Bondi View

Strip-searching police claim ignorance of law

The independent Law Enforcement Conduct Commission found NSW Police illegally strip-searched children after sniffer dogs wrongly detected drugs on them. Photo: Alec Smart

by ALEC SMART

NSW Police officers, who appeared before an Inquiry for undressing and inspecting the genitalia of children for drugs, claimed they were unaware it was illegal – according to reports by the NSW Govt’s police watchdog group Law Enforcement Conduct Commission (LECC).

On Friday 8 May 2020 the LECC released several reports to the Legislative Assembly of NSW Parliament and the public, revealing the results of their ongoing inquiry into the use of strip-searching by the NSW Police Force (NSWPF). The inquiry, which began on 21 Oct 2019, finds police officers are repeatedly violating the Law Enforcement (Powers and Responsibilities) Act 2002 NSW (LEPRA).

LEPRA governs specific police powers, including what constitutes ‘reasonable force’ when subduing a suspect and how to conduct searches both general and naked (strip-searches).

Although an act of law constraining police abuses of power was recommended in 1997 after the Wood Royal Commission into systemic corruption in the NSWPF and its links to organised paedophile networks, it wasn’t framed until 2002 and finally implemented in 2005.

The LECC, announced in Nov 2015, was established in 2017 as a permanent independent investigative commission to provide oversight of the NSW Police Force and NSW Crime Commission.

LECC’s latest submission follows on from their 13 Feb 2020 report, which revealed police officers were employing 113 different versions of standard operating procedures when conducting strip-searches. Many of these involved police utilising “incorrect and inconsistent references” to legislation. (Two police command centres, one of them Kings Cross, employed a general policy of strip-searching almost all incoming prisoners, even if they weren’t arrested for drug-related offences).

“This investigation demonstrates that whatever educational methods are being utilised by the NSWPF to inform officers of their powers and responsibilities,” the LECC report affirmed, “they are not being universally applied in the practice of policing.”

Children strip-searched without parental supervision
Some of the illegal strip-searches occurred even after the detained persons pointed out to the NSWPF officers that they were violating laws, such as children, whose requests for their parents to be present when they were undressed, that were repeatedly refused.

“In each report the commission has found that the involved police lacked the appropriate understanding of the legal requirements regarding the conduct of strip-searches and had not received adequate training,” the LECC declared in a statement.

However, the LECC stopped short at recommending disciplinary charges or pursuing criminal prosecutions of the officers involved, merely advising that the NSWPF improve training and revise their policies, even after one officer conceded to the inquiry that he suspected all 19 strip-searches he conducted at a music festival may have been illegal.

Instead, in their reports the LECC concluded that NSWPF officers either didn’t have sufficient knowledge of the rules or lacked experience or training under the LEPRA statutes.

A NSWPF spokesperson responded to LECC’s 8 May parliamentary reports with the statement: “The NSW Police force is committed to continuous improvement and has developed initiatives to standardise operational orders and enhance compliance.”

Condemnation
There has been widespread condemnation of the use of strip-searching to check for concealed drugs, which has substantially increased in recent years, including the targeting of children, typically at music festivals.

Samantha Lee, head of Police Accountability at Redfern Legal Centre, wrote in the Sydney Morning Herald on 20 Feb 2019: “A strip-search is an incredibly invasive procedure. It generally requires a person to remove all of their clothing and to stand naked in front of two police officers, in an extremely intimidating and unfamiliar environment. It may involve visual inspection of a person’s body and require the person to squat or cough.

“Strip-searches are happening everywhere: at music festivals, on the street, in the back of paddy wagons, in cities and rural areas. The Aboriginal Legal Service has raised grave concerns that Aboriginal children as young as 10 in remote communities across NSW are being subjected to full-body strip-searches in full view of members of the public.”

A report by the Redfern Legal Centre and the University of NSW released on 22 August 2019 revealed that while 91 per cent of strip-searches are carried out on suspicion of drug possession, only 27 per cent find illegal substances.

NSW Greens MP David Shoebridge released figures he obtained from NSWPF in Oct 2019 that revealed the number of strip-searches conducted by them increased from 3735 in 2014-15 to 5483 in 2017-18, a rise of by 47 per cent, with only a 56 per cent success rate. (It wasn’t specified whether narcotics or drugs punishable with a police caution, such as cannabis, were among those confiscated).

“What we saw was a terrible picture of young people being humiliated, police not knowing the most basic features of the law, and a system that could only be described as designed to humiliate and abuse the civil rights of young people,” Shoebridge said.

NSWPF officers conducted 5,362 strip-searches during the 2018-19 financial year. 11,533 drug searches in the same period were implemented after police sniffer dogs detected suspicious substances, however, just 59 of those searches led to drug prosecutions – less than 0.5 per cent.

Media publication of this significant increase in NSWPF strip-searches was what prompted the LECC to announce in Oct 2019 that it would investigate how police powers were being used fairly under LEPRA, underpinning the current inquiry.

Freedom of Information documents obtained in October by Redfern Legal Centre revealed that since 2016 there have been 3,919 strip-searches by NSW Police on women and girls. Young women aged 25 and under accounted for almost half the searches, with 122 of them girls under the age of 18, including two 12-year-olds.

However, the LECC inquiry narrowed their focus to a limited selection of complaints, five in total. These included one of a 16-year-old Aboriginal boy prosecuted for a small amount of cannabis he allegedly discarded in the NSWPF cage truck on the way to his second strip-search at the police station. Arresting officers knew the lad could have been issued a verbal warning under the Young Offenders Act but instead pursued a criminal conviction against him.

