Content warning: This story contains details some readers may find distressing.
Strip-searches and urine testing in prison are traumatic and degrading.
Routine strip-searches are often used as a form of power and control by prison guards.
They form part of the continuum of violence and harm wrought by Victoria’s expanding prison system. Aboriginal and Torres Strait Islander people are disproportionately affected by this violence.
Strip-searches involve forcing a person to remove all their clothing, stand with their legs apart, and bend over in full view of prison guards.
Urine testing requires a person to urinate into a container, also in full view of two prison guards.
We have heard women describe strip-searching as mirroring the abuse of violent partners.
One woman at Victoria’s Dame Phillis Frost Centre described being ordered to take a urine test when she was menstruating, in front of three guards, as being one of the worst things she had ever experienced.
We know that people in prison are more likely to be victim-survivors of abuse and sexual violence, to have experienced homelessness and to have a disability.
The harms of incarceration are even more acute for people already marginalised or who have a history of trauma.
Strip-searches and invasive practices compound trauma and impede incarcerated people’s ability to recover and heal.
Critically, there is little evidence that strip searches prevent drug use in prison.
In Tasmania, out of 841 strip-searches of women in prison, only 3 items of contraband were found – one pain medication, one tobacco and lighter, and one tobacco and match sticks. In Western Australia, the Office of the Inspector of Custodial Services found routine strip-searches serve no useful purpose.
This year, there were shocking revelations in NSW of prison guards using strip-searches to disguise the sexual abuse of children as young as 13.
In Victoria, the General Manager of Port Phillip Prison told IBAC that strip searches were “one of the options available to assert control” over people in prison.
Over the last year in Victoria, one prison guard was suspended per week for excessive use of force, smuggling contraband and sexual harassment. An IBAC Inquiry found widespread corruption risks in the prison system and an insufficient accountability for misconduct.
Given the hidden nature of routine strip searching and urine testing practices, and the inherent imbalance of power in prisons, there is often little recourse for people harmed by these degrading practices.
Last week, the Victorian Court of Appeal is being asked to decide whether urine testing and associated strip-searches of people in Victorian prisons violated their rights to privacy and dignity under the Charter of Human Rights and Responsibilities.
There is mounting evidence that Aboriginal people are disproportionately subjected to strip searching.
The Victorian Aboriginal Legal Service (VALS) made submissions to the Court of Appeal about these harms and the impact of strip-searches and urine tests on Aboriginal and Torres Strait Islander people in prison.
VALS has been representing Aboriginal and Torres Strait Islander people in prisons since 1973.
The Wirraway Specialist Legal and Litigation Practice was established in 2020 to focus specifically on cases involving State misconduct. Every day we hear from people who have suffered violence, abuse and discrimination at the hands of police and prison authorities.
Victoria’s criminal legal system and its institutions are built on Australia’s violent colonial history. Aboriginal and Torres Strait Islander people in Victoria are 13.7 times more likely to be imprisoned. Aboriginal women are the fastest growing demographic in Victorian prisons.
The Andrews Government’s harsh bail laws have led to soaring numbers of incarcerated Aboriginal people who have not been found guilty of any offence.
Last year, Craig Minogue successfully challenged orders by the prison to take a random urine test and strip-search before that test. He argued that these orders breached his human rights to privacy and dignity and humane treatment.
The Supreme Court held that authorities had failed to properly consider relevant human rights when making state-wide policies on random urine testing and strip-searching. The Court found there was no evidence that strip searches and urine tests were necessary or effective in minimising drug use in prison. It particularly noted that there was no evidence that less invasive alternatives, such as x-ray scanners or breathalyser tests, had been considered.
In response, the Victorian Government is appealing the Supreme Court’s decision. The Government is arguing that strip-searching and random urine testing practices did not breach the Charter.
VALS is proud to advocate for the interests of Aboriginal and Torres Strait Islander people in this case.
The Victorian Government should end these traumatic and ineffective practices no matter what the Court decides.
By Sarah Schwartz and Andreea Lachsz
Sarah Schwartz is a Senior Lawyer / Advocate in the Wirraway Practice at the Victorian Aboriginal Legal Service.
Andreea Lachsz is the Head of Policy, Communications and Strategy at the Victorian Aboriginal Legal Service.