Andreea Lachsz, PhD Candidate, University of Technology Sydney and Sarah Schwartz, Lecturer, The University of Melbourne

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

In December, the Victorian Court of Appeal found certain routine strip searches in prison breach human rights to privacy and dignity in detention. The decision highlights how traumatising, unnecessary and degrading the routine practice of strip searching people can be.

In Victoria’s 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-searching processes in other states and territories.

Throughout Australia, police and prison officials conduct strip searches as a matter of routine. They are commonly conducted upon entry into custody, after legal and family visits and hearings, when moving between secure locations or before drug testing.

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

The Victorian Court of Appeal case is an opportunity for real systemic reform. The Victorian government must now decide whether it will maintain this violent practice.

The case of Thompson v Minogue

In 2020, Dr Craig Minogue successfully challenged a prison order that he submit to a urine test and routine strip search before that test. In the Supreme Court, Minogue successfully argued this direction was in breach of his 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.. Although Minogue is not Aboriginal or Torres Strait Islander, VALS believed it was critical to provide the court information on the harmful impact of strip searching and urine testing on First Nations people.

The Victorian Court of Appeal upheld the Supreme Court’s ruling that routine strip searches prior to urine testing breached Minogue’s human rights and the government did not properly consider human rights when making strip-searching policies.

The Court found these routine strip searches were “extremely invasive and demeaning” procedures which can constitute “a severe limitation upon […] privacy and dignity rights”.

Both the Supreme Court and Court of Appeal found the government did not back up its claims that routine strip searches prior to urine tests were necessary or effective. The government did not sufficiently explain why pre-existing and less harmful alternatives, such as x-ray body scanners, were not used.

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

Now, it is up to the Victorian government to decide whether it will implement changes to strip-search policies and laws to end this practice across all police stations and prisons.

The human rights of people in prison

Evidence and data in Australia show strip searches are often over-used, ineffective in uncovering contraband and unnecessary. Strip searches are also prone to being a tool for abuses of power and misconduct.

A 2021 IBAC report exposed serious misconduct in the management and conducting of strip searches in Victoria. Staff were unfamiliar with human rights standards and prisons did not properly investigate complaints about inappropriate searches.

The general manager of Port Phillip Prison was reported to have said strip searches were “one of the options available to assert control” over people in prison. Reports from other states tell the same story of unlawful searches being used to degrade and humiliate prisoners.

Under both the Victorian human rights charter and international law, people in prison are entitled to the same human rights as those outside of prison. This includes a right to privacy, including bodily and psychological autonomy, and to be treated with humanity and respect.

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

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

Strip searches are inherently harmful

There is evidence Aboriginal people are subjected to disproportionate rates of strip searching. Many Aboriginal people who are incarcerated have disabilities and histories of trauma. Strip searches can compound this trauma and impede a person’s ability to recover and heal.

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

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

The evidence is indisputable – strip searches do not work, are inherently harmful, and disproportionately impact Aboriginal people.

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

This article is republished from The Conversation under a Creative Commons license. Read the original article.