The LECC’s 8 May media release stated: “The reports are the result of investigations and hearings conducted by the Commission [into] five matters which concerned strip-searches conducted either in police custody or in public places, such as music festivals or on the street.”

Festival frisking frightmares
The strip-searches of children that the LECC investigated included the following two shocking accounts, which took place at NSW music festivals:

* A 16-year-old girl at the Splendour in the Grass music festival at Yelgun, near Byron Bay, in August 2018 (Operation Brugge).

The girl, who was in an entrance queue when a drug detection dog sat beside her and ‘indicated’ to its handlers that she was a suspect, was led into an open-sided marquis. Then, according to the LECC report, “her phone and ID were taken away from her.. At no point was [she] asked if she had a parent, guardian or anyone present or available to assist her…”

Then she was instructed to undress and told to remove her panty liner, whilst her clothing was inspected by a female police officer. Then, “whilst still completely naked, [she] was then asked to squat on the ground so that the officer could look underneath her. From a distance of approximately 30cm away, the female officer then bent down and looked right up underneath,” inspecting her vagina intimately, despite the fact the girl “could not stop crying” with trauma.

Although this case was disturbing, a total of 513 searches were undertaken by NSW Police at the 2018 Splendour in the Grass Festival, 370 as general searches and 143 as strip-searches. Of them, 7 searches were carried out on “young persons” – ie, children. In five of the latter seven searches, the kids were stripped naked, only 1 of whom had a parent or legal representative in attendance.

* Three teenage boys at the under-18s-only Lost City Music Festival at Olympic Park, Homebush, on 23 February 2019 (Operation Gennaker).

All 10,000 attendees at the alcohol-free event were required to produce identification at the entrance showing they were under 18 years of age.

There were 30 recorded strip-searches of children at the youth-only event: 3 girls and 27 boys. 25 of the 30 recorded searches were conducted without a parent or guardian present. One 13-year-old girl was strip-searched in the presence of a representative from Red Frogs (a volunteer-run support network for youths) who was herself only 17 years old.

According to the Computerised Operational Policing System (COPS), there may have been an additional nine strip-searches, where youths were marched into the enclosed area for a body inspection although it wasn’t recorded whether they were instructed to remove their clothes.

The LECC report states, “Drugs were located nine times, all recorded as MDMA (Ecstasy).” Nine out of a likely 39 stopped-and-searched youths indicates the sniffer dogs utilised by NSWPF at the festival were only capable of a 23 per cent success rate.

Three of the boys who were among the 30-39 strip-searched, none of whom were found to have drugs on their person, were later approached by the LECC to testify to the inquiry. One told them his ordeal began when a police sniffer dog came up to his trouser pocket.

“In the course of the search, he was questioned without first being cautioned; was required to disclose his PIN and hand over his mobile phone, which was searched; was required to pull down his shorts and underpants, and was then told to lift his testicles and show the officers his “gooch” (a slang term for the space between the testicles and the anus). No drugs were found.”

Legality
Laws governing strip-searches specifically prohibit “examination of the body by touch,” nor can it be conducted with force unless there are exceptional circumstances where modest force might be used if a detainee is refusing to comply, and there’s a strong suspicion they might be in possession of a prohibited substance or a weapon.

In the case of minors, strip-searching is unlawful if conducted without a parent or guardian, or someone with the interests of the child (a legal representative to whom the child consents).

The LECC findings released on 8 May confirmed: “None of the strip-searches in the above matters found any prohibited drugs. All resulted in complaints about the conduct of the involved police and, in one case, civil proceedings against the NSWPF.”

The latter resulted in NSWPF paying $112,000 plus legal costs in financial compensation to the victim, a middle-aged man, who was arrested for sitting on a wall in Kings Cross, text-messaging on his mobile phone in the early hours of the morning. He was taken to Kings Cross and detained, his strip-search observed by a female police officer (Operation Sandbridge).

In Feb 2020, documents obtained by the NSW Greens under Freedom of Information laws, revealed NSWPF set a quota of 241,632 searches, for the 2018-19 financial year, including strip-searches, of which 238,923 in total were conducted.

On 18 Nov 2019 NSW Police Commissioner Mick Fuller defended his force’s use of strip-searches, including the controversial targeting of minors, many of them girls under 18 who were made to undress and squat for an inspection.

To reinforce his determination, Commissioner Fuller announced he had sent a video to 17,000 police officers across NSW declaring he supported the continuation of strip-searching, and that any changes to the current policy would lead to an increase in crime.

“People need to know there are consequences, especially those who are criminals or on the verge of being criminals,” Fuller told the Daily Telegraph newspaper. “They need to have respect and a little bit of fear for law enforcement…”

The LECC, an independent statutory body, was established in January 2017 and replaced the Police Integrity Commission, the Police Division of the Office of the Ombudsman, and the Inspector of the Crime Commission in an attempt to simplify oversight of NSW law enforcement. Its remit is to streamline the police complaints system and detect, investigate and expose serious misconduct or maladministration within the NSW Police Force and the NSW Crime Commission.

However, the LECC has its detractors, such as the Police Accountability Project. In June 2017 they contended “its ability to ensure proper police accountability through robust investigations is hamstrung by inadequate investigative powers in relation to some of the most serious misconduct allegations.”

In 2018 Redfern Legal Centre also declared their reservations about the LECC’s effectiveness: “We are concerned about the LECC’s inability to compel the NSWPF to take particular action in relation to a complaint…. Redfern Legal Centre has consistently maintained the position that the NSWPF should not be responsible for investigating their own misconduct…”

LECC’s inquiry into strip-searching continues, with recommendations forwarded to NSWPF to review their Standard Operating Procedures.

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