Minogue v Thompson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04631

CRAIG MINOGUE	Plaintiff
v
COLIN THOMPSON (in his capacity as the Governor of Barwon Prison)	Defendant

S ECI 2020 00798

CRAIG MINOGUE	Plaintiff
v
REBECCA FALKINGHAM (in her capacity as Secretary to the Department of Justice and Community Safety)	First Defendant
and
TRACY TOSH (in her capacity as a Governor of Barwon Prison)	Second Defendant

S ECI 2020 00822

CRAIG MINOGUE	Plaintiff
v
REBECCA FALKINGHAM (in her capacity as Secretary to the Department of Justice and Community Safety)	First Defendant
and
MARK THOMPSON (in his capacity as a Governor of Barwon Prison)	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2020
DATE OF JUDGMENT:	16 February 2021
CASE MAY BE CITED AS:	Minogue v Thompson
MEDIUM NEUTRAL CITATION:	[2021] VSC 56

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ADMINISTRATIVE LAW – Judicial review – Whether directions that plaintiff submit to random urine tests and orders to strip search plaintiff authorised under Corrections Act 1986 (Vic) – Whether relevant powers must be exercised on an individual basis – Rule of interpretation that singular includes plural – Whether contrary intention appears – Preconditions for exercise of powers – Corrections Act 1986 (Vic), ss 29A, 45 – Corrections Regulations 2019 (Vic), reg 87 – Interpretation of Legislation Act 1984 (Vic), s 37(c) – Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32.

HUMAN RIGHTS – Charter of Human Rights and Responsibilities – Whether proper consideration given to relevant human rights in making decisions to direct that plaintiff submit to random urine tests and to order strip searches of plaintiff – Policy hierarchy within Corrections Victoria – Whether Governor of prison can rely on consideration of human rights by Deputy Commissioner – Content of obligation to give proper consideration to human rights – Whether decisions incompatible with plaintiff’s rights to privacy and to humane treatment while deprived of liberty – Whether rights limited – Whether limits ‘under law’ and demonstrably justified – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 13(a), 22(1), 38(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr LT Brown, Crown Counsel with Ms S Fitzgerald	Matthew Hocking, Victorian Government Solicitor

TABLE OF CONTENTS

Random urine tests and strip searches of Dr Minogue........................................................... 4
Random urine testing................................................................................................................... 8
Alcohol and drug testing in Barwon Prison.................................................................... 8
Question 1:Were the random urine test directions authorised by the Corrections Act? 14
Consideration..................................................................................................................... 17
Question 2:Was proper consideration given to relevant human rights?................ 20
2012 assessment of Instruction 3.10................................................................................ 26
2015 assessment of Instruction 1.05................................................................................ 29
Summary............................................................................................................................. 32
Question 3:Were the directions incompatible with Dr Minogue’s human rights? 33
Consideration..................................................................................................................... 36

Strip searches............................................................................................................................... 40
Strip searches in Barwon Prison...................................................................................... 40
Question 4:Were the strip searches authorised by the Corrections Act and Regulations?.................................................................................................................................. 47
Strip searches before urinalysis tests.............................................................................. 52
Strip searches before contact visits.................................................................................. 55
Question 5:Was proper consideration given to relevant human rights?................ 57
Question 6:Were the strip searches incompatible with Dr Minogue’s human rights? 59

Disposition................................................................................................................................... 62

HER HONOUR:

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.
[1]Corrections Act 1986 (Vic), s 74AB. See also Minogue v Victoria (2019) 372 ALR 623.

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.

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.

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.

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.

The proceedings were heard together on 30 October 2020, and presented the following issues for determination:

In relation to the directions that Dr Minogue submit to a urine test on 4 September 2019 and on 1 February 2020:

(1) Were the directions authorised by s 29A of the Corrections Act?

(2) Was proper consideration given to relevant human rights in making the directions, for the purposes of s 38(1) of the Charter?

(3) Were the directions incompatible with Dr Minogue’s human rights in ss 13(a) and 22(1) of the Charter?

In relation to the strip searches of Dr Minogue before his urine tests on 4 September 2019 and 1 February 2020, and before and after a visit from his lawyer on 18 February 2020:

(4) Were the strip searches authorised by s 45 of the Corrections Act and regs 85 to 88 of the Corrections Regulations 2019 (Vic)?

(5) Was proper consideration given to relevant human rights in deciding to order the strip searches, for the purposes of s 38(1) of the Charter?

(6) Were the decisions to order the strip searches incompatible with Dr Minogue’s human rights in ss 13(a) and 22(1) of the Charter?

I have determined those issues as follows:

In relation to the directions that Dr Minogue submit to a urine test on 4 September 2019 and on 1 February 2020:

(1) The directions were authorised by s 29A of the Corrections Act.

(2) Proper consideration was not given to relevant human rights in making the directions, in breach of s 38(1) of the Charter.

(3) The directions were incompatible with Dr Minogue’s right to privacy, in s 13(a) of the Charter, and his right to be treated humanely and with 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.

In relation to the strip searches of Dr Minogue before his urine tests on 4 September 2019 and 1 February 2020, and before and after a visit from his lawyer on 18 February 2020:

(4) 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, because there were not reasonable grounds to believe that they were necessary for the security and good order of the prison. The strip searches of Dr Minogue on 18 February were authorised by reg 87(2).

(5) Proper consideration was not given to relevant human rights in deciding to order the strip searches, in breach of s 38(1) of the Charter.

(6) The strip searches on 4 September 2019 and 1 February 2020 were incompatible with Dr Minogue’s human rights in ss 13(a) and 22(1) of the Charter, in breach of s 38(1) of the Charter. The strip searches on 18 February 2020 were compatible with Dr Minogue’s human rights.

These are my reasons for those conclusions.

Random urine tests and strip searches of Dr Minogue

Dr Minogue relied on a series of affidavits in which he described the relevant events. His evidence was not disputed by Corrections. It is significant that, since 1991, when random alcohol and drug testing was introduced in Victorian prisons, Dr Minogue has been tested around 70 times and has never tested positive for alcohol or illicit drugs.[2]
[2]S ECI 2019 04631 – Affidavit of Craig Minogue dated 14 May 2020, Exhibit CM-04 – Drug Testing Results Summary.

His first affidavit concerned the direction given on 4 September 2019 that he submit to a urinalysis test pursuant to s 29A of the Corrections Act, to assess whether he had used or consumed any alcohol or any drugs of dependence. A standard part of the testing process is a strip search, which is conducted as follows:[3]
[3]S ECI 2019 04631 – Affidavit of Craig Minogue dated 1 October 2019, [6], quoting Commissioner’s Requirement, Strip Searches in Prisons, Section 1. Security and Control, CR Number 1.2.3, Current Issue Date November 2017.

(a) The person being searched must be instructed to stand facing the first officer. The second officer must remain at a reasonable distance to the side or at the rear of the first officer. The role of the second officer is to witness the conduct of the search and to assist with the searching of garments as required; and
(b) Direct the person being searched to surrender any item carried or in pockets for thorough examination; and
(c) Direct the person being searched to remove footwear and all clothing, one piece at a time (including underwear and socks, where applicable); and
(d) Direct the person being searched to hand each article of footwear and clothing to the officer who will examine and search each item individually, including underwear and socks; and
(e) Direct the person being searched to open their mouth and to remove denture plate if one is worn. The officer will visually examine the mouth, instructing the person being searched to lift the tongue; and
(f) Where there are concerns that the person being searched is secreting contraband in their mouth, a more thorough search may be conducted where the person being searched is to be directed to lift their top lip and lower their bottom lip; and
(g) Direct the person being searched to remove any hair accessories (e.g. hair clips or bands) and have any long hair loose (i.e. not in a plat or braid), bend forward and with a vigorous combing action run fingers through their hair; and
(h) Direct the person being searched to turn their head to the left and right clearing hair from the region of the ears to enable a visual examination of the ear cavities and the area behind the ears; and
(i) Direct the person being searched to raise their arms up in the air and check the armpits, then direct them to lower their arms horizontal to the ground and turn their hands over, palms facing upwards. The officer will then conduct a visual examination and check (particularly for prisoners) for any fresh signs of intravenous drug use, new tattoos or signs of self harm; and
(j) Direct the person being searched to fully extend and separate their fingers to also check for any contraband or intravenous drug use at this time and ask the person being searched to turn their palms over so they can visually examine the backs of the hands; and
(k) Direct male persons being searched, to lift the scrotum and then lift the penis away from the scrotum; and
(l) Direct the person being searched to turn around facing away from the officer and lift one foot at a time from the ground, then wriggle their toes. Officers are to conduct a visual examination of the soles of the feet;
(m) Direct the person being searched to bend over at the waist until the hands are about 30 centimetres from the ground and to part the cheeks of the buttocks with the hands. Officers will then visually examine the person being searched to ensure that they are not secreting any contraband; and
(n) Direct the person being searched to dress and leave the area. Legislation explicitly states that the person being searched is allowed to dress in private immediately after the search is finished.

Before providing a urine sample on 4 September 2019, Dr Minogue was confined in a small holding cell for over an hour, the four walls of which he could easily touch with both outstretched arms. When he was strip searched by two prison officers, he was not allowed to dress in private.

