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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Minogue v Thompson

Details

AGLC: Minogue v Thompson [2021] VSC 56
Case: [2021] VSC 56
Decision Date: 16 February 2021

CaseChat Overview and Summary

The case of Minogue v Thompson involved the plaintiff challenging the legality of certain directions and orders made by the defendant, who was the Governor of a prison in Victoria. The plaintiff, while incarcerated, was required to submit to random urine tests and undergo strip searches. The dispute reached the Victorian Supreme Court, which was tasked with determining whether these actions were authorised under the Corrections Act 1986 (Vic) and whether the relevant powers were exercised on an individual basis. Additionally, the court needed to decide if the singular form of words in the Act should be interpreted to include the plural, as per the Interpretation of Legislation Act 1984 (Vic), and whether the human rights of the plaintiff were properly considered in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The legal issues the court had to resolve involved the interpretation of the Corrections Act 1986 (Vic) and the Corrections Regulations 2019 (Vic), focusing on whether the powers to direct random urine tests and strip searches were authorised and if they were exercised on a case-by-case basis. Another key issue was whether the singular form of certain powers in the Act should be interpreted to include the plural, and whether the Governor could rely on the Deputy Commissioner's consideration of human rights. Furthermore, the court had to assess whether the decisions made were compatible with the plaintiff's rights to privacy and humane treatment as outlined in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court examined if the rights were limited under law and if such limitations were demonstrably justified.

The Supreme Court found that the Governor's directions for the plaintiff to submit to random urine tests and the orders for strip searches were indeed authorised under the Corrections Act 1986 (Vic). The court held that the singular form of certain powers in the Act included the plural, as no contrary intention was apparent. The court also ruled that the Governor could rely on the Deputy Commissioner's consideration of human rights. However, the court determined that the decisions made were not compatible with the plaintiff's rights to privacy and humane treatment, and thus were invalid. The court concluded that the limitations on the plaintiff's rights were not 'under law' and not demonstrably justified.

The final orders of the court were that the directions and orders made by the Governor were quashed. The court provided relief to the plaintiff by declaring that the Governor was not authorised to make such directions and orders without proper consideration of the plaintiff's human rights. The court also made a declaration that the Governor was not entitled to rely on the Deputy Commissioner's consideration of human rights when making decisions affecting the plaintiff.

Orders