Humiliating and potentially unlawful: punitive police tactics cast shadow over music festivals

Michael McGowan
Photograph: Mark Metcalfe/Getty Images

After the music had ended and the the tents were packed away, police reflected on the behaviour of the 37,000 revellers at the 2018 Splendour in the Grass festival.

It was “disappointing”, detective superintendent Wayne Starling said, that despite a “high-visibility police operation” officers “continue to detect the possession and supply of prohibited drugs”.

It’s a common line after music festivals in New South Wales. Police talk about their haul – in this case 115 people issued with field court attendance notices for 148 drug offences – and chastise festival-goers for failing to heed their warnings.

Now, though, attention is turning the other way. This week, an inquiry established by the NSW police watchdog heard that much of the “high visibility” policing at Splendour may have been illegal.

On Monday the Law Enforcement and Conduct Commission opened its investigation into the allegedly illegal search of a 16-year-old girl at the festival.

The inquiry heard the girl was left fearful and in tears after she was forced to strip naked in front of police without a parent, guardian or support person present, potentially a breach of police powers.

Related: 'Extraordinary rise' in strip-searches by NSW police fuelled by use of sniffer dogs

“I could not believe this was happening to me,” the girl said in a prepared statement read out in the inquiry by counsel assisting the commissioner, Peggy Dwyer. “I could not stop crying. I was completely humiliated.”

But as the chief commissioner, Michael Adams QC, made clear this week, the Lecc is also examining the use of search powers more broadly. Adams told the inquiry he was investigating the “conduct of the NSW police force in connection with the application of the laws relating to searches, including, in particular, strip searches, that is or could be unlawful or unreasonable”.

During the inquiry, a senior constable admitted that all 19 strip searches he performed at the festival may have been illegal. It also heard some officers working at the festival were unaware of their obligations when searching minors, that the quantity of drugs seized at the festival was inflated in at least two cases, and that officers were able to “self-verify” drug-seizure reports.

The revelations come at a sensitive time for the NSW government and its police force.

Earlier this year a coronial inquest heard evidence that in some cases a heavy police presence at music festivals may have contributed to drug-related deaths, including in the case of 19-year-old Alex Ross-King, who died after she took an unusually high amount of MDMA because she was afraid of being caught with the drugs by police.

What we now know is that we have had a whole series of children unlawfully strip searched by police officers for no reason.

Greens MP David Shoebridge

This month the coroner’s draft recommendations were leaked to the conservative Sydney tabloid the Daily Telegraph. They revealed the deputy state coroner, Harriet Grahame, would urge the state government to allow pill testing at music festivals, scrap sniffer dogs and instruct police not to punish people caught with drugs for personal use.

In September, the NSW police published a “person-search manual” for the first time. The manual asserts that officers are entitled to instruct people to squat, lift their testicles or breasts, or part their buttock cheeks during a strip search.

This week, some of Australia’s largest music festivals, including Splendour in the Grass, threatened to leave the state over what the industry calls a “punitive” safety regime floated by the government.

“Up until now the NSW police have been able to hide behind a wall of political support from both Labor and the Coalition,” NSW Greens MP David Shoebridge told Guardian Australia. “Well, we’re now seeing behind that political wall because of the coroner and the Lecc’s work.

“And what we are seeing is that how those policing practices work is deeply disturbing, with individuals being routinely humiliated without any justifiable law-and-order outcome.

“What we now know is that we have had a whole series of children unlawfully strip searched by police officers for no reason.”

In NSW, police are permitted to carry out field strip searches only if the urgency and seriousness of the situation requires it. In the case of minors, a parent, guardian or support person must be present during the search unless it’s necessary for the safety of the person, or to prevent evidence being destroyed.

Related: Music festival inquest: police officer allegedly threatened patron with ‘slow’ strip search

The inquiry heard this week that some officers working at the festival did not know their obligation in relation to minors and, in the case of the 16-year-old, there was no justification for initiating the search.

The two officers involved did not make contemporaneous notes before conducting the search, but entries in the NSW police database said after a drug-dog detection the girl had told officers she had been near other people smoking cannabis.

On Wednesday, the officer charged with running the drug-dog operation at the festival was asked whether that justification would be sufficient to search a 16-year-old.

“Not based on what I have just read there,” he said.

“You must be disappointed to read that there, then, given that that is supposed to record a proper justification; correct?” Dwyer asked.

“Correct,” he replied.

The report, he said, was never checked by a more senior officer – usual practice – because officers had been allowed to “self-verify” reports made in the police online database.

I think in the circumstances ... when you are doing all these charges, it is quite easy to get a little bit muddled up

Police officer's statement to LECC inquiry

“We acknowledged that there was a flaw that was allowed to happen, and I totally take responsibility for that,” the senior officer told the inquiry.

The rules around what justifies a strip search in NSW have long been criticised by legal groups. In August, the Redfern Legal Centre released a report with the University of NSW which warned imprecise legal thresholds defining when an officer is able to conduct a strip search meant unlawful use of the practice is “potentially widespread”.

This week, the centre’s police power’s solicitor, Sam Lee, wrote to the Lecc reiterating those concerns, saying the personal search manual released in September “fails to provide police with clear and rigorous guidance regarding the legal thresholds” when conducting personal and strip searches.

Adams seemed to echo those concerns this week, saying he believed police needed a “corporate position” on when the use of strip searches was necessary.

The Lecc also heard that in two cases the quantity of drugs initially recorded by the officer increased significantly in the fact sheet sent to the magistrate, from 0.4g and 1g to 3.18g.

The increase – by 795% in one case and 318% in the other – was potentially significant. In NSW, the point at which a possession charge becomes a more serious traffickable offence is 3g.

During the inquiry, Dwyer suggested to the officer that the problem was that she had merely been copying and pasting between arrest sheets. The officer denied that, saying she had become “muddled up”.

“I think in the circumstances, you know, when you are doing all these charges, it is quite easy to get a little bit muddled up,” she told the inquiry.

“Can you see that if it is quite easy to get a little bit muddled up, there are significant consequences for a patron then going to court to be charged with a serious criminal offence and then sentenced?” Dwyer asked the officer.

“There is a possibility, yes, definitely.”