On 7 September 2019, Dr Minogue wrote to the General Manager, Colin Thompson, asking why it was necessary for him to be directed to submit to a urine test, and what consideration had been given to his personal circumstances and to relevant human rights. Mr Thompson responded in a letter dated 18 September 2019, as follows:[4]

I refer to your letter received on 9 September 2019 requesting a statement of reason for the decision to direct you to submit to a urinalysis test.
I note that the type of test you were directed to submit to, was a random general test. As suggested in the name you were required to participate in the process randomly.
Each month 5% of the total prisoner population (randomly selected from the database of prisoners) are required to submit to a urine test. This is irrespective of placement or history of use.
As per Deputy Commissioners Requirement 3.10 - Programs Designed to Reduce Offending Behaviour – Detection and Testing – Drug and Alcohol Use you were directed to provide a urine sample, with the standard security measures in place; being a secure environment and a strip search as is the process in all Victorian correctional centres.

[4]S ECI 2019 04631 – Affidavit of Craig Minogue dated 1 October 2019, [20], Exhibit CM-02.

When Dr Minogue was next directed to undergo a random urine test, on 1 February 2020, he made it clear that he objected to the policy of random general testing. He gave the prison officer responsible for conducting the test a document that detailed his reasons for not wanting to submit to a random general urine test or a strip search, and why he believed that the direction was not authorised by law. The officer was unmoved and directed Dr Minogue into the holding area. While he was waiting there, Dr Minogue also made his case to a prison supervisor.

The supervisor sought direction and then told Dr Minogue that, if he did not provide a urine sample, it would be put down as a refusal and a disciplinary process would start. The possible outcomes of that process included ineligibility for contact visits, being given an Identified Drug User Status, and a monetary fine. The supervisor gave Dr Minogue a cup of water and told him he would be held in isolation until the three hour time limit for providing a sample had expired. He advised that Ms Tosh had made the decision that not submitting to the test and strip search would be put down as a ‘refusal’. After about 30 minutes, Dr Minogue told the prison officer that he would submit to providing a urine sample and to being strip searched, but under protest. He explained that the consequences of not providing a sample ‘are very serious in relation to the quality of my life, such as it is, in prison’.[5] He was strip searched, and then produced a urine sample.
[5]S ECI 2020 00798 – Affidavit of Craig Minogue dated 2 February 2020, [22].

On the morning of 4 February 2020, Dr Minogue was called to a visit with his lawyer. Before he was allowed to meet his lawyer, he was directed by a prison officer to submit to a strip search. Dr Minogue asked why, and was told that it was the policy and process before a visit with any external visitor. He inquired who had made the decision that it was necessary for him to be strip searched for a visit with a lawyer. The response was that it was the process under the Deputy Commissioner’s Instructions. After further representations by Dr Minogue about the legal position, the officer sought out a supervisor. The Acting General Manager, Mark Thompson, became involved and confirmed that policy and procedure required a strip search before a contact visit. Dr Minogue asserted his position that a policy could not make a decision. On that occasion he declined to be strip searched, and had a ‘box visit’ during which he and his lawyer were separated by glass.

The lawyer visited the prison again on 18 February 2020. Dr Minogue was taken from his cell to the strip search room in the unit, and was told ‘Because it’s a contact visit we are going through the strip-search process’. He again disputed the requirement to undergo a strip search, with the prison officers and then with Mark Thompson. They were adamant that they had to follow the policy, which required all prisoners to be strip searched for visits with a lawyer. Dr Minogue submitted to the search, under protest. He was strip searched before meeting with his lawyer, and was allowed to dress in private after the search. After the visit, he was taken back to the strip search room and was strip searched again, under protest. On this occasion he was not able to dress in private; the two prison officers who had conducted the search watched him while he dressed.

Random urine testing

Alcohol and drug testing in Barwon Prison

Corrections relied on an affidavit of Colin Thompson that outlined the policies and procedures for alcohol and drug testing at Barwon Prison, and exhibited relevant documents.

The current strategy for addressing drug use in Victorian prisons is contained in the Corrections Alcohol and Drug Strategy 2015. The Strategy has four goals: supply control, demand reduction, harm reduction, and monitoring and innovation. Random urine testing is one of the tools used by Corrections to achieve both the first and second goals. As explained in the Strategy:[6]

Preventing drugs from entering prisons and deterring drug use and trafficking within prisons is a critical component in maintaining a safe and secure prison environment.
Ideally, the best way to eliminate the harm caused by drugs in prison would be to eliminate the demand for them. However, as it is unrealistic to believe that demand can be completely removed, any more than it can be in the general community, it is necessary to make every reasonable effort to prevent drugs from getting into prisons in the first place. While prevention and deterrence strategies do aim to limit the availability of drugs through detection, interception and prevention, it is hoped that they also have the effect of reducing prisoners’ interest in drug use. To this extent, there is a strong link between the ‘supply control’ goal and the strategy’s second goal of demand reduction (see section 6.2).
Approaches to supply control can be divided into general deterrence and specific deterrence techniques. General deterrence aims to create a climate where prisoners who may be tempted to use or traffic drugs do not do so. This approach is underpinned by the randomness and visibility of the control measures that are employed, and the level of awareness that prisoners (and others) have of these measures and of the management responses and sanctions that are in place.
Specific deterrence complements the more general component by aiming to actively discourage prisoners who are using or trafficking drugs. This is achieved through the credibility of the measures employed to detect and respond to drug use, as well as the enforcement of sanctions.

[6]S ECI 2019 04631 – Affidavit of Colin Thompson dated 15 July 2020 (C Thompson affidavit), Exhibit CT-1 – Corrections Alcohol and Drug Strategy 2015, [6.1.1].

Drug testing of prisoners based on analysis of urine specimens is a key method for detecting drugs in prisons:[7]

Drug testing aims to deter prisoners from using drugs by monitoring for the use of both illegal and prescription drugs. Currently, several drug-testing programs, based on the analysis of urine specimens, operate in Victorian prisons. These include:
•    random general testing: involving random testing of a proportion of the prisoner population each week
•    targeted testing: focused on prisoners who are suspected of drug use
•    random Identified Drug User (IDU) testing: involving more frequent testing each week of five per cent of those prisoners who have been identified as engaging in drug-related behaviours
•    Drug-Free Incentive Program (DFIP) testing: involving even more frequent testing of prisoners who consent to participate in the program.

[7]Strategy, [6.1.2].

The Strategy is implemented in prisons managed by Corrections by a hierarchy of policy directions comprising the Commissioner’s Requirements,[8] the Deputy Commissioner’s Instructions, and local operating procedures adopted for each prison.
[8]The Commissioner’s Requirements also apply to private prisons: C Thompson affidavit, [28].

Mr Thompson exhibited a copy of the Commissioner’s Requirements on the Identified Drug User Program – Category IDU A, dated March 2016.[9] This document provides guidelines for the assessment and application of identified drug user management measures to prisoners who are found to have trafficked drugs into or within prison. It does not address random testing of the general prison population, and is not directly relevant in this case. Random testing is dealt with in a later document, the Commissioner’s Requirements on Drug Testing and Category IDU A, dated June 2020,[10] which was issued after the events that are the subject of these proceedings.
[9]C Thompson affidavit, Exhibit CT-3.
[10]C Thompson affidavit, Exhibit CT-16.

The most relevant Deputy Commissioner’s Instruction is Deputy Commissioner’s Instruction No 3.10 – Programs Designed to Reduce Offending Behaviour – Detection and Testing – Drug and Alcohol Use (Instruction 3.10),[11] issued by Rod Wise, the Deputy Commissioner, Operations, on 7 September 2017. Among other things, it required prison managers to develop a program of random and targeted urine analysis to detect drug and alcohol usage, and to comply with the standardised procedures for the collection and identification of urine samples. In relation to urine test allocations, Instruction 3.10 required:

Each month the General Manager will ensure that:
•    5% of the total prisoner population (randomly selected by PIMS/E*Justice) are required to submit to a urine test. This random general list is generated on a weekly basis. Prison locations have seven days to complete the collection of these samples. These samples are to be identified in PIMS/E*Justice as ‘Random General’.
•    20% of all prisoners with an Identified Drug User (IDU) Status, randomly selected by PIMS/E*Justice, are required to submit to a urine test. This list is generated on a weekly basis. Prison locations have seven days to complete the collection of these samples. These samples are to be identified in PIMS/E*Justice as ‘Random IDU’.
•    Prisoners under suspicion of using or trafficking in illicit substances are targeted for urine testing. This provision will be made under the allocation ‘Governor's Allowance’ and will be used at the General Manager’s discretion. These samples are to be identified in PIMS/E*Justice as ‘Targeted’.

[11]C Thompson affidavit, Exhibit CT-4 – Deputy Commissioner’s Instruction 3.10 on Programs Designed to Reduce Reoffending Behaviour dated 7 September 2017.

