Strip searches in prison are traumatising breaches of human rights. So, why are governments still allowing them?

Content Disclaimer: This article contains details that readers may find distressing, including discussions of excessive or gratuitous violence, abuse, and mental illness.

In December, the Victoria Court of Appeal found that some routine prison strip searches violated human rights to privacy and dignity in detention. The decision highlights how the common practice of strip searches can be traumatic, unnecessary and degrading.

In Victoria prisons, strip searches involve forcing a person to remove their clothing, stand with their legs apart and bend over in full view of prison guards. There is some variation in strip search processes in other states and territories.

Across Australia, police and prison authorities carry out strip searches on a routine basis. They are typically done upon entering custody, after legal and family visits and hearings, when moving between secure locations, or before a drug test.

For Aboriginal and Torres Strait Islander people, who are more likely to be surveilled, imprisoned, subjected to abuse of power and violence in prisons and strip searched, the court’s decision is significant. Victoria’s criminal and legal systems are built on Australia’s violent colonial history, and routine strip searches are a modern form of that violence.

The Victoria Court of Appeal case is an opportunity for real systemic reform. The Victorian government must now decide whether to continue this violent practice.

Read more: Excessive strip searches highlight discrimination against Indigenous women in the criminal justice system

The Thompson v. Minogue case

In 2020, Dr. Craig Minogue successfully challenged a jail order requiring him to submit to a routine urine test and strip search before that test. Before the Supreme Court, Minogue successfully argued that the directive violated her rights to privacy and dignity in detention. The State of Victoria appealed.

The Victorian Aboriginal Legal Service (VALS) was granted leave to intervene in the appeal as a ‘friend of the court’ to make written and oral submissions. court information on the harmful effects of strip searches and urine tests on First Nations people.

The Victoria Court of Appeal upheld the Supreme Court’s ruling that routine strip searches before urine tests violated Minogue’s human rights and the government failed to properly consider the human rights when developing strip search policies.

The Court concluded that such routine strip searches are “extremely invasive and degrading” procedures which may constitute “a severe restriction on […] right to privacy and dignity”.

The Supreme Court and Court of Appeal found that the government had failed to substantiate its claims that routine strip searches before urinalysis were necessary or effective. The government has failed to adequately explain why pre-existing, less harmful alternatives, such as X-ray body scanners, are not being used.

However, the Court of Appeal reversed the Supreme Court’s decision on the urine tests and found that the procedure did not violate Minogue’s human rights. Minogue sought to appeal this aspect of the decision to the High Court.

It is now up to the Victorian government to decide whether it will implement changes to strip search policies and laws to end the practice in all police stations and prisons.

Read more: Dragging feet on torture prevention: Australia’s international disgrace

The human rights of people in prison

Evidence and data in Australia show that strip searches are often overused, ineffective in uncovering contraband and unnecessary. Strip searches are also likely to be a tool for abuse of power and misconduct.

A 2021 IBAC report revealed gross misconduct in the management and conduct of strip searches in Victoria. Staff were unfamiliar with human rights standards and prisons did not properly investigate complaints of improper searches.

The superintendent of Port Phillip prison reportedly said strip searches were “one of the options available to exercise control” over people in prison. Reports from other states tell the same story of illegal searches used to degrade and humiliate prisoners.

Under the Victorian Bill of Human Rights and international law, those in prison are entitled to the same human rights as those outside prison. This includes the right to privacy, including physical and psychological autonomy, and the right to be treated with humanity and respect.

International law states that, given the harmful impact of strip searches, alternatives such as x-ray scanners should instead be used in prisons.

Independent human rights monitoring in prisons is also essential, including preventive monitoring under the UN Optional Protocol to the Convention against Torture (OPCAT). Australia ratified this protocol, but missed the January 20, 2022 deadline to fulfill its obligations to set up an independent monitoring system for places of detention.

Strip searches are inherently harmful

There is evidence that Indigenous people are subjected to disproportionate rates of strip searches. Many incarcerated Aboriginal people have disabilities and a history of trauma. Strip searches can aggravate this trauma and hamper a person’s ability to recover and heal.

In a 2016 episode of Four Corners, titled Australia’s Shame, footage was shown of a young Aboriginal child from the Northern Territory being stripped naked. This horrified Australians and led to a royal commission.

Years later, however, it is still legal in Victoria and other states and territories to subject Indigenous children to traumatic strip searches.

A prisoner cornered by four Melbourne prison officers and struck in the head during a strip search in 2007.
Image by Ombudsman Victoria/AAP

The evidence is overwhelming – strip searches don’t work, are inherently harmful and have a disproportionate impact on Indigenous people.

Rather than persist in this archaic practice, all Australian governments must end the use of strip searches.

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