1 In 1988, Craig Minogue was sentenced by this Court to a term of life imprisonment, with a non-parole period of 28 years. In 2018, the Corrections Act 1986 (Vic) was amended so that Dr Minogue may be granted parole only if he is in imminent danger of dying or is seriously incapacitated. He is currently serving his sentence in Barwon Prison.
2 On 4 September 2019, Dr Minogue was required to undergo a random alcohol and drug test. This involved providing a urine sample, after being strip searched. Dr Minogue queried the lawfulness of this requirement, and asked the General Manager of Barwon Prison, Colin Thompson, why it was considered necessary that he submit to this process. Mr Thompson responded that it was a random general test, to which 5% of the total prisoner population is required to submit each month, irrespective of placement or history of use. He explained that the strip search was a standard security measure.
3 Dr Minogue was next required to undergo a random drug test on 1 February 2020. Again, he queried the lawfulness of the requirement. He was advised that Tracy Tosh, who was the Acting Operations Manager, had decided that if he did not provide a urine sample there would be disciplinary consequences. Under protest, Dr Minogue submitted to the strip search and produced a urine sample.
4 On 4 February 2020, Dr Minogue received a visit from his lawyer. He was directed to submit to a strip search, consistent with a policy that all prisoners be strip searched before a visit with any external visitor. Dr Minogue queried the lawfulness of this blanket policy, and refused to be strip searched. The Acting General Manager, Mark Thompson, spoke with Dr Minogue and confirmed that he could not have a contact visit unless he first submitted to a strip search, as required by prison policy and procedure. Dr Minogue opted instead for a box visit with his lawyer. A fortnight later, Dr Minogue received another visit from his lawyer, and again was told that he would be strip searched. On this occasion, albeit under protest, he submitted to strip searches before and after the visit.
5 These three judicial review proceedings are challenges brought by Dr Minogue to the lawfulness of these directions that he submit to random drug tests and to strip searches. Dr Minogue contends that the drug tests and the strip searches were not authorised by the Corrections Act, and were also unlawful under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The defendants — who I will refer to collectively as Corrections — maintain that the policies that require random drug testing and strip searching of all prisoners are supported by the Corrections Act, were adopted after proper consideration had been given to relevant human rights, and are compatible with Dr Minogue’s human rights.
46 In summary, I have determined the following issues in Dr Minogue’s favour in proceedings S ECI 2019 04631 and S ECI 2020 00798:
(a) Proper consideration was not given to relevant human rights in making the directions that Dr Minogue submit to random urine tests on 4 September 2019 and 1 February 2020, in breach of s 38(1) of the Charter;
(b) The directions that Dr Minogue submit to random urine tests on 4 September 2019 and 1 February 2020 were incompatible with his right to privacy, in s 13(a) of the Charter, and his right to be treated with humanity and respect for the inherent dignity of the human person, in s 22(1) of the Charter, in breach of s 38(1) of the Charter;
(c) The strip searches of Dr Minogue on 4 September 2019 and 1 February 2020 were not authorised by reg 87(1)(d) of the Corrections Regulations;
(d) Proper consideration was not given to relevant human rights in deciding to order the strip searches of Dr Minogue on 4 September 2019 and 1 February 2020, in breach of s 38(1) of the Charter;
(e) The strip searches of Dr Minogue on 4 September 2019 and 1 February 2020 were incompatible with his rights to privacy and dignity in detention, in breach of s 38(1) of the Charter.
46 A number of decisions of this Court have outlined what is required of a public authority in order to discharge the obligation to give proper consideration to relevant human rights. It is an obligation of some stringency. The decision-maker must seriously turn their mind to the people who may be affected by the decision, and its possible impact on their human rights. It is then necessary to identify any countervailing interests and obligations, and to balance competing private and public interests as part of the process of justification. Proper consideration of relevant rights must be genuine, not formulaic. However, it need not be a sophisticated legal exercise, and it is not necessary for the decision-maker to formally identify the ‘correct’ rights.
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141 I have found that the strip searches of Dr Minogue before his urine tests on 4 September 2019 and 1 February 2020 were not authorised under reg 87(1)(d) of the Corrections Regulations, because Mr Thompson did not have reasonable grounds to believe that it was necessary for the security or good order of Barwon Prison that every prisoner be strip searched before a random urine test. It follows that these interferences with his privacy were not lawful, and limited his right to privacy. It also follows that the strip searches were not ‘under law’ for the purposes of s 7(2).
142 Further, the evidence relied on by Corrections did not meet the stringent standard of justification, having regard to the matters set out in s 7(2):
(a) The rights that are limited by strip searching are important human rights. In a prison context, the dignity right in s 22(1) assumes particular importance.
(b) The purpose of the limitation is to maintain the integrity of random testing for drugs and alcohol in public prisons, which is a key component of Corrections’ strategy for reducing alcohol and drug related harms in the prison population. The purpose is unquestionably important.
(d) The only evidence of the relationship between the limitation and its purpose was Mr Thompson’s belief that the only effective way of ensuring that a prisoner cannot substitute or adulterate a urine sample is to conduct a strip search of the prisoner before they give the sample. As discussed, the evidence did not establish a reasonable basis for that belief. To the contrary, the evidence is that a more targeted, less intrusive strip searching regime at DPFC has not undermined the effectiveness of random testing at that prison. In addition, the evidence did not establish the effectiveness of Corrections’ longstanding strategy of randomly testing of 5% of all prisoners each month.
(e) There is a less restrictive alternative to a full strip search of every prisoner before a random urine test, in place at DPFC. There was no evidence that this alternative had been considered or tried at Barwon, or that it was not reasonably available.
(f) The human rights impacts of strip searching before random urine testing were not properly considered. The standing order that every prisoner at Barwon must be strip searched before a random general test was not the result of a thorough and well-reasoned human rights analysis.