The standard urine collection requirements were also specified:

Prior to the collection of urine, the prisoner must submit to a strip search to ensure that no urine substitution or means of adulteration are secreted on their body or clothing. For prisoners that identify as Trans, Gender Diverse or lntersex, the guidelines set out in Commissioner’s Requirement 2.4.1 must be followed. If the prisoner refuses to be strip searched, it will be defined on PIMS as Refusal to Supply a Urine Sample and documented within the Prisoner Urine Sample book. No urine sample is to be taken.
Following the completion of the strip search, the prisoner will be permitted to redress and is required to wash their hands (where such facilities are available).
Gloves must be worn at all times by the officers during the sample collection. Prisoners are to be given the option to wear gloves or wash hands thoroughly prior to giving a sample. Only approved containers can be used for the collection of urine samples.
Prisoners will be taken to the designated location for urine collection (if applicable) and collection officers will reinforce to the prisoner:
•    The procedures for taking a urine sample
•    That he or she is required to give a sample in one continuous stream, of at least 40 mls of urine, which will be decanted into approved containers of at least 20 mls each. …
•    That he or she is required to give the sample in the officers’ presence. (The officer who is collecting or witnessing the collection of a urine sample should, wherever possible, be of the same sex as the prisoner providing the sample);
•    That if at any time during the testing process the prisoner may need to defecate, he/she will be taken to a secure location within the prison to do so and that no additional time (to produce a urine sample) will be added to the overall process. This will NOT take place under direct officer supervision and the prisoner will NOT have in their possession the specimen container). The prisoner will also be required to undertake another strip search when returned to the urine collection area
•    The consequences of refusing to give a sample, of deliberate adulteration or substitution of the sample
•    That she or he will be notified in writing of the results of the test by the General Manager or delegate
•    That the initial sample will be taken for testing and if the result is positive, the prisoner may request that the verification sample be tested at the prisoner's expense. If the verification sample does not confirm the positive result the prisoner will be reimbursed any costs
•    The need to complete a Prisoner’s Urine Sample form

Instruction 3.10 required a urine sample to be collected in a manner that minimised the opportunity for a prisoner to provide a fraudulent or inaccurate sample. Schedule 3.10(1) set out information to be given to a prisoner supplying a urine sample, as follows:

You are required to supply me with a sample of your urine in one continuous stream for drug testing. Failure or refusal to provide a sample within the allotted three hours will constitute an unable/refusal and result in a Disciplinary charge of “Unable/Refuse to Supply a Urine Sample” Regulation 50 (2).
You are required to supply the sample in the presence of two officers; if at any time you try to deliberately adulterate or substitute the sample, you will be charged under Regulation 50 (r)(ii)).
Failure to sign the disclosure section of the Prisoner's Urine Sample form authorising consent will result in all detected substances having the same penalties and conditions as a positive drug screen.
The sample collected will be decanted into two specimen containers; one will be transported to the approved Corrections Victoria pathology company for testing, the other will be secured in a locked prison freezer and may be sent out for verification testing to the approved Corrections Victoria pathology company at your request should you not agree with the initial sample’s result. The cost of testing the verification sample will be paid for in advance by you, with this money being reimbursed to you if the verification result does not confirm the initial result.

Also relevant are the Commissioner’s Requirements for Strip Searches in Prisons (Strip Search Requirements), issued in November 2017, which defines procedures for strip searches in all Victorian prisons, and Deputy Commissioner’s Instruction No 1.05 – Searches and Patrols (Instruction 1.05), which (among other things) sets out when and how strip searches are to be conducted in prisons operated by Corrections.[12] Both documents provide, consistent with Instruction 3.10, that prisoners will generally be strip searched before a urinalysis test.
[12]These are described in detail at [82]–[91] below.

At Barwon Prison, Instruction 3.10 is implemented by Local Operating Procedure No. 3.10-1 – Urinalysis (Urinalysis Procedure), a local operating procedure authorised by the General Manager of Barwon Prison that has been updated from time to time.[13] As at 4 September 2019, the procedure for identifying prisoners for random general urinalysis was:

The Prison Intelligence Unit (PIU) is responsible for distributing the computer generated Commissioners Random General Urinalysis list each Monday, allocating the names into three groups for either Monday, Wednesday or Friday urines and distributing that list to units on the days determined by the PIU. This should take into account known prisoner movements during the week.
Unit staff are responsible for ensuring that the collection of urine samples occurs over the seven day period in the testing week and at varying times throughout the day. Under no circumstances are prisoners to be given advance notice of a urine sample being required.

This procedure was adopted for the purpose of eliminating the predictability of random general urinalysis within the prison by distributing the names of prisoners on the pick list over the course of the week.

[13]C Thompson affidavit, Exhibit CT-5 – Barwon Local Operating Procedure on Urinalysis dated 15 January 2016.

The procedure for collecting the urine sample was then set out:

Area searches will be conducted inclusive of the Urine Cell and Holding Cell/Holding Area. Ensure the required equipment (gloves, sample containers, sample bags, correct registers, electrical tape, security tape, etc.) are available prior to urine collection.
Ensure that a quantity of cups with 200mls of water is ready as each prisoner may consume up to 200 mls per hour over three hours prior to providing a sample.
Identify the prisoners to be tested, from the appropriate Urine List provided by the PIU, and place them into the unit holding cell. Instruct prisoners to remove all items from pockets and leave in cell.
2.1 Collecting the Sample
•    When a prisoner indicates that he is ready to produce [a sample], he is to be removed from the holding area and escorted to the urine collection area
•    Conduct a strip search of the prisoner and have the prisoner get dressed if there are no issues. Staff are to pay particular attention to anything that may be used to adulterate the sample.
•    Prisoners are to wash their hands using soap and or wear gloves prior to handling sample containers and providing the sample.
•    Instruct the prisoner to remove two sample containers from stock provided. Should the prisoner fail to provide a sample, the two sample containers are to be disposed of in a hazardous waste bag.
•    Inform the prisoner that he will be required to supply 40 mls of urine. One sample container shall be filled and half of its contents decanted into the other container. A blue dye may be placed into the water in the toilet to prevent the water being substituted for the sample.
•    Ensure that the prisoner supplies the sample over the toilet bowl. The supervising officer will also ensure that the prisoner can be viewed to minimise risk of adulteration
•    Once the sample has been supplied, instruct the prisoner to adequately secure the lids on both sample containers and wipe down containers to remove any excess urine
•    When complete, have the prisoner place the sample containers on table. Instruct prisoner to wash hands as required
•    Ensure that the bench in the urine collection cell is clean and the toilet has been flushed before the next prisoner is processed.

The Urinalysis Procedure also dealt with refusal to provide a sample:

Where a prisoner advises the collecting officer of his refusal to provide a urine sample at commencement or during the three-hour period from notification the following process should be followed:
•    Prisoner/s who immediately refuse to provide a urine sample will be secured in a sterile, secure area for the three-hour duration upon notification.
•    Prisoner/s who refuse to provide a urine sample during the three-hour period will be instructed to remain in a sterile, secure area for the remainder of the three hours, or until interviewed by the Supervisor.
•    At all times during this process, prisoners are permitted to provide a urine sample.
•    On expiry of the three hour period where a refusal to provide a urine sample remains, the Security Supervisor is to be notified before initiating reports or the commencement of registers to reflect 'Refusal to Provide'.
•    The Security Supervisor will then notify the Operations Manager of each refusal.
•    A report detailing any refusal or unable to supply shall be submitted by both Collection Officers and provided to the relevant Supervisor of the area in which the prison is accommodated.
Note: Refusal of a urinalysis sample from a prisoner will result in the prisoner being isolated for up to 3 hours pending the Supervisor of the area interviewing the prisoner.
The Prison Intelligence Unit will be notified of any prisoner refusing or unable to supply a sample, who will update PIMS.

Urinalysis Procedure was revised on 17 September 2019 and on 28 January 2020. There were some changes to the sections extracted above, most of which are not relevant here. The revision on 28 January 2020 included an instruction under the heading ‘4.1 Collecting the Sample’ that the prisoner must be allowed to redress in privacy immediately after the strip search is finished.

Question 1: Were the random urine test directions authorised by the Corrections Act?

Section 29A of the Corrections Act allows prisoners to be tested for drug or alcohol use. It provides, relevantly:

(1) If the Governor considers it necessary to do so in the interests of the management, good order or security of the prison, he or she may at any time direct a prisoner to submit to tests to assess whether the prisoner has used or consumed—
(a) any alcohol; or
(b) any drug of dependence; or
(c) any Schedule 8 poison or Schedule 9 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981.

(2) Tests under subsection (1)—
(a) must be of a kind approved by the Secretary; and
(b) may include the taking of samples of urine; and
(c) must be carried out by an officer within the meaning of Part 5.

Corrections now refers to the Governor of a prison as its General Manager. It was not in dispute that Colin Thompson was at relevant times the Governor of Barwon Prison for the purposes of s 29A.

Dr Minogue submitted that the power of a Governor under s 29A is a discretionary power that may be exercised if the Governor considers in a particular situation that it is necessary in the interests of the management, good order or security of the prison to direct an individual prisoner to submit to a test. He drew attention to the language of s 29A, in particular its use of the singular ‘a prisoner’ rather than the plural ‘prisoners’. He argued that the formation of the required state of mind necessarily involved some degree of thoughtfulness by the Governor towards the person to be tested, and that the exercise of the intrusive and coercive power in s 29A should be accompanied by individualised justice.

This was absent when, on 4 September 2019, Dr Minogue was required to submit to a random general urine test ‘irrespective’ of his personal circumstances.[14] The random test on 1 February 2020 was also required as a matter of blanket policy, and not because of any consideration personal to Dr Minogue. On both occasions, Dr Minogue argued, no-one actually decided that it was necessary for the management, good order or security of the prison that he should be tested — rather, his name was randomly selected by a computer. He submitted that it followed that the power in s 29A was not lawfully exercised on either occasion.
[14]S ECI 2019 04631 Affidavit of Craig Minogue, [18], Exhibit CM-02.

