the main gates of the music festival, held near Byron Bay, towards the police tents.
“I was really scared because I did not have any drugs on me,” she said in a statement to a recent Law Enforcement Conduct Commission (LECC) inquiry into police strip searches in New South Wales, “and I was completely alone.”
As she waited outside the tent, one of the officers confiscated her phone and identification. “I became really frightened at this stage because I had lost all contact with anyone I knew,” she recalled. She was led into the tent by a female officer who told her to remove her jacket, shorts, leotard and, finally, her underwear.
She said it was only at that point she realised she was going to have to be naked in front of the officer. She was 16 years old at the time. “I could not believe that this was happening to me,” she said. “I could not stop crying. I was completely humiliated.”
The officer then ordered her to remove the panty liner on her underwear, and squat. “I squatted down in front of her,” the teenager said. “She then squatted down and looked underneath me.”
No drugs were found during the strip search. After it was complete, police handed back the teen’s phone and identification and allowed her to enter the festival. When she finally found one of her friends, she started sobbing – it took 20 minutes for her to calm down.
“Every time I saw a police officer at the festival, I started to feel anxious,” she said. “My whole body would clench up and I would get clammy and hot. I was scared to make eye contact with them in case it happened again.”
Because of the strip search, the teen now feels she “can no longer trust police” and is wary about reporting a problem. “In case I am falsely accused again,” she said.
She was one of six children who were unlawfully strip searched at Splendour in the Grass last year without a parent or guardian present. The police officer who, according to police records, searched her – a senior constable for more than seven years at the time of the incident – told the inquiry that asking a person to squat during a strip search was fairly standard: “How I’ve always done it.”
Sam Lee, Redfern Legal Centre’s police powers solicitor, is blunt in her assessment of the Law Enforcement (Powers and Responsibilities) Act 2002, which governs strip searches in NSW. “It’s the only law in NSW that allows two adults holding firearms to order a child as young as 10 to take off all their clothes in a strange environment,” she tells The Saturday Paper. “It fails to adhere to any form of child-protection principles or harm-minimisation principles. It’s an invasive process. It leaves people traumatised.
“If it was done in any other context, it would be seen as an assault, or indecent assault. But because it’s being done by the police, it’s being legally authorised – or supposedly so.”
According to the legislation, a strip search is a search of a person or their possessions that may require an individual to remove all their clothes, which can then be examined by an officer along with their naked body. It cannot include a person’s body cavities, although their mouth can be searched.
Equally equivocal is what the legislation says about when a strip search can be conducted away from a police station – when a police officer “suspects on reasonable grounds” that the “seriousness and urgency of the circumstances” render it necessary.
Last month, NSW Police Force publicly released a new training manual for person searches.
Nine pages long, it did little to clarify confusion surrounding the legislation. What constitutes “serious” or “urgent” circumstances is not defined, but the document does say strip searches “may or may not involve the removal of clothing”.
It also advises officers that they can ask a person to “lift testicles”, “part buttock cheeks”, “lift breasts” and “squat” when conducting a strip search, even though this is not permitted by law. But it simultaneously says “a police officer must not search the genital area of the person, or the breasts of a female or a transgender person who identifies as a female, unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search”.
The manual does make clear that a strip search of a child between the ages of 10 and 18 must be conducted “in the presence of a parent or guardian of the person being searched”. However, it adds this does not apply if an officer suspects that “delaying the search is likely to result in evidence being concealed or destroyed … [or] an immediate search is necessary to protect the safety of a person”.
Without proper guidance there is a risk that officers are commonly breaching the law. Indeed, at the recent LECC inquiry, one officer who conducted 19 strip searches at the 2018 Splendour in the Grass event admitted none of the searches were urgent and, therefore, all were potentially unlawful.
In recent years, the number of strip searches conducted by police has risen dramatically. According to a recent report by Dr Vicki Sentas and Dr Michael Grewcock of the University of NSW, there was nearly a 20-fold increase in searches between 2006 and 2018 in NSW.
The report also found that only a third of all strip searches conducted in the field resulted in charges being laid – 82 per cent of which were for minor drug possession offences.
Personal accounts of those who have been strip searched highlight how this policing technique can be deeply humiliating and traumatising, particularly for individuals who have previously experienced sexual abuse.
The impact is also acute for Aboriginal and Torres Strait Islander people who, according to figures obtained from the Redfern Legal Centre, accounted for about 10 per cent of people strip searched in the field between 2016 and 2017 in NSW despite representing less than 3 per cent of the state’s population.
“For Aboriginal and Torres Strait Islander communities, the trauma of a strip search has a very specific and particular dynamic,” Dr Sentas tells The Saturday Paper. “You can’t divorce it from the role of police during the frontier period when they were involved in outright killing of Aboriginal people, through to the assimilation period when they were involved in controlling and regulating every aspect of Aboriginal people’s lives on reserves, and through to the 1960s and 1970s onwards in relation to the overpolicing and criminalisation of Aboriginal people more generally in public spaces.”
Emily Winborne, the deputy principal solicitor of the Aboriginal Legal Service in western NSW, agrees and says the social impacts are far-reaching. “We see people become more aggressive towards police, more shy of police, and more concerned about going to the police,” she says. “It creates a distrust.”
There is disturbing footage, taken earlier this year on Glebe Point Road in Sydney, of an Aboriginal man being unlawfully strip searched in full public view. He is handcuffed, standing in his underwear on the street as members of the public walk by. He struggles with a male plain-clothed police officer. “I’ve got nothing on me,” he shouts. “This is police brutality.” The officer pins him against a wall, pulls the elastic of his underwear, looks down, and then slams the man against the ground when he refuses to sit.
“You need to be trained properly,” the woman filming tells the officer.
The officer found nothing illegal during the search.
In their report, Sentas and Grewcock conclude that “our laws are not strong enough to protect the public from unnecessary strip searches and do not provide clear guidance to police”. They recommend a range of legislative reforms, including improving the definition of what a strip search actually is, limiting the circumstances where a strip search can be conducted, and prohibiting strip searches of children in the field unless obtained through a court order.
But at a budget estimates hearing in August, NSW Police Commissioner Michael Fuller defended the use of strip searches by NSW Police Force. He questioned the findings of the UNSW report by Sentas and Grewcock, denied that people subject to a strip search are ever forced to strip naked, and insisted there are sufficient safeguards for vulnerable people.
“I review the training, I review the activities,” he said. “I work with oversight and I am satisfied the police are using those powers appropriately. Do we get some things wrong? Yes, we do. I am trying to minimise that obviously in all my actions.”
This article was first published in the print edition of The Saturday Paper on Nov 2, 2019 as "Search tension".
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