MOU loophole gives legal basis to naked strip searches for young offenders

By Melissa Coade

June 9, 2021

(Image: Adobe/pixelcarpenter)

The NSW ombud has found that Corrective Services NSW had legal authority to conduct completely naked strip searches of three children at the Frank Baxter Youth Justice Centre in 2019 but that the manner of the searches was ‘oppressive’ and ‘unjustified’.

According to NSW ombud Paul Miller, a 2019 memorandum of understanding (MOU) entered into between Youth Justice NSW and Corrective Services NSW — just prior to an incident where young people were subjected to a completely naked strip search — established new rules around how children can be treated in the corrections system. 

Miller’s report to the Department of Communities and Justice about the strip searches of the Frank Baxter youths was tabled in NSW parliament on Tuesday. In his report, the ombud said young people should never be subject to completely naked strip searches and that it was wrong to conduct the searches in view of operational CCTV cameras. He recommended that the state government ensure the loophole be closed.

“It is indisputable that there will be circumstances where it is necessary to conduct searches of young people in youth justice centres [and] in some cases, a search may require the removal of clothing,” Miller said. 

“However, the process for deciding to conduct a search and selecting which search is conducted must be proportionate.”

The report called for law reforms that will ensure young people are never subjected to full-naked-body strip searches by any officer; that any form of search be conducted only when necessary and in private, with appropriate safeguards in place; and that a digital record of all searches on young people in youth detention be kept, especially those searches which remove some or all of a young person’s clothing.

The ombud said that full-naked-body strip searches were standard within the adult correctional system but usually not permitted in youth justice centres, where ‘partially clothed searches’ were more common. 

In partially clothed searches young people are asked to remove their top half of clothing, searched, and then their bottom half of clothing and searched again. This means a visual inspection of the child’s whole body is conducted but they are never completely naked.

In his report, Miller explained how a memorandum of understanding (MOU) entered by the separate entities Youth Justice NSW (YJ) and Corrective Services NSW (CS) meant that completely naked strip searches of young people had become legally authorised. 

“The MOU also authorises the SOG officers to exercise the same powers in respect of young people as they can exercise in respect of adults in the adult correctional system.

“This includes the power to strip search them in a way that would not ordinarily be permitted in youth justice centres,” a statement from the ombud said. 

A departmental merger in 2019 meant that both the authority that runs youth justice centres, YJ, and the authority in charge of adult corrective services, CS, came under the jurisdiction of the combined departments of what became the NSW Communities and Justice. Despite this now shared umbrella by the two agencies, the ombud said that the groups remained independent of one another.

However the effect of the MOU, signed after the departmental merger, created circumstances in which the CS Commissioner could be asked by YJ to ‘take control’ of one of its centres via a special unit named the Security Operations Group.

And that is just what happened when in November 2019 a trio at the Frank Baxter centre climbed up onto the rooftops of several buildings and refused to come down (several reports of riots or sieges at the Frank Baxter centre involve young people gaining access to the roof). While on the roof of the facility, it was reported that the young people also gained access to building materials and tools. 

In response, CS officers were called in to speak with the YJ rooftop inmates. The young people complied with the officers’ request and came down from the use without any need for force.

The trio was then handcuffed and patted down by officers who could not find any weapons or contraband. They were then taken by CS officers to cells with CCTV cameras and subjected to full-naked-body strip searches, again confirming that they were not in possession of any weapons or contraband. 

The ombud made no adverse findings against any individual CS officer in the Security Operations Group involved in the 2019 full-naked-body strip searches but did recommend training for all officers about ‘how to conduct searches of young people in line with YJ search policy and procedure’. 

“Close consideration of incidents of this nature raises questions around whether there is a need for further legislative guidance and protections when searching young people in detention,” the ombud said.

In acknowledging the confronting and potentially traumatic experience that the three young people faced during the naked strip search, the ombud said it was important to make his report public given the need for transparency, and to ensure improved systems and safeguards in future.

Miller also recommended that a comprehensive comparison of the powers (including use of force powers) delegated to YJ and CS get underway. He said it was important to determine whether any powers concerning the treatment of adult offenders should either not apply or be amended where officers were operating in the youth justice system. 


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