Corrections responded that s 29A authorises a Governor to direct that certain categories or groups of prisoners, or all prisoners, be tested for alcohol and drugs, if the Governor considers it necessary to do so in the interests of the management, good order or security of the prison. It submitted that s 29A permits a Governor to require prison officers to act in accordance with policy directions. It relied on s 37(c) of the Interpretation of Legislation Act 1984 (Vic) (Interpretation Act), which provides that, unless the contrary intention appears, words in the singular include the plural. The relevant purpose of the Corrections Act, to ‘provide for the establishment, management and security of prisons and the welfare of prisoners’, does not suggest that Parliament intended a contrary operation. Corrections relied on both the practical context of prison management, and the broad powers and duties conferred by the Corrections Act on those managing prisoners, as further support for its contention that the power in s 29A can be exercised on a collective basis. Interpreting s 29A so that the power may only be exercised in relation to individual prisoners would be unworkable, and would be less protective of human rights than interpreting it to be used broadly so as to ensure the safety and security of the prison as a whole.

Corrections submitted that the adoption by Colin Thompson of the Urinalysis Procedure is a lawful exercise of the power in s 29A in respect of prisoners at Barwon Prison. It relied on his evidence to the effect that:

(a) Barwon is a maximum security prison that houses a relatively small cohort of Victoria’s most difficult prisoners;[15]
[15]C Thompson affidavit, [2].

(b) Drug use within a prison threatens the good order and security of the prison, the safe custody and welfare of the prisoners, and the ability of the prison system to contribute to offender rehabilitation;[16]

(c) Random general urinalysis is one of the tools that is used as part of Corrections’ current strategy for addressing drug use in prisons, and its approach to deterring drug use and trafficking in prisons;[17]

(d) He believes that the requirement to urine test 5% of the total prison population each month for drugs is necessary for the security and good order of the prison. He is not aware of any other method that is anywhere near as effective at discouraging prisoners from using drugs.[18]

[16]C Thompson affidavit, [6].

[17]C Thompson affidavit, [7]–[8].

[18]C Thompson affidavit, [10].

Consideration

This is not a case in which a statutory power has been exercised in an individual case in accordance with a policy, and so the authorities concerning the application of policy by administrative decision-makers[19] are not relevant here. The question is whether s 29A authorises broad directions by a Governor that groups or categories of prisoners submit to alcohol and drug tests — including random testing of a fixed proportion of the entire prison population each month, ‘irrespective’ of their personal circumstances. I accept Corrections’ contention that it does, and that the testing of Dr Minogue on 4 September 2019 and 1 February 2020 was authorised by s 29A of the Corrections Act. The relevant direction under s 29A was contained in the Urinalysis Procedure, which bound the prison officers who carried out the tests. The Governor of the prison, Colin Thompson, had the relevant state of mind, believing it necessary for the security of the prison to conduct random drug testing of 5% of prisoners each month.
[19]Discussed in Minister for Home Affairs v G (2019) 266 FCR 569, [58]–[62].

Dr Minogue is right to point out that s 29A is expressed in the singular, in terms of a direction that ‘a prisoner’ submit to a test. However, s 37(c) of the Interpretation Act provides that in an Act, unless the contrary intention appears, words in the singular include the plural. The contrary intention does not appear from the text, context or purpose of s 29A.

The text of s 29A preconditions the exercise of the power on the belief of the Governor as to what is necessary ‘in the interests of the management, good order or security of the prison’. This indicates a broad concern with the entire institution, and all of the prisoners within it. The focus is on the management, good order and security of the prison, not the characteristics or circumstances of any prisoner who may be directed to submit to a test. In addition, because the power may be exercised ‘at any time’ it may be exercised proactively, as a preventive measure, where the Governor believes that to be necessary for prison security.

The purposes of the Corrections Act are, relevantly here, to provide for the management and security of prisons and the welfare of prisoners.[20] Section 29A was inserted into the Corrections Act by the Corrections (Prison Management and Prisoners) Act 1991 (Vic), with a purpose ‘to improve the security and management of prisons and prisoners’.[21] Both the general purpose of the Corrections Act, and the specific purpose with which s 29A was enacted, support reading ‘a prisoner’ to include ‘prisoners’.
[20]Corrections Act, s 1(a).
[21]Corrections (Prison Management and Prisoners) Act 1991 (Vic), s 1(a).

The statutory context in which s 29A appears also supports this reading. Corrections drew particular attention to the broad duties in ss 20 and 21 of the Corrections Act. Section 20(1) obliges an officer in charge of a prison to ‘take all reasonable steps for the security of the prison’; s 20(2) provides that an officer in charge of prisoners ‘must take all reasonable steps for the safe custody and welfare of the prisoners’; and s 21(1) gives the Governor of a prison responsibility for ‘the management, security and good order of the prison and the safe custody and welfare of the prisoners’. The Governor of a prison can be expected to exercise the power in s 29A conformably with these duties. This Court has resisted reading down ss 20 and 21 to apply to specific instances of prisoner welfare, and has instead given them a broad and general operation.[22] A consistent approach should be taken to s 29A.
[22]Knight v Secretary, Department of Justice [2012] VSC 613, [73].

I do not consider that s 32(1) of the Charter is a basis for concluding that the intention of s 29A of the Corrections Act is contrary to s 37(c) of the Interpretation Act. The effect of s 32(1) is that, where a statutory provision has more than one possible meaning, the meaning to be preferred is that which, consistent with the purpose of the provision, is most compatible with human rights.[23] I am not persuaded that interpreting s 29A so that a direction may only be given in respect of one prisoner at a time is the interpretation that is most compatible with human rights. As Corrections submitted, to the extent that interpretation would hinder the Governor from giving directions for the good order and security of the prison as a whole, it could limit the human rights of some prisoners. In any event, the express purpose of the provision is to improve the security and management of prisons and prisoners; it would not be consistent with that purpose to interpret it to require individualised decision-making.
[23]Slaveski v Smith (2012) 34 VR 206, [45]; Nigro v Secretary, Department of Justice (2013) 41 VR 359, [85].

Colin Thompson’s affidavit establishes that he believes that random urine testing in accordance with the Strategy is necessary for the security and good order of Barwon Prison. He said:[24]

I believe that maintaining this level of random urine testing is necessary for the security and good order of the prison. From my conversations with prisoners and prison officers over the years, I know that prisoners are often deterred from taking drugs because they might be detected in a random test with associated disciplinary consequences. I am not aware of any other method of discouraging prisoners from using drugs that is anywhere near as effective as random urine testing. I believe that minimising drug use in prisons is necessary for both prison security and prisoner welfare, and as a result I consider it part of my duty as General Manager to implement policies designed to do this.

[24]C Thompson affidavit, [10].

Although Mr Thompson did not elaborate on the basis for his belief, it was not challenged by Dr Minogue, and there was no reason not to accept it at face value. I am also conscious that Mr Thompson has decades of experience of working in prisons,[25] and that ‘the courts should be slow to tell prison managers what is necessary for the proper management of prisons’.[26] I am satisfied that Mr Thompson held the relevant belief under s 29A when he approved the Urinalysis Procedure.
[25]C Thompson affidavit, [3].
[26]Kaufman v Smith (2001) 124 A Crim R 259, [43].

I find that the directions that Dr Minogue submit to a urine test on 4 September 2019 and on 1 February 2020 were authorised by s 29A of the Corrections Act.

Question 2: Was proper consideration given to relevant human rights?

Section 38(1) of the Charter provides:

Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

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.
[27]Castles v Secretary, Department of Justice (2010) 28 VR 141, [185]–[186]; Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129, [288]–[291], [299] (Tate JA); De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647, [139]–[142]; Certain Children v Minister for Families and Children (2016) 51 VR 473, [182]–[189] (Certain Children (No 1)); Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441, [220]–[225] (Certain Children (No 2)).

Corrections submitted that, in order to determine whether proper consideration was given to relevant human rights in adopting the relevant policies, including Instruction 3.10, I should address the following questions:[28]

Does the material before the Court establish that the relevant prison authorities, at a practical and common sense level and giving some latitude to those authorities given their expertise [in] prison management:
(a) brought to mind the impact of the policies on prisoners’ human rights;
(b) brought to mind the countervailing considerations in the administration of the prison to be weighed against prisoners’ rights; and
(c) balanced the impact of the decision on prisoners’ rights against the countervailing considerations.

[28]Submissions on behalf of the defendants dated 27 July 2020, [77].

I do not accept that this is a correct distillation of the authorities concerning proper consideration, for two reasons.

First, I do not agree that any latitude is to be given to a decision-maker in determining whether that decision-maker gave proper consideration to relevant human rights in making a decision. It is primarily a question of fact whether, in a given case, a decision-maker has given proper consideration to relevant rights, as required by the procedural limb of s 38(1). This is a different exercise from proportionality review of a decision for compatibility with human rights, under the substantive limb of s 38(1).[29]
[29]The nature of proportionality review — i.e. judicial review for compatibility with human rights — was examined by Bell J in PJB v Melbourne Health (2011) 39 VR 373, [309]–[317] (Patrick’s Case).

