Strip-search harm must be stopped to protect our young people

Despite this week’s NSW Supreme Court landmark judgment that was scathing of the ongoing and traumatic practice of police strip-searches, young people attending summer festivals can still be subject to the same traumatic procedures, which victims have compared to sexual abuse.

The judgment, from Justice Dina Yehia, is highly critical of this widespread practice, which has been allowed to continue unchecked for many years, despite ongoing concerns from community groups, politicians and harm minimisation advocates.

In 2019, Deputy State Coroner Harriet Grahame warned that strip-searches cause harm to young people and that the law must be reformed.

“While it is clear that Parliament’s intent was that strip-searches were to be used as a last resort and in exceptional circumstances, the reality is far from that,” she said.

The lead plaintiff in the class action brought by Redfern Legal Centre and Slater and Gordon, Raya Meredith, was strip-searched in 2018 at the Splendour in the Grass Festival. After a drug dog indicated, she was directed to a makeshift tented area where she underwent a traumatic strip-search that included a male officer entering while she was undressed. Nothing was found on her.

This judgment clarifies that the authority to conduct strip-searches is limited and strictly regulated, in stark contrast to how police have been conducting them.

Yehia ruled that a strip-search is not an extension of a general search and should not be conducted routinely because it is “highly invasive and intrusive”.

The judgment clarified several important legal points regarding strip-searches.

Firstly, noting that the NSW Police were aware in 2018 that a drug dog’s indication is only 30 per cent reliable, that alone does not provide sufficient grounds to conduct a strip-search.

Neither does a suspicion of minor drug possession meet the criteria.

Where police have formed a reasonable suspicion that justifies a general person search or pat down, that alone cannot be used as a justification for conducting a strip-search. Rather, police must satisfy a three-part test. They must deem that the search is necessary because of the urgency and seriousness of the situation. Officers must make this evaluation independently of a general search.

Also, while police officers can ask a person to remove their clothing, they cannot direct a person to move their body parts. This includes lifting their breasts, moving their penis or testicles.

Finally, an officer can’t direct a person to bend over or otherwise move their body to facilitate visual inspection of the genital and anal area, nor an implied power under legislation to force a person to interact with their body parts.

This judgment establishes the need for significant change in how police conduct strip-searches.

Yet despite the judge’s remarks, which create a legal precedent, current police and operating procedures make it clear that officers can direct people to lift and move body parts, including breasts and buttocks, and use force if necessary.

Young people at music festivals are strip-searched in makeshift tents or cubicles that, as demonstrated in Meredith’s case, offer little to no privacy. These spaces don’t have doors, let alone locks, meaning there is nothing to prevent another officer or a member of the public from walking in.

Humiliating and invasive instructions given by police, such as directions to move body parts, can be overheard by others in nearby tents or cubicles.

With the summer festival season around the corner, this approach needs to change, and quickly.

As the court in Meredith’s case found, the makeshift set-ups fail to meet the legal requirements or provide the necessary safeguards to protect a person’s privacy and dignity.

While the judge acknowledged that the police have made improvements to their standard operating procedures since 2018, I believe these procedures still fail to adequately protect children and young people from harm.

The current NSW Police Force Person Search Procedure Manual tells officers that they can ask individuals to lift their testicles, part their buttocks, lift their breasts, and squat. The manual also states that an officer can use force to conduct a strip-search and may proceed with the strip-search even if nothing has been found on a person after a general search.

The need for reform extends beyond the operating procedures of the police. Laws that permit the strip-searching of children as young as 10 need to change. In the ACT, a child between the ages of 10 and 17 can only be strip-searched if the person has been arrested and charged with an offence, or if a court orders that a strip-search be conducted.

Based on my experience representing many young people of all genders who have undergone strip-searches, I have come to compare the experience to a sexual assault. Most of my clients have been in tears as they share their experiences. Many have not informed their parents because the search was conducted based on minor drug possession allegations, even though no drugs were found on them.

If you are singled out for a strip-search at an event, you should ask the police officer to activate their body-worn video (the decision to turn on the BWV is discretionary). Clearly state to the officer that you do not consent to the search. However, be aware that the officer may proceed with the search regardless. For your safety, it is advisable to be co-operative during the process.

After the search has taken place, write down the details of what happened as soon as possible. Take photos of any injuries you may have sustained, and seek legal advice immediately.

It is essential for the government to read this judgment carefully and take immediate action to prevent future harm to children and young people. In its wake, government inaction would be unconscionable and could also expose the state to a wave of litigation.

The police minister and premier should have shown leadership and intervened years ago. They can act now not just to prevent costly litigation, but to prevent trauma and harm to thousands of children and young people.

Sam Lee is the supervising solicitor at Redfern Legal Centre.