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Thompson v Minogue

Thompson v Minogue

Case [2021] VSCA 358 17 December 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0051

COLIN THOMPSON (in his capacity as Governor of Barwon Prison)	Applicant
v
CRAIG MINOGUE	Respondent

S EAPCI 2021 0052

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

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JUDGES:	KYROU, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 and 22 October 2021
DATE OF JUDGMENT:	17 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 358
JUDGMENT APPEALED FROM:	[2021] VSC 56; [2021] VSC 209 (Richards J)

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HUMAN RIGHTS – Scope of privacy right in s 13(a) and dignity right in s 22(1) of Charter of Human Rights and Responsibilities Act 2006 – Meaning of ‘unlawfully or arbitrarily interfered with’ in s 13(a) – Relationship between internal limitations in s 13(a) and justification requirement in s 7(2) – Onus of proof regarding internal limitations in s 13(a) – Scope of ‘proper consideration’ requirement in s 38(1) and relationship with justification requirement in s 7(2) – Scope of and onus of proof for justification requirement in s 7(2) – Court’s role in determining whether conduct of public authority compatible with human rights as required by s 38(1) – Whether applicants gave proper consideration to respondent’s privacy and dignity rights in directing that he undergo urine tests and strip searches – Whether urine tests and strip searches compatible with respondent’s human rights – Whether judge obliged to give weight and latitude to views of public authority regarding justification requirement in s 7(2) and compatibility of impugned conduct with human rights – Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 13(a), 22(1), 38(1) – HJ v Independent Broad-based Anti‑corruption Commission [2021] VSCA 200 applied – Appeal allowed.

ADMINISTRATIVE LAW – Judicial review – Whether judge erred in finding that strip searches respondent required to undergo not authorised by reg 87(1)(d) of Corrections Regulations 2019 – Whether judge reversed onus of proof – Appeal allowed.

WORDS AND PHRASES – ‘Unlawfully or arbitrarily interfered with’ – Charter of Human Rights and Responsibilities Act 2006 s 13(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr L Brown, Crown Counsel for Victoria, with Ms S M C Fitzgerald and Mr C Fitzgerald	Victorian Government Solicitor
For the Respondent	Mr C J Horan QC with Mr S Thomas	Fitzroy Legal Service
For the friend of the Court, Victorian Aboriginal Legal Service	Mr T B Goodwin	Victorian Aboriginal Legal Service

TABLE OF CONTENTS

Introduction and summary

1

Overview of Victoria’s prison system

4

Facts and procedural history

6

Relevant provisions of Corrections Act and Corrections Regulations

9

Relevant provisions of the Charter and principles relating to them

12

General observations on the Charter

14

Scope of the privacy right

16

Scope of the dignity right

19

Justification requirement in s 7(2) of the Charter

21

Section 38(1) of the Charter

24

Judge’s orders dated 16 April 2021

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 Thompson v Minogue

Details

AGLC: Thompson v Minogue [2021] VSCA 358
Case: [2021] VSCA 358
Decision Date: 17 December 2021

CaseChat Overview and Summary

In the case of Thompson v Minogue, the applicants, who were officers of the Corrections Department, appealed against a decision of a single judge of the Supreme Court who found that the respondents' human rights had been infringed. The applicants sought to justify their conduct under the Charter of Human Rights and Responsibilities Act 2006. The respondents, who were inmates in a correctional centre, alleged that their privacy and dignity rights were violated when they were directed to undergo urine tests and strip searches. The applicants argued that these actions were necessary for security and administrative reasons.

The primary legal issues before the court were the interpretation and application of the Charter, particularly the privacy and dignity rights, the justification requirement, and the role of the court in reviewing the actions of public authorities. The court had to determine whether the applicants had properly considered the respondents' human rights in directing the urine tests and strip searches, and whether these actions were compatible with the respondents' human rights under the Charter. Additionally, the court needed to assess whether the judge had correctly applied the legal principles in reviewing the applicants' conduct.

The Court of Appeal found that the judge had erred in concluding that the strip searches were not authorised by regulation. The Court held that the judge had reversed the onus of proof by requiring the applicants to justify the necessity of the strip searches. Furthermore, the Court held that the judge had not properly considered the relationship between the internal limitations in the privacy right and the justification requirement. The Court of Appeal found that the judge had failed to give proper consideration to the applicants' arguments regarding the compatibility of the urine tests and strip searches with the respondents' human rights. The Court also found that the judge had not correctly applied the principles of judicial review in assessing the applicants' conduct.

The appeal was allowed, and the decision of the Supreme Court was set aside. The matter was remitted to the Supreme Court for reconsideration in light of the Court of Appeal's findings.

Orders