Corrections submitted that I should ‘give some deference to the balance struck by prison authorities when considering the impact of its policies on prisoners’ in assessing whether those authorities gave proper consideration to relevant rights.[30] This submission relied on Bell J’s consideration in PJB v Melbourne Health (Patrick’s Case)[31] of the nature of proportionality review, and whether the Court should defer to the primary decision-maker.[32] His Honour concluded that the degree of weight to be given to the view of the primary decision-maker depended on the context and circumstances, including ‘the extent to which its decisions are supported and objectively justified by a transparent process of reasoning’.[33] In other words, more weight can be given to a decision-maker’s assessment that a limit on a human right is justifiable, in accordance with s 7(2), where that assessment is the result of a thorough and well-reasoned consideration of relevant rights. The reverse does not apply. Corrections cited no authority to support the proposition that there is any place for deference in determining whether a decision-maker has given proper consideration to relevant human rights.
[30]Submissions on behalf of the defendants dated 27 July 2020, [72]–[73].
[31](2011) 39 VR 373.
[32]Patrick’s Case, [318]–[328].
[33]Patrick’s Case, [325]–[326], citing Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [45]. See also Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420, [26] (Lord Rodger), [37] (Baroness Hale); R (SB) v Governors of Denbigh High School [2007] 1 AC 100, [31] (Lord Bingham).

Second, Corrections’ formulation suggests that proper consideration involves no more than balancing the impact of the decision on prisoners’ human rights against the countervailing considerations of prison administration. There is more to it than that. Proper consideration requires both identifying the human rights impacts of a decision on those it may affect, and, where a right may be limited, assessing whether the limit is justifiable in accordance with s 7(2).[34] Section 7(2) provides:
[34]Bare, [284]–[285], [288]–[291] (Tate JA).

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

The expressions ‘identifying countervailing interests and obligations’ and ‘balancing competing public and private interests’ are used in many of the authorities concerning proper consideration.[35] Those expressions are useful shorthand descriptions of the proportionality analysis that s 7(2) requires. However, they are not to be substituted for the text of the Charter.
[35]For example, Castles, [185]–[186]; Bare, [288]–[291] (Tate JA); De Bruyn, [141]; Certain Children (No 2), [221].

In a prison context, the exercise of justification required by s 7(2) of the Charter requires attention to a wider range of matters than whether the human rights impact of a decision is justifiable in the interests of the management, good order or security of the prison. Section 7(2) also requires a decision-maker to have regard to the nature and extent of the limitation of human rights, the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve that purpose.

I accept Corrections’ submission that whether proper consideration has been given in a particular case is a question of fact that is highly context specific, and that much will depend on the nature of the decision being made and the circumstances in which it is made.[36] The exercise is likely to be more demanding where the decision will affect a large number of people, with diverse characteristics, than in the case of a decision affecting a single person.[37] It is therefore necessary to identify the operative decision in this case, and the decision-maker.
[36]Submissions on behalf of the defendants dated 27 July 2020, [72].
[37]Certain Children (No 1), [187]–[188]; Certain Children (No 2), [491].

There was no specific decision to direct that Dr Minogue submit to a random urine test on 4 September 2019 or 1 February 2020. The prison officers who carried out the tests were following procedure. It was not their decision that Dr Minogue should be tested, and they had no discretion to exempt him from submitting to the test.

The relevant decision here was the approval by Colin Thompson of the Urinalysis Procedure, which prison officers at Barwon were bound to implement in respect of any prisoner selected for random general testing. Mr Thompson explained the obligations of prison officers to comply with policies and procedures, as follows:[38]

Prison officers at Barwon are required as a condition of their employment to comply with the Commissioner’s Requirements, Deputy Commissioner’s Instructions and Local Operating Procedures that govern any particular circumstance they are required to deal with as a part of their work at Barwon. We impose this requirement to ensure prison security and the welfare of prisoners. From a prison management perspective, I consider that it is crucial that prison officers comply with policies to the letter and I consider that any slippage could lead to diminished prison security and negatively impact the welfare of prisoners.

[38]C Thompson affidavit, [36].

Dr Minogue identified the relevant human rights for consideration as the right to privacy, in s 13(a) of the Charter, and the right to be treated with dignity while deprived of liberty, in s 22(1). He pointed out that both the Urinalysis Procedure and Instruction 3.10 are silent on the issues of privacy and dignity of prisoners, and submitted that it was a reasonable conclusion that these rights were not considered in the development or adoption of either document.

Corrections relied on the evidence of Colin Thompson and Lisa Homatopoulos, the Manager of its Operations Directorate, to demonstrate that proper consideration was given to relevant human rights. Much of this evidence, and the submissions that were based on it,[39] was not to the point. It is reassuring to know that Mr Thompson, Ms Homatopoulos, and Corrections staff at all levels have received human rights training,[40] that Corrections’ policy development process incorporates an assessment for compatibility with the Charter,[41] and that a range of information about Charter rights is available to all Corrections staff.[42] This was general evidence that did not address the question of what consideration was given to human rights in developing and adopting the Urinalysis Procedure.
[39]Submissions on behalf of the defendant dated 27 July 2020, [82].
[40]C Thompson affidavit, [3]; S ECI 2019 04631 – Affidavit of Lisa Homatopoulos dated 13 July 2020 (Homatopoulos affidavit), [16].
[41]Homatopoulos affidavit, [4]–[5].
[42]Homatopoulos affidavit, [17], exhibits LH-10, LH-11, LH-12.

Mr Thompson’s evidence was that Barwon Prison’s local operating procedures are drawn directly from the Commissioner’s Requirements and the Deputy Commissioner’s Instructions, and are designed to operationalise them. When he approved the Urinalysis Procedure, he was aware that the Department of Justice and Community Safety and Ms Homatopoulos had conducted an assessment of the Charter implications of the relevant Commissioner’s Requirements and Deputy Commissioner’s Instructions, and that the Department’s Human Rights Unit had been involved in the development of the original policies.[43] He continued:[44]

Because I knew that the Commissioner’s Requirements and Deputy Commissioner’s Instructions were made following a process that was intended to involve proper consideration of the impact on the human rights of prisoners for the purposes of s 38(1) of the Charter, I was careful to ensure that the Local Operating Procedures at CT-6, CT-7, CT-10 and CT-11 were consistent with those policy documents. I also know, and have known for many years, that the process of urinalysis testing and strip searching engage a prisoner’s rights to privacy and to humane treatment while deprived of liberty and that they must be performed with care in order to ensure they do not disproportionately limit those rights. That is why the Local Operating Procedures implement processes that as much as possible respect the dignity of prisoners, including their right to privacy and humane treatment, whilst providing testing and strip searching regimes that are effective and not subject to corruption (as I illustrate further below). On that basis, I was satisfied that the Local Operating Procedures were designed in a way that limited those rights as little as possible while maintaining the integrity of the urine testing and strip searching regimes, which I considered essential for the reasons already explained.

The urinalysis policies allow for the normal procedure to be adapted if there is a compelling reason, including a prisoner possessing attributes that mean their human rights would be particularly affected by testing. For example, prisoners who are unable to provide a urine sample under supervision should be given the opportunity to provide the sample in private. Transgender, gender diverse and intersex prisoners are, where possible, given the opportunity to nominate the gender of the supervising prison officer. Muslim prisoners should be allowed to provide urine samples after sunset during Ramadan.

[43]C Thompson affidavit, [31].

[44]C Thompson affidavit, [31]–[32].

I understood this to mean that Mr Thompson did not himself give consideration to human rights when he approved the Urinalysis Procedure, because he believed that this had been done in the development of Instruction 3.10, and he was careful to ensure that the Urinalysis Procedure was consistent with Instruction 3.10. He was therefore satisfied that the Urinalysis Procedure, which he considered to be essential for the good management and security of the prison, respected the privacy and dignity of prisoners as much as possible while maintaining the integrity of the testing regime.

I accept that Corrections operates hierarchically, with policies and procedures developed centrally by the organisation’s leadership and implemented in prisons by local management. In that setting, it makes perfect sense for the leadership to take responsibility for assessing those policies and procedures for compatibility with the Charter. Provided that is done properly, there is no difficulty with a General Manager such as Mr Thompson relying on the Deputy Commissioner to give proper consideration to relevant human rights when issuing a Deputy Commissioner’s Instruction, in this instance Instruction 3.10.

In her affidavit, Ms Homatopoulos outlined Corrections’ general approach to considering human rights when developing and reviewing the Commissioner’s Requirements and Deputy Commissioner’s Instructions. She is aware that Corrections has undertaken Charter assessments and reviewed these policies against the Charter since 2006. They are regularly reviewed, at least annually, and are adapted to better protect the human rights of prisoners, staff and visitors. In her experience, the primary countervailing consideration is security and safety, matters that ‘often limit some human rights for prisoners, even if they protect others’ because ‘the security and safety of the prison will be unacceptably compromised without those limits’.[45]
[45]Homatopoulos affidavit, [6].

2012 assessment of Instruction 3.10

Ms Homatopoulos exhibited the Charter assessment for the 2012 version of Instruction 3.10, which she prepared.[46] She explained that there was no Charter assessment undertaken for the 2017 version of Instruction 3.10, because the changes to it were administrative in nature.[47]
[46]Homatopoulos affidavit, [9] and exhibit LH-2.
[47]Ms Homatopoulos also exhibited an undated Charter assessment of a 2020 version of Instruction 3.10. I have disregarded this assessment, as Mr Thompson’s evidence was that it was the 2017 version of Instruction 3.10 that applied on 4 September 2019 and 1 February 2020: see [21]–[23] above.

The 2012 assessment is a single page, comprising a table that lists each of the human rights protected in ss 8 to 26 of the Charter, with a column to record whether the right is engaged, and another to provide analysis. It recorded that the protection from torture and cruel, inhuman or degrading treatment in s 10 was engaged, and provided the following analysis:

Taking urine samples from prisoners could be degrading, but such testing is a key strategy in protecting prisoners from drug-related harms and thus it is seen as strengthening their right to life (s 9) and CV’s policies provide staff with guidance and consistency.

