Police failure to understand strip search laws leads to illegal searches

Mia Armitage and Aslan Shand

The misuse of strip search powers by police is being investigated by the Law Enforcement Conduct Commission (LECC). Last week evidence was heard specifically in regard to strip searches on children between 10 and 17 years old, at Splendour in the Grass 2018.

According to a statement read to the commission, a sniffer dog came and sat next to a 16 year-old girl, which then led to a strip search. She was told to strip and squat and was not provided with parent, guardian or trusted person as required by law. No drugs were were found in either this strip search of a minor, or 90 per cent of other searches conducted at Splendour. Seven of the searches involved minors.

Sam Lee from the Redfern Legal Centre was at the inquiry and spoke to Echonetdaily saying that, at the hearing, it was clear that the police didn’t have a clear understanding of the laws around strip searches. 

‘It really summed up that police are in a legal vacuum with little to no guidance to know the law of strip searches that should be applied on the ground,’ said Ms Lee.

‘2019 was the first time a procedural manual was supplied that touched on strip searches. It is clear that police don’t understand what “serious and urgent” means, and that they don’t understand what “reasonable grounds” actually means and how they can be met.

‘A sniffer dog by itself is not reasonable grounds for a search. Across the board, sniffer dogs appeared to have been used as the sole grounds for a search.’

Ms Lee went on to say that the police were potentially breaching the Law Enforcement (Powers and Responsibilities) Act (LEPR) by directing action – including coughing, squatting and parting of the buttocks. 

Not paying off

According to local Byron Youth Service (BYS) worker, Deb Pearse, who was interviewed on Bay FM’s Community Newsroom last week, the inquiry has revealed that an ‘enormous amount of police resources were not paying off’.

However, Ms Pearce, who also co-ordinates the Mullum Cottage, as well as Byron Street Crews, said her work with youth had taught her drug dealers sometimes persuaded young women to carry illegal drugs into festivals in return for free drugs.

‘That places them at enormous risk on all kinds of levels, so how we go about stopping those kind of activities I’m not sure,’ she told Bay FM listeners.

‘What we’re doing doesn’t seem to be working, so we need a new approach.’

However, having worked closely with local police she had seen first-hand some of the challenges they are met with when dealing with young people.

‘That’s one night a week where, really, I see the worst of humanity,’ she said of her weekly Street Crew works.

‘Police see that all day, every day, year after year and from what I hear, they don’t get a lot of support,’ she said, ‘like everyone else, they’re overworked’. 

Byron Bay Chief Inspector Matt Kehoe had been ‘great over the years’, she said.

But not all the police at the Splendour festival were local, with the LECC hearing that approximately 340 police officers were hired to work at the festival, along with drug-sniffer dogs.

Strip search program failing

Greens MP David Shoebridge has pointed out that the NSW police’s personal search program is fundamentally failing. Fresh data provided by the Police Minister to the Greens in the NSW Parliament, shows that 76 per cent of personal searches following a sniffer dog indication find no drugs and that 66 per cent of all strip searches also turn up empty. He says that police have advised that 99.5 per cent of sniffer dog indicated searches failed to find sufficient drugs to bring either a supply or ‘deemed supply’ charge.  

‘The NSW Police are routinely humiliating people with their aggressive searches and their own data proves that these searches are fundamentally failing to reduce drug supply,’ said Mr Shoebridge.

‘If any other part of the government had a program that failed three-quarters or two-thirds of the time, then it would be scrapped, but somehow the police’s drug dog and strip search programs are in a special class.

‘Strip searches are often highly traumatising and, as the evidence before the ongoing LECC inquiry proves, regularly carried out illegally by police who don’t understand the law.

‘Of the 11,533 strip searches conducted after a police drug dog detection only 2,757 produced any illegal drugs, and the amounts found were overwhelmingly tiny, leading only to cautions or minor possession charges. In just 59 cases were police able to justify a supply or “deemed supply” charge.’

Cultural issue for police

The hearing is supposed to be reporting by the end of the year but according to Ms Lee they are still gathering information on strip searching.

‘Police are not well educated or informed of the laws around the strip search of a child between the ages of 10 and 17,’ said Ms Lee.

‘The hearing left the impression that there was no acknowledgement by the police that these strip searches are upsetting and traumatic and should only happen in exceptional circumstances. 

‘It can’t just be blamed on individual officers, without looking at the overall culture of the police force, the legislation and guidance to police,’ she emphasised. ‘This situation has been impacted by these factors and led to the current failure and wrongful practice that is currently in this system. 

‘The best outcome would be a review of the legislation, and changes that require police to obtain a court order before a strip search of a child. Also, they should gain a court order before being able to request someone to squat, as we see that as a forensic examination.’ 

Ms Lee said that there needs to be a policy change in the police force in regards to strip searches and a reduction in the number of sniffer dogs at festivals in general.