A paramedic and firefighter from South Australia writes about access to SA prisons. My correspondent writes:
The local prison has recently done an upgrade of their security system, and are now requiring all staff (and I believe visitors) to have biometric information scanned to obtain access to the facility.
We have issues regarding who from the service actually gets entered – staff turnover, neighbouring stations that may end up responding, or relieving/casual staff working in the region.
I am wondering where we would sit in refusing to have this done, for various personal reasons.
My immediate thought was that there would be some sort of exemption as there is for paramedics and firefighters to access airports. We all know that anyone who wants to go ‘airside’ at an airport has to pass through security checks or have security clearance. This does not, however, apply to ambulance, fire and other emergency personnel (Aviation Transport Security Regulations 2005 (Cth) rr 3.18 ‘Access by emergency personnel’ (Airside); 3.26 ‘Access by emergency personnel’ (Landside); 4.10 ‘Persons who may pass through screening point without being screened’; 4.11 ‘Persons who may enter certain cleared areas other than through screening point’ and 4.62 ‘Persons authorised to have prohibited items that are tools of trade in possession in sterile areas’).
Although I expected to find similar exemptions, I did not. The Chief Executive of the Department of Correctional Services, or an employee of the Department with the Chief Executives delegation, may (Correctional Services Act 1982 (SA) ss 7 and 85B):
(a) cause any person who enters a correctional institution to submit, subject to the person’s consent, to a “limited contact search”, and to having his or her possessions searched, for the presence of prohibited items; or
(b) if there are reasonable grounds for suspecting that a person entering or in the institution is in possession of a prohibited item, cause the person and his or her possessions to be detained and searched; or
(c) if there are reasonable grounds for suspecting that a vehicle entering or in the institution is carrying a prohibited item, cause the vehicle to be detained and searched.
(2) If a person does not consent to a limited contact search, the CE may cause the person to be refused entry to or removed from the institution, using only such force as is reasonably necessary for the purpose.
There is a list of prohibited items in the Correctional Services Regulations 2016 (SA) r 8 but these relate to items sent to prisoners by mail (s 33), goods held by prisoners (s 33A) and items brought in by non-prisoners for delivery to prisoners or without the permission of the Chief Executive (s 51). The list of prohibited items includes prescription and controlled drugs, a syringe or needle and any item that is designed for or capable of causing inflicting bodily harm, such as a knife. Paramedics and fire fighters would carry many of these items as their regular tools of trade. Sections 33 and 33A won’t apply to them. Section 51 relates to non-prisoners. I assume the paramedics and firefighters aren’t intending to give these items to prisoners. Even if they use a needle and syringe to administer a prescribed drug to the prisoner as part of treatment they are not giving the prisoner the needle or syringe nor give possession of the drug to the prisoner. It follows that all that they need to lawfully bring those items into the prison is the permission of the Chief Executive and, in practice, the prison officers.
The first step is, therefore that if the prison rings triple zero and the guards, either on their own initiative or in accordance with any prison emergency response plan, allow the paramedics or fire fighters to enter the prison with their tools of trade, then the paramedics and fire fighters are not committing an offence under the Correctional Services Act or Regulations.
But the prison can set the terms for giving permission to enter. As noted South Australian Correctional Services has introduced a Biometric Enrolment System. The publication Information for Professionals Visiting Prisoners in South Australian Prisons (Department for Correctional Services, Adelaide, v 3 2015) says, at p. 5:
The Biometric Enrolment System (BES) is in use at the Adelaide Remand Centre and Yatala Labour Prison.
At sites that have BES installed, all visitors will be biometrically enrolled and biometrically scanned into and out of the institution.
The BES is used to identify individuals entering and exiting these institutions. The BES provides support to existing infrastructure and dynamic security practices. All persons over the age of 18 years requesting entry into DCS institutions where BES is available must be registered on the BES database.
An iris scan is the primary means of identification for enrolment in the BES with finger scanning utilised as the secondary measure only where an iris scan is not suitable. In addition to the BES scanning process a professional visitor must produce an official photographic identification card or 100 points of identification.
Does that apply to paramedics and firefighters? The document I’ve cited relates to professional visits. It says (at p. 2)
Professional visitors are people who visit a prisoner in a non-domestic capacity, such as legal practitioners, psychologists, chaplaincy, SAPOL, volunteers, support groups and includes DCS staff visiting for the purpose of undertaking assessments or to develop reports (such as Bail or Parole reports).