The only other right considered to be engaged by Instruction 3.10 was the fair hearing right in s 24, for reasons that are not relevant here.

The 2012 assessment states that it was authorised by Rod Wise, Deputy Commissioner, Operations, and it appears to have been signed by Mr Wise on 10 December 2012. I infer that Mr Wise read and approved the 2012 assessment in December 2012, in the course of issuing an earlier version of Instruction 3.10 at around that time.[48] Mr Wise issued an updated version of Instruction 3.10 in September 2017, incorporating some administrative changes that did not prompt a fresh Charter assessment. It appears that Mr Wise relied on the 2012 assessment to inform his consideration of the human rights impacts of Instruction 3.10. There is no other evidence that he took human rights into account when he reissued Instruction 3.10 in September 2017.
[48]Ms Homatopoulos deposed that her general practice when preparing a Charter assessment for the Deputy Commissioner was ‘I do not finalise any of this work without the endorsement of the person who signs off on the final product’: Homatopoulos affidavit, [8].

In my view, the standard of proper consideration required of the Deputy Commissioner in deciding to issue Instruction 3.10 is at the more exacting end of the spectrum.[49] Instruction 3.10 affects every prisoner in every prison managed by Corrections, a large and diverse group of human beings. It is at the apex of the policy hierarchy that implements Corrections’ long-standing Alcohol and Drug Strategy, and has been in place in substantially the same form since at least 2012. It was issued by a Deputy Commissioner of Corrections, who had time to consider its human rights impacts, and opportunities to consult and obtain advice. General Managers such as Mr Thompson, who must implement Instruction 3.10 in their prisons, should be able to rely on the Deputy Commissioner having undertaken a thorough human rights assessment before issuing the instruction.
[49]See [52] above.

I am not satisfied that Mr Wise gave proper consideration to the human rights of prisoners who would be subjected to drug and alcohol testing by urinalysis in accordance with Instruction 3.10. While I accept that he relied on the 2012 assessment, it can only be described as cursory. It merely recognised, in general terms, that taking urine samples from prisoners could be ‘degrading’, and justified that impact by the countervailing consideration that testing is a key strategy in protecting prisoners from drug-related harms. There was no examination of the nature and extent of the ‘degrading’ impact of urine testing, and no evaluation of the effectiveness of the random testing regime. Nor was there any consideration of less restrictive means available to achieve the objectives of the Strategy, such as less intrusive testing methods or less frequent random testing.

Further, the assessment was limited to whether prisoners should be subjected to drug and alcohol testing, including random general testing, by taking urine samples. It did not engage with the human rights impacts of the instructions about how the testing is to be carried out. For example, Instruction 3.10 included directions that prisoners must be strip searched before providing a urine sample, and must produce the sample in the presence of two prison officers. It is obvious that these features of the testing process might intrude on a prisoner’s privacy and dignity. However, no attention was given in the 2012 assessment to these intrusions, or whether they are necessary to achieve effective random testing.

In this case, proper consideration of relevant human rights required a more thorough consideration of the human rights impacts of mandatory random general urine testing than appears in the 2012 assessment. The 2012 assessment compares poorly with the detailed consideration given to relevant human rights by the Victorian Institute of Forensic Mental Health, before the Smoke Free Policy was introduced at Thomas Embling Hospital in 2015.[50] This is not a case in which the brevity of the assessment is explained by lack of time, resources, seniority, or expertise.
[50]De Bruyn, [143]–[147].

I am less concerned that the 2012 assessment did not identify the s 13(a) right to privacy and the dignity right in s 22(1) as rights engaged by Instruction 3.10. A decision-maker need not identify the ‘correct’ rights in order to give proper consideration to the human rights impacts of a decision. In this case, it was sufficient that the 2012 assessment identified the s 10 protection against torture and cruel, inhuman and degrading treatment as a relevant human right. There is an overlap between the protection given by s 10 and the dignity right,[51] and there is also a relationship between s 10 and the right to privacy.[52] What was lacking was a genuine consideration of how the human rights of prisoners might be affected in practical terms by Instruction 3.10, and whether this was reasonable and demonstrably justifiable in terms of s 7(2).
[51]Taunoa v Attorney-General [2008] 1 NZLR 429, [79]–[80] (Elias CJ), [176]–[177] (Blanchard J); De Bruyn, [114]–[115], [171]–[172]; Certain Children (No 2), [242]–[258]. See also A Pound and K Evans, Annotated Victorian Charter of Rights, (2nd ed, 2019), 102.
[52]Pound and Evans, op cit, 102.

2015 assessment of Instruction 1.05

Ms Homatopoulos also exhibited to her affidavit Charter assessments for the 2012, 2013 and 2015 versions of Instruction 1.05, all of which she prepared.[53] She said that no Charter assessment was conducted for the 2016 revision of Instruction 1.05 because it did not involve any substantive change.
[53]Homatopoulos affidavit, [10], exhibits LH-4, LH-5, LH-6.

The 2015 assessment concluded that Instruction 1.05 was compatible with the Charter. It noted the engagement of a number of Charter rights, and provided analysis and comment, relevantly:

(a) Section 9 – Right to life:

Strip searching is designed to detect hidden contraband (particularly drugs, weapons), which has lethal potential. Strip searching of prisoners, visitors, and others is one means of reducing the risk of death to prisoners and other persons.
…

(b) Section 10 – Protection from torture and cruel, inhuman or degrading treatment:

The DCI refers to prisoner body and strip searches. Body (pat down) searches will normally be conducted on prisoners moving between areas within the prison. Strip searches will normally be conducted on prisoners leaving or returning to a prison, prior to or on completion of contact visits and at any other times deemed necessary by the General Manager, in order to maintain the good order or safety of the prison.
The purpose of the limitation is to ensure that prisoners have not concealed contraband on their person which might jeopardise their safe custody, the security of the prison or the welfare of other prisoners, staff and visitors.
…

(c) Section 13 – Privacy and reputation:

…
The Victorian Prison Drug Strategy – 2002 refers to differential management measures imposed for drug offences. This means that the level of intrusiveness of search procedures should be related to the probability of detecting drugs.
…

(d) Section 22 – Humane treatment when deprived of liberty:

A prisoner’s right to freedom from inhuman and degrading treatment may be engaged during the separation and strip searching procedures, however, the limitation is justified under the following legislation:
•Corrections Act 1986
•Corrections Regulations 2009

The [Deputy Commissioner’s] Instruction articulates the procedures for the range of searches, including strip searches and staff must follow these procedures. Strip searches must also be conducted in private places and with staff of the same sex as the prisoner or visitor. They must also be conducted in a manner which, as far as is possible, is sensitive to the dignity of the person being searched.
The procedures are prescribed and not arbitrary.

The 2015 assessment appears to have been authorised and signed by Deputy Commissioner Rod Wise on 5 May 2015. I accept that Mr Wise had regard to the 2015 assessment when he issued the relevant version of Instruction 1.05 in August 2016, although there is no direct evidence that he did so.

The 2015 assessment of Instruction 1.05 was more detailed than the 2012 assessment of Instruction 3.10, and identified both the s 13(a) right to privacy and the dignity right in s 22(1) as relevant rights. However, I cannot find that it properly considered the instruction that male prisoners should be strip searched before a random urine test.

I have no difficulty with Corrections’ approach of assessing organisation-wide policies and procedures for compatibility with human rights at a senior level, so that local managers with responsibility for implementing those policies and procedures can assume that proper consideration has been given to relevant rights. The approach permits an unhurried and thorough assessment of the human rights implications of a policy or procedure, with the opportunity to consult and obtain advice. As discussed, this has the consequence that the standard of proper consideration for such an assessment is at the more exacting end of the spectrum.[54] The 2015 assessment of Instruction 1.05 concerned the human rights of every prisoner in every public prison in Victoria, as well as visitors, prison staff, and contractors. In that context, proper consideration called for a genuine engagement with the ways in which their rights may be limited by the searches provided for in Instruction 1.05, and whether those limits were justifiable in accordance with s 7(2).
[54]See [52] and [64] above.

The assessment was impaired by an incorrect statement of the effect of Instruction 1.05.[55] In relation to the right to privacy, the assessment stated that ‘the level of intrusiveness of search procedures should be related to the probability of detecting drugs’. This statement was inaccurate, given that Instruction 1.05 provides that strip searches will normally be conducted on prisoners prior to any urinalysis test, including random tests. Based on the assessment, there is no sign the Deputy Commissioner seriously turned his mind to the human rights impact of a policy of mandatory strip searching of male prisoners before a random urine test, irrespective of the likelihood of detecting drugs.
[55]A human rights assessment based on wrong facts is not proper consideration: Certain Children (No 2), [493]–[501].

Further, the 2015 assessment simply did not engage with the question whether mandatory strip searching before a random urine test is a justifiable limitation of human rights. It rather begged that question, asserting that the limitation was justified under the Corrections Act and the Corrections Regulations. The evidence in this case did not demonstrate that to so, as discussed later in this judgment.[56] Even if it had, the requirement that a limit be ‘under law’ is only one aspect of justification under s 7(2). Identifying the legal basis for the limit did not obviate the need to consider the other matters relevant to justification, set out in s 7(2). Here, those matters included whether there were less restrictive means reasonably available to maintain the integrity of random urine testing. There is no sign that any alternative was considered, even though Instruction 1.05 itself provided for more targeted, less intrusive searching of female prisoners.[57] There was also no consideration of the purpose of the limitation, or the relationship between the limitation and its purpose.
[56]See [115]–[119] below.
[57]See [115]–[116] below.

