“Strip Searches Were Never Meant to Be Routine”: RLC’s Sam Lee on the Splendour Class Action

The protocols stipulating when police can carry out strip searches are set out in a piece of legislation commonly known as the LEPRA.

Section 31 of this Act requires that when outside of a police station “the seriousness and urgency of the circumstances” must warrant a strip search as necessary.

Yet, in early 2019, NSW police deployed screens to Sydney’s Central Station, so that following a sniffer dog indication, officers can require commuters to strip off behind them. And the seriousness and urgency of these matters usually results in nothing being found or a small amount of cannabis.

Redfern Legal Centre has long been calling out NSW police on its routine misuse of what’s supposed to be a measure of last resort. While the 2019 UNSW strip search report it commissioned, found that between November 2006 and June 2018 the use of this invasive measure had increased twentyfold.

And now RLC is taking a different avenue in challenging rising strip search use, as it announced last week that it’s teamed up with Slater and Gordon to run a class action on behalf of Splendour in the Grass patrons who may have been subjected to an illegal strip search.

State-sanctioned assaults on teens

As the rising use of strip searches by NSW police was increasingly of concern in the community, state police watchdog the Law Enforcement Conduct Commission (LECC) launched an investigation into the matter in October 2018.

This resulted in the 2020 LECC strip search report, which uncovered a number of suspect searches, including a 15-year-old boy at 2019’s Lost City Festival being asked to lift his testicles to show his “gooch” and a 16-year-old having had an officer rub his hands over his buttocks at the same event.

Then there was the case of a 16-year-old girl at the 2018 Splendour in the Grass Festival, who was not only asked to take off her clothing, but she was ordered to remove her pantyliner so an officer could look under it, before being asked to squat, so the officer could look right up underneath her.

Redfern Legal Centre is currently putting a call out to any patrons who were strip searched at four consecutive Splendour festivals commencing with the 2016 event, as it believes hundreds of festivalgoers were likely illegally searched and, therefore, are warranted just compensation.

Squat and cough remains

A key issue around the way NSW police is conducting its strip searches is that its search manual permits officers to require a subject of a search to lift their testicles, part their buttock cheeks, lift their breasts or squat down. However, none of this appears in the LEPRA.

In its recently released response to the LECC strip search report recommendations, the NSW Police Force has stated that these questionable procedures will continue to be a part of its strip search practices but officers will be cautioned that they’re not to be used routinely.

Sydney Criminal Lawyers spoke to Redfern Legal Centre police accountability solicitor Samantha Lee about what the class action entails, the need for clear amended protocols in the legislation, and how strip searches were never meant to be an everyday part of life in the community.

COVID-19 has quietened things down over the last 20 months. So, considering this lack of movement on the streets, does Sydney still have a strip search problem?

Yes. It still has a problem. We just need to look at the legislation to see it still remains problematic.

Under the law, a child as young as 10 can still be strip searched. And in most situations that we’ve seen, without a parent or guardian being contacted.

People can still be forced to undertake a strip search, where they are asked to squat and cough and lift their testicles.

So, the problem still remains. COVID has put these problems on hold, but it hasn’t eradicated them.

Redfern Legal Centre and Slater and Gordon are launching a class action focusing on patrons who were strip searched at four Splendour in the Grass festivals from 2016 onwards.

Samantha, why the focus on Splendour? And what will the case involve?

It’s a very large annual festival. It takes in a range of age groups. And one thing in particular regarding class actions is the commonality in cases.

At Splendour, you have certain commonalities around police behaviour, instructions and briefings. And then you have commonalities about where the strip searches occurred, who they occurred to and in what kind of environment.

So, they’re the major factors as to why Splendour. Also, we had some people come forward from Splendour in the Grass, who helped us to get a bit of analysis of the case.

Another reason for Splendour, is some of the issues were outlined in the LECC public hearings that took place in regard to strip searches a few years ago.

So, are you still looking for Splendour in the Grass patrons to join the action?

We most certainly are. We are calling on anyone that was searched at Splendour in the Grass from 2016 onwards to come forward and register for the class action, or at least seek further information about it.

And for those in the community who have suffered questionable searches under other circumstances, is it likely there will be further such cases?

Yes. We’re looking to first run this case. But we know that there are similar factors out there that have occurred at other music festivals.

So, we’re hoping this will be a springboard into potential other class actions, but first we need to see how this one goes, before we can go into other territory.

The LECC strip search report called out a number of search measures that don’t appear in the legislation but do in the police search manual. These include requirements to lift testicles or breasts, part buttock cheeks and squat down.

It also raised concerns around the habit some officers have of running their fingertips under the edges of clothing.

NSW police recently responded by confirming these practices in the manual will continue, with a stipulation that they’re not routine, and further that the running of a finger under a person’s waistband doesn’t constitute a strip search.

What are your thoughts on these responses?

There is no doubt that police have made some inroads when it comes to strip searches. A light has been shone onto this practice, which has served to move this issue into territory where it is out in the open.

But until we get some better definitions within the legislation then it’s still open for police to widely interpret a lot of these definitions.

For example, the wording of what is serious and urgent to conduct a strip search needs to be defined, particularly to ensure that strip searches are not conducted for minor drug possession matters.

And until we get some clearer definitions in the legislation, then it would still be open to police to interpret some of these practices as widely as possible, which is exactly what they are doing on the ground.

But I don’t want to set aside the importance of police culture and training. All of these things need to come into play.

The practice of strip searches has been lagging behind for many years now. There has been a pattern of very bad behaviour continuing over a long period of time, and that’s going to take time and effort to try and change.

Strip searches can affect anyone, but they’re most often applied to youths and marginalised people. Why should the broader community be concerned about the normalisation of strip searches?

Strip searches were never meant to be normalised, and they were never meant to be routine. Strip searches were only meant to be undertaken in the most exceptional circumstances. Instead, what we have seen is that they’ve become everyday police practice.

Why should people be concerned? Because these are horrific, invasive practices.

We’ve seen from the coroner’s report that they’ve potentially contributed to young people doubling up on drugs before entering festivals and creating dangerous environments for them.

What we should be concerned about as a society is keeping young people and vulnerable groups safe and not exposed to these dangerous practices.

And lastly, Samantha, RLC commissioned a 2019 UNSW report into strip searches, which made a number of recommendations for improvements. Now, you’re challenging the invasive practice in civil proceedings.

Why take this tactic? And are you hoping for a broader effect beyond the compensation?

A civil proceeding is a way of seeking compensation for the harm caused to potentially hundreds of people in the community who have been strip searched.

But it’s also a means to bring awareness to this practice and to put pressure on NSW police to change it and also put pressure on politicians to support change to the legislation.

We want this practice to be removed from being routine, and back to being what its original intent was, which was to only occur in the most exceptional circumstances.

Images of police with dogs at festivals supplied by anti-drug dog campaign Sniff Off.