[Theme music starts]

From Schwartz Media, I’m Elizabeth Kulas. This is 7am.

ELIZABETH:

As the number of strip searches by police rises in NSW, a law enforcement commission considers whether many of them are actually legal. Fiona McGregor on police powers and the trauma of being searched.

[Theme music ends]

ELIZABETH:

Fiona, let's start with Rachel Evans and Susan Price. Where did you meet them for this story?

FIONA:

So I met Rachel Evans and Susan Price for lunch in a cafe in Glebe and they would look like anybody sitting in a cafe in Glebe for the last 30 to 40 years really. No makeup, graying hair, casual white women, middle aged. Not at all the usual profile of people who are getting strip searched.

[Music starts]

ELIZABETH:

Fiona McGregor is a Sydney writer and performance artist. She wrote about the increase in strip searches by NSW police in the latest issue of The Monthly.

FIONA:

In November 2017, Rachel Evans and Susan Price were protesting the detainment of refugees on Manus Island and they were protesting at the Australian Technology Park at Everleigh.

Archival tape — Unidentified male newsreader:

‘A fifth person has now been charged after a Manus Island protest turned violent in Sydney. The 20-year-old man is accused of assaulting Tony Abbott’s sister, Christine Forster as she made her way to…’

FIONA:

It was a demonstration that coincided with a Tony Abbott fundraiser and police blocked any possible movement of the demonstration into Redfern. So Rachel told me that they got kettled, which is a term for when the police form gauntlets either side of people and restrict their movements.

[Music starts]

FIONA:

Then they were grabbed and put into the paddy wagon. People surrounded it saying, let them go, let them go. They saw a guy getting beaten by police outside their windows.

Archival tape:

[Protest crowds shouting]

FIONA:

They were taken to Newtown police station.

[Music ends]

FIONA:

When they got to Newtown Police Station. They weren't charged. They weren't processed in the usual way. Rachel spent no time at the front desk showing them her I.D. She was taken out of the van and straight into the cell where two female officers were.

Archival tape — Rachel Evans:

‘And they said “we’re conducting a strip search”, it was two female police officers. And I thought they meant just take off your top, so I took off my top, they demanded I take off my bra…’

FIONA:

They made her turn around and she saw that there was a video camera.

Archival tape — Rachel Evans:

—’And I said what are you doing, are you recording this? I haven’t given consent. It was really scary and really intimidating.’

FIONA:

Then they asked her to take her pants off. She protested and she said: I've got my period. I want to see your policy. This is not on. And then they said, we'll bring someone else in. And she understood that to be a threat. She understood that they meant they'd bring a man in.

Archival tape — Rachel Evans:

‘The door was open, it was not private. And then they got me to turn around and they frisked me, they touched me. There was no charge, there was no explanation as to why, and then we were told to leave…’

ELIZABETH:

And Susan was also taken to Newtown Police Station. How did she describe her experience of what happens next?

FIONA:

It was Susan's first arrest and they did what's called the half and half, which is take your top off and then take your bottom off. And they got Susan to squat and they told Susan that it was part of their duty of care as someone in their custody. They had friends outside that were asking about their welfare. And the officer at the desk wouldn't confirm they were even in there.

ELIZABETH:

How did they describe what that felt like? Because it sounds pretty traumatic.

FIONA:

Yeah. Look, they were deeply traumatised and very humiliated. You know, possibly many of us have been in those situations where suddenly a lot of power is wielded over you, and even if you think or if you imagine that it's not fair or legal, you comply because you just want to get through the situation. And that's what they did. That's what they say they did, to a certain extent.

ELIZABETH:

What happened next for Rachel and Susan after they left that situation, after they left the police station that day?

FIONA:

They decided to write statements and they sent them to Greens MLC David Shoebridge. The proceedings in Newtown police station had been videoed, but police said they had no record of the event. So then they submitted a government information request, but that was unsuccessful as well. And then the ABC did a story on strip searching and several people were interviewed who'd been strip searched. And Rachel was the only one who didn't request that her features be pixelated out.

That was probably at the end of 2018. And by then, there had been a massive surge in young people complaining that they'd been strip searched.

