Rights of Prisoners

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.[1] 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.


Court ruling

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.

Other discussions

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.[27] 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.

                                         xxx                                                    xxx                                                    xxx

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.[121]

(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.

(c) The nature and extent of the limitation is as I have described. Strip searching is a dehumanising procedure.

(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.



A man was arrested. While in police custody, he was subject to mistreatment by the police, for which he went to the hospital. Before the Supreme Court, he sought compensation for his medical bills beyond any compensation for the mistreatment he endured. The Supreme Court of Sri Lanka allowed this medical bill compensation, citing Article 12 of the ICCPR. The Court said, “Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner's wife's choice of the latter was not unreasonable -and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural Rights recognizes the right of everyone "to the enjoyment of the highest attainable standard of physical and mental health" ".


A man was arrested for allegedly stealing bananas. He was detained in a Sri Lankan prison. While in custody, he died. The petitioners claimed that he was subjected to assault by prison authorities and died of the injuries incurred. Such treatment, it was argued, was violative of the man’s constitutional rights. The Supreme Court of Sri Lanka agreed, citing a previous UNHRC case in which a prisoner’s rights under the ICCPR were found to have been violated. The Court also cited standards of prisoners’ rights under the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, as well as the Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Relying in part on these authorities, the Court ruled that the prisoner’s rights under the Sri Lankan constitution had been violated. The Court then said that the respondent prison officials were under a duty to “take all reasonable steps to ensure that the persons kept in the Prison [we]re treated with kindness and humanity.” The Court then awarded the petitioners 1,000,000 rupees (about $8,900USD).


Fiji: State v Boila & Nainoka, FJHC 255 [25 October 2004]

The applicants (B and N) reapplied for bail on the grounds that the conditions of their custody in the 'awaiting trial' block of Korovou Prison were inhumane and degrading. Both had made a previous bail application that was refused because they had escaped from police custody and were unlikely to surrender to the custody of the court.

They described the conditions in which they were held, both stating that prison conditions were in breach of the UDHR, ICCPR and the UNSMRTP. In visiting the facilities upon B and N's invitation, the court found the following: cell blocks had three occupants; there were three mattresses, three pillows and three blankets. The mattresses were damp and the blankets were used to cover the floor. There was one bucket latrine, which was emptied twice a day, one light bulb, one window, no water can, no mosquito nets and no medication for B and N's injuries. Dinner was consumed inside the cell. The Commissioner of Prisons said that on 8 October during the proceedings all remand prisoners had been moved to dormitories with better conditions.


The court refused bail to both B and N. In carefully weighing the arguments of both parties, it referred to Tyrer v U.K [1978] 2 EHRR 1, in which the European Court of Human Rights held that the reason for inhumane treatment is irrelevant because it breaches Article 3 of the ECHR. Similarly, in Seluck Asker v Turkey (12/1997/769/998-999), the right under 'Article 3 of the European Convention enshrines one of the most fundamental values of a democratic society. Even in the most difficult of circumstances … Article 3 makes no provision for exceptions and no derogation from it is permissible … even in the event of a public emergency'.

Reference was also made to the UNSMRTP (Part C) concerning untried prisoners, as B and N were in this case. The rules require that one prisoner is kept in one cell and that there are adequate sanitary facilities.

B and N argued that the conditions in which they were required to live in their cells contradicted the interests of the public. Both had a history of escaping police custody as well as a history of convictions. The offences were serious and there was a real risk of re-offending whilst out on bail. Considering these two issues alone, the court was inclined to refuse bail. However, the second step was to consider whether the conditions were so severely humiliating that they sapped the inherent dignity of the person. In the present case, both B and N were healthy and young, were no strangers to the criminal justice system and were both awaiting trial on multiple charges relating to violence.

The right of each man, woman and child in Fiji to be treated with dignity was an inalienable right. Breaches of s 25 of the CF could never be justified on the basis that Fiji was an underdeveloped country, or that the people of Fiji, because of their poor and simple backgrounds, were accustomed to being treated with inhumanity or disrespect. The prisoners of Korovou Prison, despite the crimes they might have committed against society, deserved to be confined in custody with no further degradation than was inherent in the act of confinement itself.

 Notwithstanding those facts, there were few cells that satisfied the UNSMRTP and s 25 of the CF. If B and N were to remain in the dormitories, conditions would not be as inhumane and degrading as in the 'awaiting trial' block. Therefore B and N were to be remanded in the dormitories where the conditions were not inhumane. Accordingly, bail was refused. However, if there were future complaints about the condition of the holding facilities, bail would be granted without hesitation.


A man was allegedly tortured by the police while in their custody. The man died in custody. The man's widow petitioned the Supreme Court of Sri Lanka on behalf of her deceased husband. The Supreme Court cited the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment and held that the widow not only had the right to file suit on behalf of her deceased husband, but also that there existed in Sri Lanka a constitutionally protected right not to deprive of life, as well as a right to life. The Court said, "The interpretation that the right to compensation accrues to or devolves on the deceased's lawful heirs and/or dependants brings our law into conformity with international obligations and standards, and must be preferred." The Court then ordered a total compensation of 800,000 rupees to the wife and child of the deceased.


Taito Rarasea the appellant appeals against a sentence of six months imprisonment imposed on 20 April 1999 by the learned Chief Magistrate for the offence of escaping from lawful custody contrary to section 138 of the Penal Code Cap. 17 as well as the sanctions imposed by the Commissioner of Prisons pursuant to sections 83(1)A(i) and (vi) of the Prisons Act Cap. 86 (the "Act") as the appellant had also breached paragraph 123(3) of the Prisons Regulations, (the "Regulations"). This consisted of reducing his eight month remission entitlement for the original sentence of two years by one month and seven days and giving him reduced rations for two weeks. In addition the sixty-six (66) days he was at large were added to his sentence under
paragraph 114 of the Regulations.

Section 43(2) of the Constitution allows recourse to be had to international instruments in the interpretation of the Bill of Rights set out therein. Reading article 10 clause 1 with section 25(1) the court is respectfully of opinion that the former reinforces the obligation to ensure that persons in custody are treated humanely and with dignity. This is supported by reference to the preamble, the compact and section 3 of the Constitution. The obligation includes the duty to provide sanctions for prison infractions that have due regard for the dignity of a person. Furthermore, article 11 clause 1 of the International Covenant on Economic, Social and Cultural Rights which has been ratified by the Republic of the Fiji Islands recognises the right of everyone to adequate food. Where a country has ratified an international convention, it is an indication that it will not
take any action inconsistent with its commitments. As was stated by Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353 at 357:

"Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention."

Those dicta are equally relevant to the present case. Any reduction in rations as was meted out to the appellant was not consonant with the Republic of the Fiji Islands undertaking to provide its people with adequate food. Although a state party's obligations under the said covenant are not mandatory, the action taken by the Commissioner was, in the court's respectful opinion, contrary to the spirit of the international instrument mentioned in the use of food as a means of control.

Although article 32(1) of the Standard Minimum Rules for the Treatment of Prisoners issued by the United Nations Commission for Human Rights (the "Minimum Rules") envisages the reduction of diet under medical supervision as an acceptable sanction, the spirit of our Constitution inclines the court to respectfully determine otherwise. It is difficult to reconcile the reduction of prison rations with the respect for human dignity that the preamble to the Constitution proclaims. It must also be borne in mind that the Minimum Rules were first approved in 1957 and clause 3 of its Preliminary Observation recognise "the rules cover a field in which thought is constantly developing." The concept of human rights has evolved since then
and from the vantage point of the Constitution, which came into effect in 1997, has also deepened in its scope.