Fire fighters responding to a fire are not ‘visiting’ prisoners. They are probably quite happy to avoid any contact with prisoners. Paramedics are coming to provide a professional service to an injured or ill prisoner but they are not really ‘visiting’ a prisoner. One of the examples of a ‘professional visitor’ is a person from SAPOL (ie South Australia Police). One can understand that a police officer coming to interview a prisoner about ongoing investigations is ‘visiting’ the prisoner, but a police officer coming to arrest the prisoner or, in an emergency context, the police riot squad coming to assist correctional services staff to put down a prison riot, is not visiting a prisoner even though those police officers will indeed come into contact with prisoners.
Even if the document on professional visits is not relevant to fire fighters or emergency ambulance responders (and it’s certainly not relevant if the person requiring ambulance assistance is a non-prisoner), it does not mean that those people don’t have to be involved in the Biometric Enrolment System. Fire fighters and paramedics are not the only people concerned – see Sean Fewster, ‘Police, lawyers fear prison check puts their safety and privacy at risk’, The Advertiser (Online, May 12, 2013). That article says:
Correctional Services chief executive David Brown said no one was exempt from security screening.
“This is about ensuring that the person who enters the prison is the same person who exits,” he said.
One can see the problem. If David Brown (quoted in 2013) is taken literally, it would follow that paramedics and fire fighters would be delayed whilst they go through the process and whilst that is happening the fire will spread or a prisoner, prison officer or other person in the prison might die. In the right circumstances, a decision to require emergency services personnel to go through the biometric process will beg the question of whether requiring paramedics and fire fighters to go through the process was a ‘reasonable’ response to the competing risks – on the one hand the risk that they will either intentionally or accidentally introduce prohibited goods into the prison and/or facilitate a prisoner’s escape and the risk to the health and safety of those in the prison if the fire fighters or paramedics can’t get in to do their job. If it is not it may be negligent, or perhaps a breach of the Work Health and Safety Act 2012 (SA) to impose those requirements. It follows that it is, in my view, impossible to believe that ‘no one’ is exempt but there is nothing in the Department’s publications or legislation to provide that exemption.
The matter is further complicated by the powers vested in the fire brigades. An officer of the South Australian Metropolitan Fire Service may (Fire and Emergency Services Act 2005 (SA) s 42):
… take, or cause to be taken, any action that appears necessary or desirable for the purpose of protecting the life, health or safety of any person or animal, or protecting property, relevant services or the environment, or for any other purpose associated with dealing with a fire or other emergency or the threat of a fire or other emergency (despite the fact that the action may result in damage to, or destruction of, property or any aspect of the environment or cause pecuniary loss to any person).
Specifically, they may:
(a) enter and, if necessary, break into any land, building, structure or vehicle (using such force as is necessary); [and]
(b) take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing…
A member of staff of the South Australian Ambulance Service may (Health Care Act 2008 (SA) s 61):
… use reasonable force to break into any place if the person believes that it is necessary to do so—
(a) to determine whether any person is in need of medical assistance; or
(b) to provide any person with medical assistance.
A fire fighter or ambulance paramedic can use their authority to enter your private property without your consent so it must be inferred that they can also exercise those powers at a South Australian prison.
If I was to argue the point on principle, I would argue that the Fire and Emergency Services Act 2005 (SA) s 42 trumps the Correctional Services Act 1982 (SA). Where there is a fire in a prison the SAFS can ‘take possession of … or assume control over any land … building, structure … or other thing…’ so they could take control of the prison and direct the prison staff what they are required to do to say, evacuate the prison so they can deal with the fire. If that was not the case the prison authorities would have rights that no-one else has (ie a right to direct the fire service) and there is nothing in the Correctional Services legislation to imply that this extra-ordinary authority is intended.
Paramedics may be entitled to use ‘reasonable force’ to try to enter the prison but are unlikely to succeed in that given that prisons are intended to keep people both in, and out.
None of this discussion is relevant if there is no emergency. Paramedics taking a person for routine transfer to hospital for treatment or providing some onsite clinic can be required to undertake the biometric entrance requirements.
What’s to be done?
This would appear to be a situation where the Department of Correctional Services, South Australian Ambulance and the South Australian Fire and Emergency Services Commission need to get together and develop an appropriate policy. (I might add, I can understand why the Department may not want to publish those policies and prison rules on the world wide web, so the fact that I can’t access them doesn’t mean they don’t exist).
Modern emergency management is based on risk management. The likelihood that there will be an event in a South Australian prison that requires a response by fire and/or ambulance service is inevitable and it could have life threatening implications. It is therefore a risk that should be managed. To manage a risk requires a plan that deals with all aspects including response. The prison authorities need to have a plan, that is negotiated with the fire and ambulance services and the relevant unions, so that everyone knows how access will be arranged in an emergency.
The alternative is that prison officers may stand on their right to control access to a prison whilst firefighters and paramedics seek to exercise their power to force entry to the premises and whilst they are doing that the prison burns, or the patient dies.