ELIZABETH:

Hmm.

FIONA:

And Rachel and Susan lodged a statement of claim in June...

ELIZABETH:

Of this year?

FIONA:

Yes. And an internal police investigation into the practice took place in the same month and the results were damning. So the incident with Rachel and Susan was reported to the police watchdog, the Law Enforcement Conduct Commission.

ELIZABETH:

And from the point of their arrest what else is sort of happening at this time?

FIONA:

At that time, there weren't many stories of strip searching in the media. And we're in a period now where there's a lot of media attention to this and we're all becoming a lot more aware of what's going on. And by extension, our rights.

Redfern Legal Center in 2018 launched a campaign called Safe and Sound, mostly targeted at youth to educate people about their rights.

Archival tape — Unidentified female speaker’:

You’re more likely than ever to be strip searched by police in all sorts of places: at music festivals, in regional areas, in the back of police paddy wagons and on the street. If you find yourself in this situation, it’s important to know your rights.’

FIONA:

Redfern Legal Center then commissioned a report from University of New South Wales called Rethinking Strip Searches by New South Wales Police. And that report was very damning. It showed that strip searches disproportionately target indigenous people and youths aged between 18 and 25. And it showed that strip searches have increased in the state by 46.8 per cent over the last four years.

Archival tape — Unidentified female newsreader:

‘Legal experts say strip searches are being used more than ever before, especially in NSW.’

Archival tape — Unidentified female subjected to strip search:

‘I was taken back to the cubicles, where I was strip searched and I was humiliated by police who asked me to squat and cough, and never asked for my consent for this to happen.’

Archival tape — Unidentified female newsreader:

‘...no illegal drugs were found…’

FIONA:

Most of these occur at music festivals. In-field searches at music festivals are now routine. There's been a tent at the entrance to the Mardi Gras party since at least 2015, and there was also an operation that took place outside the Vivid festival that I've personally witnessed last year.

[Music starts]

ELIZABETH:

So this is people going something like Vivid festival being pulled into a tent by police with the potential to be strip searched.

FIONA:

Yes, indeed. And also March 2019, just after Gladys Berejiklian won the election and increased funding to the police to $3.9 billion, temporary booths were set up at Central Station.

ELIZABETH:

Wow. So someone commuting could be asked to step into that tent and potentially be strip searched by police?

FIONA:

Well, they actually were. Yeah.

ELIZABETH:

We’ll be right back.

[Music ends]

[Advertisement]

ELIZABETH:

Fiona we’re talking about a sharp rise in strip searches conducted by police in NSW. What has the reaction to that been? Has there been a legal reaction?

FIONA:

So in June 2019, New South Wales police were made to pay a man $100,000 compensation for unlawfully strip searching him. He was a 53 year old man sitting on a wall in Darlinghurst texting at 3am and he was arrested. There was also a high profile case that had occurred years earlier in Bourke. It was an Aboriginal family, and adults were strip searched in their own home in front of minors and they received $370,000 compensation. There are also apparently quite a lot of cases that are in the pipeline that are being managed privately by lawyers, and that's really accelerated this year.

ELIZABETH:

What happened with Rachel and Susan's complaints?

FIONA:

They had a conference with police. They got an out-of-court settlement for an amount that can't be disclosed. And they received a letter was not written by the police commissioner, Mick Fuller but by the senior superintendent of Inner West Police Area Command and it was given to them by a representative who was emphatically apologetic. But they still don't know what happened to the officers that conducted the search. And when they asked why they'd been searched, all the police could tell them was that they'd been in, in quotes, a communication breakdown.

ELIZABETH:

So, Fiona, what is the legality of this?

FIONA:

Strip searching a person without their consent is in breach of the Law Enforcement Powers and Responsibilities Act, which is often written as LEPRA, which governs police. And there's a clause in there and I quote, ‘suspects on reasonable grounds’. And that has been lambasted for its imprecision by a lot of legal experts, including Samantha Lee Redfern Legal Centre's police power solicitor.

ELIZABETH:

And that was at the centre of the inquiry held by the Law Enforcement Conduct Commission in NSW last week. What did we learn from the four days of hearings?

