Last updated 2 September 2019
There are five types of searches:
- scanning search
- general search
- personal search (pat search over clothing avoiding genital and breast areas)
- accommodation search (including possessions)
- strip search.
A scanning, general, personal or accommodation search can be ordered by the general manager or an officer if they suspect a person has something that risks security and good order of the prison. This very broad power cannot be exercised for an improper purpose such as punishment or sexual harassment. The general search power includes the power to search anything in the possession of a person in prison.
The chief executive of Queensland Corrective Services (QCS) is authorised to issue directions to a corrective services officer in relation to strip searching, including the times and/or manner in which prisoners are to be strip searched. The general manager must order strip searches in accordance with the directions. These directions differ depending on security classification of the person in prison and the prison itself.
Prisoners are strip searched upon entering and leaving a prison, irrespective of the purpose. For example, a person will be strip searched upon returning from court, from hospital treatment or upon being transferred from another prison. People who are considered to be at risk of self-harm or suicide are also strip searched, a procedure that many prisoners in crisis perceive as punishment and find extremely stressful in circumstances where they are already having difficulty coping with the prison environment. Incarcerated people are also strip searched before and after contact visits with friends and family, and before a drug test.
In addition to these directions, the general manager may order a strip search to be conducted if they consider that it is necessary for the security and good order of the facility or necessary for the safe custody and welfare of prisoners at the facility. The discretion to require such a search must be exercised lawfully and may be subject to scrutiny by the ombudsman’s office or by judicial review.
A strip search can only be carried out by an officer of the same gender as the prisoner and must be conducted by at least two officers. The Corrective Services Act 2006 (Qld) (Corrective Services Act) also provides that officers must ensure that the way in which the person is searched causes minimal embarrassment, and it must carried out as quickly as possible and allow them to dress as soon as the search is finished.
People in prison must be given the opportunity to remain partly clothed during the search by being allowed to dress the upper half of the body before removing clothing from the lower half (or vice versa) if it is reasonably practicable (s 38 Corrective Services Act).
A prisoner cannot be ordered to undress in the presence or view of a person of the opposite sex, unless that person is a doctor carrying out a medical examination or body search, or someone acting under the direction of a doctor.
All strip searches must be recorded in a register, with details of the persons present and details of anything seized during the search (s 40 Corrective Services Act).
Strip searching may be traumatic for many people and may re-traumatise those who have been victims of sexual assault. Research indicates that an overwhelming majority of women in prison have been victims of sexual assault. The availability of sophisticated technology, which can detect drugs and metal objects without the need for prisoners to remove clothing, is already in use in prisons. This raises questions about the need for mandatory strip search requirements.
Complaints about the manner in which strip searches are carried out may be referred to the Ethical Standards Unit of QCS or the Queensland Ombudsman. For legal advice or assistance, the matter may be referred to Prisoners’ Legal Service.
Internal body cavity searches
Internal body cavity searches can only be carried out by a doctor acting on the authority of the general manager (s 39 Corrective Services Act). In order for an internal search to be lawful, the general manager must reasonably believe that the prisoner has:
- ingested something that may jeopardise their health
- a prohibited thing concealed in their body which poses a risk to the security or good order of the prison
- concealed evidence of the commission of an offence or a breach of discipline by the prisoner.
A nurse must be present during the search, and if the doctor is not the same sex as the prisoner then the nurse must be.
A register must be kept of every body search, with details of anything seized from the prisoner (s 40 Corrective Services Act).
Blood, urine and other body samples
Information on substance testing can be found on the QCS website. The QCS has wide powers under the Corrective Services Act to require test samples of blood, breath, hair or saliva to be taken from prisoners. Breath and urine samples may be collected by prison officers, but only a doctor or a nurse may take a blood, saliva or hair sample. Reasonable force may be used to enable the doctor or nurse to take the sample (s 42 Corrective Services Act).
The most common samples taken in Queensland prisons are urine samples, which are used to detect the presence of prohibited drugs. People in prison may be required to submit to either random testing or a targeted test. The consequences for a positive test are the same for both random and targeted testing.
Testing procedures will first be conducted by on-the-spot testing kits, but must be confirmed by laboratory testing. Before testing, people in prison will undergo a strip search and be allowed to get dressed before the test. The test must be done by two prison officers and an officer in sight of the prisoner must be of the same gender.
Officers should adhere to departmental procedures when collecting samples. The procedures are subject to variation from time to time but may be found on the QCS website. If an officer fails to follow the procedure, and there is a risk that the sample may be contaminated or wrongly identified, any breach incurred by the prisoner as a result should be set aside. Disputes about procedure may be referred to the ombudsman’s office or the Prisoners’ Legal Service.
If a sample tests positive for a prohibited substance, there may be a resulting criminal charge or breach of prison discipline together with consequences for the person’s progress through the prison system. A prisoner cannot incur a breach of discipline where they have been charged and either convicted or acquitted of a criminal offence for the same conduct. A positive result may be referred to the Commissioner of Police to determine whether they intend to prosecute the matter. If police do not intend to prosecute the matter, it will be referred back to the general manager of the prison, and breach proceedings may then be brought against the prisoner.
Recorded drug use in prison will almost certainly impact on decisions about security classification, progression to low security and chances of getting parole. For example, for men in prison, it is not possible to get a transfer to a prison farm (low security facility) within three months of a positive drug test.
If a person is unable to supply a sample without a reasonable excuse (one hour is usually allowed to produce a urine sample), the consequences are the same as for a positive drug test.