Summary

In summary, Mr Thompson did not undertake any Charter assessment of the Urinalysis Procedure. He instead relied on the Deputy Commissioner to give proper consideration to relevant human rights in issuing Instruction 3.10, which Mr Thompson implemented at Barwon Prison through the Urinalysis Procedure. However, the Deputy Commissioner did not give proper consideration to relevant rights when he issued Instruction 3.10. Mr Thompson may also have relied on the Deputy Commissioner having given proper consideration to the human rights impact of the instruction, in Instruction 1.05, that prisoners are generally to be strip searched before a urinalysis test. The 2015 assessment of Instruction 1.05 did not engage with that issue.

As a result, I find that Mr Thompson authorised the Urinalysis Procedure — under which Dr Minogue was required to submit to random general urine tests on 4 September 2019 and 1 February 2020 — without having given proper consideration to relevant human rights, contrary to s 38(1) of the Charter.

Question 3: Were the directions incompatible with Dr Minogue’s human rights?

Section 38(1) of the Charter provides that it is unlawful for a public authority to act in a way that is incompatible with a human right. It was common ground that an allegation of incompatibility under s 38(1) can be considered in the following way:

(a) first, identify whether any human right is relevant to or engaged by the impugned decision or action of the public authority (the engagement question);

(b) second, determine whether the decision or action has limited that right (the limitation question); and

(c) third, consider whether the limit is under law, reasonable, and demonstrably justified having regard to the matters set out in s 7(2) of the Charter (the proportionality or justification question).[58]

[58]Baker v Director of Public Prosecutions (Vic) (2017) 270 A Crim R 318, [56]–[57]; Certain Children (No 2), [174]–[175]; Minogue v Dougherty [2017] VSC 724, [74].

In a judicial review proceeding such as this one, the Court’s jurisdiction is supervisory, not substitutionary. The Court is not engaged in merits review, although judicial review for compatibility with human rights is necessarily more intense than traditional grounds of judicial review. The task is to determine whether the impugned act or decision is compatible with relevant Charter rights, an objective assessment that involves both fact-finding and an evaluation of competing considerations.[59] The degree of intensity required, and the deference due to the judgment of the primary decision-maker, depend on the context and circumstances in which the decision was made. Relevant considerations include the decision-maker’s experience and expertise, the accuracy of the information on which the decision was based, and the quality of any human rights assessment that informed the decision.[60]
[59]Patrick’s Case, [314]–[315]; Certain Children (No 2), [211]–[216].
[60]Patrick’s Case, [316]–[317], [324]–[327]; Certain Children (No 2), [217]–[219].

The burden of establishing that a limit on a human right is justified, or proportionate, rests with the relevant public authority — in this case, Corrections.[61] The standard of justification is stringent; evidence required to prove that a limit on a human right is justified, having regard to the matters set out in s 7(2), should be ‘cogent and persuasive’.[62]
[61]Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, [147]–[148] (Re Major Crime Act); Patrick’s Case, [310]; Certain Children (No 2), [175].
[62]Re Major Crime Act, [147], citing R v Oakes [1986] 1 SCR 103, 42.

At trial, Dr Minogue submitted that the strip search directions given to him under s 29A of the Corrections Act were clearly incompatible with his right to privacy and right to humane treatment when deprived of liberty:[63]
[63]Transcript 22:13–20.

My being subject to the s 29A power which involves two prison officers looking at the one continuous stream of urine coming out of my penis and going into a jar and the mandatory regulation 87 strip searching and being required to bend over and spread the cheeks of my buttocks to expose my anus for visual inspection, these are self-evidently incompatible with the operation of the human rights at ss 13 and 22 …

(a) The Urinalysis Procedure is designed to eliminate the predictability of random general urinalysis within Barwon Prison. With 1.25% of the prison population subjected to random general testing each week, on average a prisoner could expect to be selected perhaps once a year.

(b) Prison officers are directed to ensure that under no circumstances are prisoners to receive advance notice of a requirement to be tested.

(c) A prisoner is required, subject to limited exceptions, to produce the urine sample in view of two prison officers.

(d) It is a prison offence to interfere with, contaminate, or substitute a sample.[100]

(e) Test results include whether a sample has been interfered with or adulterated.[101]

[100]Corrections Regulations, reg 65(1)(x).

[101]C Thompson affidavit, Exhibit CT-2 – Drugs in Victorian Prisons Report, March 2020, 8, 23.

I do not consider that Mr Thompson established a reasonable basis for his belief that a prisoner randomly selected for testing might be ‘hiding on his body or in his clothing any substitute urine or means of adulterating the sample’.[102] Given that the requirement to provide a urine sample for testing is random and infrequent, that it takes place without warning and under the supervision of prison officers, and that adulteration and interference is detectable and has disciplinary consequences, I do not understand why Mr Thompson considers it necessary to take the additional measure of strip searching every prisoner before every test.
[102]C Thompson affidavit, [11].

Further, there was evidence that directly contradicted Mr Thompson’s belief that the only effective way to ensure that urine samples are not altered is to strip search each prisoner before providing a urine sample. It is notable that the Search Requirements and Instruction 1.05 do not require a full strip search of female prisoners before a random urine test: female prisoners need only bend over at the waist and part the cheeks of their buttocks during a targeted strip search.

Ms Homatopoulos explained that, between 2003 and 2006, there was a pilot program at the Dame Phyllis Frost Centre (DPFC) to investigate whether strip search procedures could be adapted to be more sensitive to the needs of women, without compromising the good order and security of the prison. As a result of that trial, strip searches at DPFC are now targeted, use less intrusive methods, and require prior authorisation of an Operations Manager or Supervisor.[103] Ms Homatopoulos said that the trial had been undertaken in recognition of the fact that many female prisoners have been victims of physical and sexual assault, so that strip searching was likely to have a greater impact on female prisoners.[104] She did not explain why this approach was confined to female prisoners, when male prisoners may also have suffered significant trauma in their lives.[105]
[103]Homatopoulos affidavit, [15].
[104]Homatopoulos affidavit, [15], Exhibit LH-9, Local Operating Procedure on Strip Searching Female Prisoners, 27 March 2013, 1.
[105]See, for example, the discussion in Karen Schneider et al, ‘Psychological distress and experience of sexual and physical assault among Australian prisoners’ (2011) 21 Criminal Behaviour and Mental Health 333.

The limited evidence in this proceeding indicated that the more targeted, less intrusive approach to strip searching at DPFC has not compromised the integrity of random urine testing at that prison. Mr Thompson exhibited to his affidavit a copy of the Drugs in Victorian Prisons Report dated March 2020. The comparison between Barwon Prison and DPFC is informative. The figures in the table below are totals for the period July 2019 to March 2020.[106]
[106]C Thompson affidavit, Exhibit CT-2 – Drugs in Victorian Prisons Report, March 2020, 23, 43.

Barwon Prison Dame Phyllis Frost Centre

Targeted total effective

1,002

1,105

Targeted interfered

3

0

Targeted adulterated

5

1

Random total

464

575

Random interfered

0

0

Random adulterated

2

0

These figures do not give cause for concern that random urine tests are more likely to be interfered with or adulterated if prisoners are not subjected to a full strip search beforehand.

While I accept that Mr Thompson believes that mandatory strip searching is necessary to ensure the effectiveness of random urine testing for drugs and alcohol, his evidence did not demonstrate reasonable grounds for that belief. Other features of the testing procedure provide little, if any, opportunity for a prisoner to substitute or alter a random urine sample. A less intrusive, more targeted strip searching regime has successfully been introduced at DPFC.

It follows that 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.

Strip searches before contact visits

Corrections submitted that the strip searches of Dr Minogue before and after his visit with his lawyer on 18 February 2020 were in accordance with the Search Procedure and hence authorised by reg 87(2) of the Corrections Regulations. It relied on Mr Thompson’s evidence that he believes that this is necessary for the security and good order of the prison ‘because it ensures that prisoners do not have weapons on them, which could be used to harm a visitor if the visit is a contact visit, or an item of contraband that they may be attempting to get out of the prison’.[107] Mr Thompson said that, in his experience, ‘both of these outcomes occur if a policy of strip searching is not applied’.[108] He added that many prisoners in Barwon have been imprisoned for violent crimes, including murder, and so he could not allow any prisoner from Barwon to have physical contact with any member of the public without ensuring the visitor cannot be harmed by the prisoner. Mr Thompson considers that strip searching is essential to this.[109]
[107]C Thompson affidavit, [16].
[108]C Thompson affidavit, [16].
[109]C Thompson affidavit, [16].