FIONA:

What we’ve heard this past week, where the commissioner is considering whether the practice is legal or not, ahhhh some alarming stories. One of them is about an officer who strip searched a 16 year old girl at Splendor in the Grass 2018.

Archival tape — Unidentified female newsreader:

‘She says she was taken away to a tent which was beyond the entry gate, taken into a corner and strip searched by a female officer who told her to take off all her clothes, then squat and she says then the officer looked underneath her…’

FIONA:

And, the officer, she says that she can't remember conducting this search. But in giving her evidence, she also said that she commonly instructed people to squat so she could see if they had anything inserted into their vagina or anus. And she says that she was trained that way and has always done this. Now, that happened in 2018, but it was only in September, 2019 that the police issued a manual about strip searching, which laid out the guidelines, enabling them to do it. So ostensibly, if it was done in 2018, it wasn't legal. That's what we're understanding currently.

ELIZABETH:

And Fiona, what else have we learned from the inquiry last week?

FIONA:

Another story is that a police officer has admitted that they noted down the wrong quantities of MDMA on people that had been arrested. And this meant, of course, that the charges were going to be out of proportion to the amount of drugs that the person was carrying.

ELIZABETH:

Hmm.

FIONA:

Another story that came out through the inquiry was that an officer admitted that he'd searched 19 people at a festival and later on admitted that none of those searches were conducted legally.

ELIZABETH:

And how is it only now after doing that 19 times, that he's acknowledging that there may not be no legal basis for what he did?

FIONA:

I think the instructions to police have been vague. And the issue of that, that manual in September this year after these officers have been searching in-field for literally years, makes them even more vague. I think that's one of the problems.

ELIZABETH:

Fiona what does this say about the intersection between policing and politics, and what Australians will accept in that area?

FIONA:

Oh, God. Look, this has been going on for over 20 years in New South Wales, and it's important to remember it's a bipartisan problem. Bob Carr introduced the sniffer dogs and habitually ran elections on law and order platforms. And we've had some flash points of greater, more draconian legislation being written around, for instance, the Olympics and then the pope's visit. Laws restricting public assembly. There was another big change in 2016 under the Mike Baird government with Troy Grant as police minister, where new police powers push through and they passed in minutes. The Labor Party agreed with him, which have had an effect that most people consider turns us into a police state. And I would agree with that.

ELIZABETH:

Why? Why do you think that we're willing to accept this kind of this level of police powers being increased?

FIONA:

It's very complicated. I think that people don't know in a lot of cases. If they do know, they are persuaded that this is for their own good, that they're being kept safe from drugs, from crime, from terrorists. I think at the same time, people have actually become used to this.

[Music starts]

FIONA:

And this is how tyranny starts, is that people are so intimidated in the state of New South Wales, fear in public spaces has become habitual. And the pressure that the police apply then goes down through to the licensing police, through to private security, who are looking after anything from university libraries through supermarkets to nightclubs. And we have all become so accustomed to that kind of pressure.

And I think we don't have enough people in parliament to stop that legislation. And underlying everything is it in New South Wales, we don't have a Bill of rights, which you do have in Victoria and ACT.

ELIZABETH:

Interview tape with Rachel Evans in this episode comes from Channel 10’s The Project.

[Music ends]

[Advertisement]

[Theme music begins]

ELIZABETH:

Elsewhere in the news:

The Australian Competition and Consumer Commission has sued Google, alleging the tech giant misled Google account holders about how they could protect personal data.

The ACCC claims the company breached Australian consumer law after it gave on-screen advice that meant consumers were unaware of how to prevent the collection of their personal data.

And in Melbourne more than 20 activists have been arrested in a clash between protesters and police outside a mining conference. Police used capsicum spray on some protesters, and used horses to force the demonstrators away from the entrance to the building.

Two people have been taken to hospital: a police member with a minor injury, and a woman with leg injuries. A protester said the woman taken to hospital was a 23-year-old demonstrator from Chile, he told ABC "the horse reared up and stepped on both of her legs."

This is 7am. I’m Elizabeth Kulas. See you Thursday.

[Theme music ends]