The New South Wales government has refused to pass laws closing a loophole allowing prison staff to treat children in youth detention as adults, including using “oppressive” fully-naked-body strip searches.
The NSW Ombudsman, Paul Miller, has invoked his rarely used power to force ministers to respond to his investigation into the use of adult strip-search powers against children, saying he was not satisfied the government had taken sufficient steps to address his calls for the law to be overhauled.
Last year, Miller furnished a special report to parliament detailing a case in 2019 when three children in a youth detention center were subjected to a strip search. They were made to undress and spread apart their buttocks completely.
The search occurred in a room monitored by CCTV.
In NSW, youth justice officers can only conduct partial strip searches – meaning children in detention cannot be searched while naked. Youth justice rules also ban using a strip search given CCTV.
But the report raised concerns that a memorandum of understanding signed between youth justice and corrective services NSW allowed those laws to be circumvented.
The 2019 MOU allowed corrective services staff from the general prison population to enter children’s detention centers during a “riot or disturbance”. The wording of that agreement, the ombudsman found, allowed corrections staff to “bring with them all the same powers for the children and young people as they have for adult prisoners in an adult correctional center”.
“In effect, the youth justice center becomes legally ‘cloaked’ as an adult correctional center for so long as the CSNSW officers have control of it so that those officers may lawfully treat the children and young people in that center in the same way,” the report last year found.
But the government has refused to implement the recommendations to overhaul the laws to ban the use of fully naked body searches on children, a decision the ombudsman has now forced them to explain to the state’s parliament.
In a rare use of the ombudsman’s powers to demand a further explanation from the government, Miller published a second report on the issue late last week, saying changes introduced by the government did not address the problem.
The 2019 search of the three children was “oppressive”, “disproportionate to the risk posed”, and “unreasonable”, the ombudsman found. Officers from corrective services were called to the Frank Baxter Youth Justice Centre after a disturbance in which the three young people had climbed onto the roof of a building and “made a series of serious threats to the safety of staff”.
They were eventually convinced to come down from the building, where they were handcuffed and subjected to pat-down searches that found nothing. Officers then conducted a fully naked body strip search which required the children to undress completely.
During the search, the ombudsman found several steps were “unnecessary and inconsistent with policy” and would not have usually been permitted under rules governing youth detention centers.
The report found, for example, that officers inspected the buttocks of one of the children and instructed him to “lift his penis”.
“Fully-naked-body (FNB) strip searches of children and young people are neither necessary nor appropriate and do not reflect good public policy,” Miller found in his special report.
“In our view, the practice of FNB strip searching of young people is not consistent with the principles of trauma-informed practice, as an FNB strip search is almost always a confronting and humiliating experience.”
In the report, Miller made several recommendations to close a loophole that owed fully naked body searches under the remit of the MOU.
The government, he said, should pass laws to “expressly prohibit” fully-naked-body searches of children and young people in detention as well as amending existing regulations to ensure partial-body investigations used “the least intrusive method required to achieve the purpose of the search”.
But the government rejected those recommendations. In a joint reply to last year’s report, the then corrections minister Anthony Roberts and minister for families and community services, Alister Henskens SC, said they did not support any legislative changes.
Instead, the government said the MOU had been updated to give “additional guidance about the respective roles and responsibilities” of corrective services officers called to youth justice centers during cases of disturbances.
But in his latest report, Miller found that under the terms of the new MOU, corrections officers can still conduct fully naked body strip searches on children.
The new MOU, Miller wrote, states that the searches can be conducted where a “risk” is identified but “does not guide as to the circumstances that might constitute such a risk or who is to make that decision”. He found that the new MOU also contains no requirement for officers to record why the search was conducted.
Under the policies, corrective service officers must have reasonable grounds before undertaking a partially clothed strip search on a young person, but not a fully unclothed body search.
Under the powers used by the ombudsman, the government is now required to explain to parliament its response to the report. In a statement to the Guardian, a spokesperson for the community and justice department said it was working through the ombudsman’s report.
The government is rolling out body scanner technology to reduce the need for strip searches in youth detention centers. The spokesperson said the scanners were being rolled out “across all youth justice centers in NSW to improve safety and security for detainees and staff”.
“Youth Justice staff carry out partially clothed body searches to keep centers safe,” the spokesperson said.
“Youth Justice works to ensure the security and safety of Youth Justice centers, detainees, and staff.”