Essays

Kate Wild

The prevention state: Part four

NSW Police Commissioner Mick Fuller and Minister for Police and Emergency Services David Elliott (left) during a press conference in Sydney, August 2019.

In the face of widespread criticism of strip-searches, NSW Police offers a candid defence of preventative policing: You are meant to fear us.

Stripped and fearful

The headlines are familiar to us all by now: “NSW police officers deny telling 15-year-old boy to ‘show his gooch’ during strip-search”. Or: “NSW Police Minister says he would want officers to strip-search his children”. Or: “NSW police strip-searched more than 100 girls, including 12-year-olds”.

The number of strip-searches performed by NSW Police has skyrocketed in the past five years. Between 2014 and 2018, the use of strip searches by NSW Police increased 46.8 per cent, according to data presented to the Coroner’s Court in a recent inquest.

There are elements of detection and prevention in the police power to perform a strip-search, but it is the preventative side of this equation that made headlines in 2019.

Suspected drug possession is unequivocally the reason for NSW Police conducting strip-searches at music festivals – it was the reason given by police in 91 per cent of cases in 2019. Of the 5483 strip searches conducted in NSW the year before, only 30 per cent resulted in charges, mostly for possession rather than supply.

A recent coronial inquest into the drug-related deaths of six young people at music festivals between December 2017 and January 2019 highlighted the harm police are trying to reduce. But the inquest also brought into sharp relief the harm being done in the name of preventative law and order. 

The question of whether drug dogs and strip-searches are an effective, let alone acceptable way to prevent harm to young people marked the moment this summer that many in the community discovered their threshold for preventative law and order.

Here is how the chain of events rolled out towards that moment. NSW Deputy State Coroner Harriet Grahame had overseen an inquest into drug-related deaths at music festivals. The use of police sniffer dogs and strip-searches was closely examined for their perceived and actual impact as a harm reduction measure.

Before the deputy coroner handed down her findings, the Law Enforcement Conduct Commission (LECC) opened public hearings into the police force’s use of strip-searches. The evidence that emerged from the commission provided images of naked young people being asked to “squat and cough”, and part their buttocks, in strip-searches by NSW Police.

One, a 16-year-old girl, told the commission she was stripped and asked to squat while an officer “looked underneath” her. The officer knew how old she was but did not call her parents, despite the law requiring it. “I could not stop crying,” the girl said. “I was completely humiliated.”

She was one of six children strip-searched at that festival.


Julia Quilter, an associate professor of law at Wollongong University, researches, among other things, the use of police powers in response to identified harms and risks.

“The music festival case is one where we saw one or two stories come out that horrified the community,” Quilter says.

“… And I think that does make the community reflect on the purpose and utility of the exercise of power … because this is the point where police step into the political sphere in responding to issues that question the legitimacy of the way they’re using their power in certain ways.

“They are perceived to be the arm of the state, which enforces, quote unquote, law and order.”

Despite the evidence revealed in LECC hearings, NSW Police Commissioner Michael Fuller and Police Minister David Elliot defended the role strip-searches played as a preventative measure in the government’s war on drugs.

When Deputy Coroner Grahame’s findings were released, they included comment on the counterproductive effect of drug-detection dogs and police strip-searches at music festivals. Grahame went so far as to recommend that drug dogs be “removed from the model of policing at festivals”. She said this based on the evidence of “a link between the use of drug dogs and more harmful means of consumption, including panic ingestion”.

On strip-searches, the deputy coroner recommended the police commissioner limit the use of strip-searches as a method of addressing the potential harm connected with drug possession. The commissioner responded to the recommendation by suggesting that fear was an effective harm prevention tool.

“The reality is,” Fuller told The Daily Telegraph, “we need to be a police force and part of that is searching people ­– which doesn’t make everyone happy – but people need to know there are consequences … They need to have respect and a little bit of fear for law enforcement.”

University of New South Wales legal academic Dr Vicki Sentas says that when Fuller says things like this, he “shows a disregard for the purpose and limits of the law”.

Along with Dr Michael Grewcock, Sentas is the author of the report “Rethinking Strip Searches by NSW Police”, which was accepted as evidence in the inquest overseen by Deputy Coroner Grahame and quoted in her findings.

“Strip-searches are not lawfully meant to be used to scare and intimidate people,” Sentas says.

In her view, and in the view of the deputy coroner, strip-searches are being used by police outside their intended legislated boundaries. 

“There was no discussion around it being used around drug possession,” Sentas says of strip-search laws added to the NSW statute books in 2001. “It was understood around detecting knives, guns … and a really specific sense of protecting public safety from an imminent harm. Strip-searches were understood to be exceptional, to be used as a last resort.”

Thresholds for the use of strip-searches were written into the legislation. The deputy coroner listed these, pointing out that police had little to guide or restrict them because the legislation was so vague. The threshold in the legislation was that to justify strip-searching a suspect, police must first have “reasonable grounds to suspect” the person had something unlawful on them that meant stripping them was necessary for the purpose of the search. Second, that “serious and urgent circumstances” existed that made a strip-search necessary.

A senior constable who performed 19 strip searches at Splendour in the Grass festival in 2018 told a LECC investigation that the idea of urgency had never “come across his radar”.

Despite more than a decade in the force, he said the first time the legal obligation of urgency and seriousness had been mentioned to him was in two separate days of training he’d received after the event.

Sentas says it is an ongoing public concern that there exists such a “mismatch between what the law says and what police do in practice”.

It is a problem that dogs preventative laws, but Professor David Dixon from the University of NSW law school sees a broader political force at play.

“There seems to be a gap between the police and community, which the police are happy with,” Dixon says. “Part of it is just a more general shift towards a kind of authoritarianism in Western societies, where that kind of approach is seen as being, ‘Oh, yes. Well, that’s the way that we should do things.’”

The other part, which concerns Dixon more, is that “politically there is a drift away from, you know, liberal values. There’s less emphasis on them and less interest in them. And it’s worrying that the police are taking that message up.”


University of Western Australia legal academic Dr Tamara Tulich, who specialises in the passage of preventative laws in Australia, says the misapplication of preventative law, of which strip-searching in NSW is one, is a failure of legislators and police. She says it’s “the failure of imagination on the part of the legislature and also a failure in the practise of policing”.

There is a tension in these laws and in their application, one that approaches an abuse of power. There is also a sense that the laws have been written by people who have never imagined they might be applied to them, and never thought through the implications of their broad use.

“That’s where I guess all the concern’s coming from,” says Tulich. “We don't have the kind of restraining principles that we see in existence in the criminal justice system  … Without a bill of rights and without those kind of constitutional protections of our rights, when parliament passes these laws, as long as those laws don’t offend the Constitution there’s not much to restrain or to keep those laws in check.”

 

This is part four of a four-part weekly series, published by both The Monthly and The Saturday Paper.

The prevention state: Part one

The prevention state: Part two

The prevention state: Part three

Kate Wild

Kate Wild is a Walkley Award-winning investigative journalist and author. Her book Waiting for Elijah examines the fatal police shooting of a mentally ill man in New South Wales.

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