Corrections also tendered an affidavit of Mark Thompson, who is an Operations Manager at Barwon Prison, reporting to the General Manager, Colin Thompson. It was Mark Thompson who spoke with Dr Minogue on 18 February 2020 about his objection to being strip searched before seeing his lawyer. He provided the following explanation for the Search Procedure in place at Barwon:[110]

Because it is a maximum security prison, it is considered to have the highest level of risk in terms of the potential for violence and the risk of prisoner escape, in the context of the Victorian prison system as a whole. Assaults by prisoners at Barwon are frequent. At Barwon, prisoners are required under its Local Operating Procedure to be strip searched prior to and following any contact visit (including with their lawyers). Based on my experience, this procedure is needed in order to ensure that prisoners do not assault their visitors or obtain contraband items from their visitors. Whilst prisoners assaulting visitors is infrequent I can recall 3 assaults in the visit centres over the past approximately 5 years (thankfully none of these involved a weapon because the strip searching procedures were in place). In contrast, we find contraband being brought in on a weekly basis during routine contact visits.

[110]S ECI 2020 00822 – Affidavit of Mark Thompson dated 13 July 2020, (M Thompson affidavit), [9].

The evidence satisfies me that there were reasonable grounds for Colin Thompson’s belief that it is necessary to strip search all prisoners at Barwon before and after any contact visit, whether personal or professional. It is significant that Barwon is a maximum security prison, where there is a much higher potential for violence than in the general community, or in lower security prisons. Assaults by prisoners on visitors do not occur often, but they do occur. As Mark Thompson pointed out, the risk of a visitor being harmed may be low, but the consequence of that risk eventuating is severe.[111] Much more frequently, contraband is brought in to the prison through contact visits.
[111]M Thompson affidavit, [13].

I put to one side Mr Thompson’s evidence that he believes it necessary for the security and good order of the prison to strip search Dr Minogue before any contact visit, because he is serving a sentence for murder and, while serving that sentence, murdered another prisoner.[112] It is clear that Mr Thompson authorised the Search Procedure without regard to Dr Minogue’s individual circumstances, and did not give a specific direction that he was strip searched on 18 February 2020. That strip search was conducted in accordance with the Search Procedure, and not because Dr Minogue was believed to pose any particular risk to the safety of his lawyer.
[112]C Thompson affidavit, [17].

I conclude that the strip searches of Dr Minogue on 18 February 2020 were authorised under reg 87(2) of the Corrections Regulations.

Question 5: Was proper consideration given to relevant human rights?

The principles concerning proper consideration of relevant human rights under s 38(1) of the Charter are discussed at [44]–[52] above.

The strip searches of Dr Minogue on 4 September 2019 and 1 February 2020 were the result of prison officers following an order given by Mr Thompson by means of the Urinalysis Procedure. For the reasons I have already given, proper consideration was not given to relevant human rights when the Urinalysis Procedure was approved.[113]
[113]See [44]–[78] above.

The strips searches of Dr Minogue on 18 February 2020 were carried out in accordance with the Search Procedure. Colin Thompson’s evidence was to the effect that, because he knew that the Strip Search Requirements and Instruction 1.05 were made following a process intended to involve proper consideration of their impact on prisoners’ human rights, he was careful to ensure that the Search Procedure was consistent with those policy documents.[114] Again, I understood this to mean that Mr Thompson relied on proper consideration having been given to human rights in the development of those documents, in particular Instruction 1.05. With one exception, he did not himself engage in the process of balancing the limits on prisoners’ rights with countervailing interests.
[114]C Thompson affidavit, [31].

The 2015 assessment engaged directly with the human rights implications of searching prisoners before and after visits, and I am satisfied that there was proper consideration of relevant rights in relation to this aspect of Instruction 1.05. The assessment acknowledged that strip searching engaged and limited several rights, including the right to privacy and the dignity right. It identified that strip searching was designed to detect hidden contraband, such as drugs or weapons, as a means of reducing risks to safety of prisoners and other people, which is necessary for the security and good order of prisons. The nature of the limitation, its purpose, and the relationship between the limitation and its purpose were considered and balanced. That was sufficient to meet the standard of proper consideration in the context, although the assessment would have been enhanced by a consideration of alternative, less intrusive search procedures.

The one matter on which Mr Thompson undertook his own consideration of human rights was the requirement in the Search Procedure that prisoners be strip searched before and after any form of contact visit, including with lawyers. Mr Thompson said that he considered this ‘more rigorous approach’ in Barwon’s local policy to draw ‘the appropriate balance between protecting human rights and security within the specific context of Barwon’.[115] This was because:[116]

… unlike lower-security prisons, Barwon houses some of Victoria’s most violent, unpredictable and non-compliant prisoners, which means that additional precautions are necessary to ensure the safety of visitors, prisoners and staff.

Mr Thompson was aware that strip searching must be performed with care in order to ensure that it does not disproportionately limit a prisoner’s rights to privacy and to humane treatment while deprived of liberty, and was satisfied that the Search Procedure achieved that balance.[117]

[115]C Thompson affidavit, [15].

[116]C Thompson affidavit, [15].

[117]C Thompson affidavit, [31].

I find that this amounted to proper consideration of the human rights impact of extending the strip search requirement to all contact visits at Barwon, including visits by lawyers. I take into account that Mr Thompson was obliged to implement Instruction 1.05, which prescribes in detail the strip search procedure to be followed at male prisons, and so there was little if any scope for him to consider the availability of less intrusive measures.

In summary, I find that Mr Thompson gave proper consideration to human rights in relation to the order given in the Search Procedure to strip search prisoners before and after all contact visits.

Question 6: Were the strip searches incompatible with Dr Minogue’s human rights?

The principles relevant to compatibility with human rights under s 38(1) of the Charter are discussed at [79]–[81] above.

Dr Minogue submitted that the strip searches he was subjected to on 4 September 2019, 1 February 2020, and 18 February 2020 were self-evidently incompatible with his human rights in ss 13(a) and 22(1) of the Charter. He emphasised that his complaints were not about policy development and training, but about practices on the ground in the prison system. He did not mince words in describing his experience of being strip searched:[118]

I am forced to bend over and spread the cheeks of my buttock so Prison Officers can inspect my arsehole, and when I am forced to lift my cock and balls so the Officers can see between my legs, and then piss in a jar with the Officers watching the stream of piss coming out of my cock; and then [I am not] allowed to re-dress in private as the law requires.

He said in oral submissions that this was not routine for him, and that he was ‘sick to death’ of the indignity of being strip searched.[119]

[118]Written submissions of Dr Minogue dated 24 August 2020, [10].

[119]Transcript 24:1–2.

Corrections accepted that strip searching engaged both the right to privacy in s 13(a) and the s 22(1) dignity right. However, it argued that the strip searches of Dr Minogue did not limit his right to privacy because the interference with his privacy was both lawful and not arbitrary. It further argued that the strip searches did not limit Dr Minogue’s right to be treated humanely in detention, because they were carried out for a legitimate purpose.

This submission had an air of unreality to it. I am in no doubt that being strip searched is inherently demeaning, despite being a routine part of prison life. While strip searching may be less demeaning if it is done for an identified reason and in accordance with standard procedure, it still limits the right of a prisoner, in s 22(1) of the Charter, to be treated with humanity and respect for the inherent dignity of the human person. The strip searches of Dr Minogue could only be compatible with that right if they were ‘under law’ and demonstrably justified in accordance with s 7(2).

The right to privacy in s 13(a) is only limited by an interference with privacy that is unlawful or arbitrary, in the sense of proportionate to a legitimate aim.[120] These are the same questions that arise for determination in relation to justification under s 7(2).
[120]See [82(a)], [83] above.

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).

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]
[121]Castles, [93]; Certain Children (No 2), [243]–[244].

(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.

While I accept without hesitation the importance of the purpose for which the strip searches were conducted, the evidence did not demonstrate that they were necessary or even conducive to achieving that purpose. In light of evidence that a less intrusive search regime is in place at another maximum security prison, I could not be satisfied that the indignity of a routine strip search before a random urine test is justified or proportionate.

It follows that the strip searches of Dr Minogue on 4 September 2019 and 1 February 2020 were incompatible with his right to privacy in s 13(a) and his right in s 22(1) to be treated humanely and with dignity while detained, contrary to s 38(1) of the Charter.

A different set of considerations bears on whether the strip searches on 18 February 2020, before and after Dr Minogue saw his lawyer, were justified. Most significantly, those searches were authorised under reg 87(2), because there were reasonable grounds for Mr Thompson’s belief that the strip searches were necessary for the security or good order of the prison. In addition, Mr Thompson gave proper consideration to relevant human rights in adopting the Search Procedure. In those circumstances, I give weight to Mr Thompson’s judgment that strip searching is a justified limitation of human rights. I also take into account that there is a demonstrated relationship between the limitation and its purpose of ensuring the safety of visitors, prisoners and staff. I find that the strip searches of Dr Minogue on 18 February 2020 were justified limitations of his rights to privacy and humane treatment in detention, and were compatible with those rights.

Disposition

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.

The relief sought by Dr Minogue in these proceeding includes declarations, and a series of orders in the nature of certiorari and mandamus. My preliminary view is that declarations should be made in proceedings S ECI 2019 04631 and S ECI 2020 00798, and that injunctions may also be appropriate in proceeding S ECI 2019 04631. As agreed at the hearing on 30 October 2020, the proceeding will be listed for a further hearing on the question of the orders to be made as a result of my findings.

No issue was determined in Dr Minogue’s favour in proceeding S ECI 2020 00822, and so that proceeding must be dismissed.

I will hear the parties on the question of the costs of all three proceedings.

Barwon Prison	Dame Phyllis Frost Centre
Targeted total effective	1,002	1,105
Targeted interfered	3	0
Targeted adulterated	5	1
Random total	464	575
Random interfered	0	0
Random adulterated	2	0

[2021] VSC 56

16 February 2021