It took Peggy Dwyer about 20 minutes to draw a gasp from the public gallery at this week’s hearings into the use of strip-search powers by police in New South Wales.
A 15-year-old boy, Dwyer told the Law Enforcement Conduct Commission, had accused a police officer of telling him to “hold your dick and lift your balls up and show me your gooch” during a potentially illegal strip search at an under-18s music festival in Sydney in February.
Reading from the boy’s statement, complete with 15-year-old speech patterns, Dwyer, the counsel assisting the commission, described how the boy literally shook with nerves as he was forced to strip naked after being stopped on his way into the festival.
“I sort of like froze for a bit I guess like, ’cause I was like, I had my shirt up and then he’s like, alright now like pull your pants down. And I was sort of like, just stood there for a bit like, are you sure?” the boy said in his statement
“Like, do I just pull down my pants and show you everything or like what? And he’s like, no pull down your pants, ah hold your dick and lift your balls up and show me your gooch. And I was like, oh okay.”
At the same festival, a 17-year-old alleged an officer had touched his testicles and “ran his hands” around his buttocks in a circular motion during a search. A 16-year-old, Dwyer told the hearing, was told to “lift up his balls” and “squat and cough”. After he’d complied, the boy asked the police officer: “Why is this happening?”
Across NSW the same question is being asked with increasing urgency as shocking stories about the use of strip-search powers on young people at music festivals continue to emerge.
The latest round of LECC hearings in Sydney this week followed revelations that a 16-year-old girl was fearful and in tears after she was forced to strip naked and squat in front of a police officer who then “looked underneath” her at the Splendour in the Grass festival last year.
Though the officers involved in the February searches denied the specific allegations, all of these stories that the inquiry has heard are underpinned by evidence that many police do not understand the laws governing strip searches.
In each of the three cases detailed this week, the young person was searched without the accompaniment of a parent, guardian or support person.
In NSW, police can only strip-search a minor without an independent person’s presence if an immediate search is deemed necessary to protect the person or prevent evidence being destroyed.
No drugs were found in any of the searches examined by the LECC, and the inquiry has heard over and over that many officers simply do not know it is a requirement.
There is, as the LECC’s commissioner, Michael Adams QC, has repeatedly pointed out, some cause for this.
Before conducting any strip search in the field, police are required to meet a threshold for seriousness and urgency. But the legislation is silent on what that means, leaving it up to individual officers to make a determination.
This week a senior NSW police officer who has commanded operations at some 20 Sydney music festivals said he believed the rules governing searches are too ambiguous.
“Why are we even speaking about ambiguity with the legislation? It shouldn’t even be there,” the officer, who cannot be named, said.
“It should be spelt out what seriousness and urgency is, because I’m sure everyone in this room would have a different opinion.”
Those comments undermine the public relations campaign defending the use of strip-searches by the NSW police commissioner, Mick Fuller, and the police minister, David Elliott. The minister infamously said he would be happy for his children to be strip-searched if “they were at risk of doing something wrong”, after Guardian Australia revealed that 122 girls, including two 12-year-olds, had been strip-searched in the past three years.
But as the criticism of the practice mounts, public support for the practice may be beginning to fade. This week the NSW attorney general, Mark Speakman, indicated the government would likely adopt recommendations made by the LECC after its inquiry is complete.
Speaking after the first day of the inquiry, Speakman admitted that strip-searches were “potentially very traumatising” and that police should use them “appropriately and carefully”.
“To strip-search someone is traumatising for the subjects they strip-search, particularly if they are children, so we want to make sure the balance is right,” Speakman said.
“We want to make sure the police and others clearly understand the law.”
And there is ample evidence police themselves are worried about the practice.
A November 2018 report from the force’s Lessons Learnt Unit, which was quietly made public this week, admitted “there is both a lack of compliance and a lack of consistent application when it comes to the exercise of police powers for the purposes of a strip-search”.
The report found there was an “inconsistent definition and application of powers with regards to strip-searches at music festival” and a “deficiency in strip-search definition”.
The lack of compliance, the document states, “stems from confusion surrounding the definition of a strip-search, and the failure of officers to properly inform the person of interest that they will be undertaking a strip-search”.
It also pointed to an increase in the number of civil litigation suits since 2013, calling it an “organisational risk”.
Greens MP David Shoebridge said this week that the report showed police “have known for at least a year that officers are routinely conducting illegal strip-searches”.
“This whole program needs a serious overhaul but instead of acknowledging the seriousness of the problem the police commissioner has been uncritically backing the illegal searches,” he said.
