Thompson v Minogue
[2021] VSCA 358
•17 December 2021
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
31
Grounds of appeal
33
Structure of the balance of the judgment
35
PART A: RANDOM URINE TESTS
36
Policy documents relevant to random urine tests
36
Evidence at trial relating to random urine tests
43
Ground 1(1): Procedural limb of s 38(1) of the Charter
48
Judge’s reasons relevant to ground 1(1)
49
Parties’ submissions on ground 1(1)
50
Decision on ground 1(1)
53
Grounds 1(2) and 2: Mr Thompson’s evidence
54
Judge’s reasons relevant to grounds 1(2) and 2
55
Parties’ and VALS’ submissions on grounds 1(2) and 2
58
Decision on grounds 1(2) and 2
63
Ground 3: Privacy right
69
Judge’s reasons relevant to ground 3
70
Parties’ and VALS’ submissions on ground 3
70
Decision on ground 3
75
Ground 4: Dignity right
77
Judge’s reasons relevant to ground 4
78
Parties’ and VALS’ submissions on ground 4
78
Decision on ground 4
81
Ground 5: Section 7(2) and substantive limb of s 38(1) of the Charter
82
Judge’s reasons relevant to ground 5
83
Parties’ submissions on ground 5
85
Decision on ground 5
88
PART B: STRIP SEARCHES
94
Policy documents relevant to strip searches
94
Evidence at trial relating to strip searches
101
Ground 1(1): Procedural limb of s 38(1) of the Charter
105
Grounds 1(2) and 2: Mr Thompson’s evidence
105
Ground 3: Privacy right
107
Ground 4: Dignity right
109
Ground 6: Regulation 87(1)(d) of the Corrections Regulations
110
Judge’s reasons relevant to ground 6
110
Parties’ submissions and decision on ground 6
113
Ground 5: Section 7(2) and substantive limb of s 38(1) of the Charter
115
Judge’s reasons relevant to ground 5
116
Parties’ submissions and decision on ground 5
117
PART C: CONCLUSION
124
PART D: APPLICATION TO RE-OPEN HEARING
125
KYROU JA
McLEISH JA
NIALL JA:
Introduction and summary
The respondent, Dr Minogue, has been serving a term of life imprisonment since he was sentenced in 1988 for the offence of murder. He is currently serving his sentence in Barwon Prison, a maximum security prison that accommodates prisoners serving lengthy sentences, including prisoners with complex needs or who exhibit difficult behaviour.
On 4 September 2019, Dr Minogue was directed by prison officers to undergo a random drug test. This involved providing a urine sample, after being strip searched. He was informed by Colin Thompson, the general manager/Governor of Barwon Prison, that the request for a random drug test was made pursuant to a policy under which 5 per cent of the total prison population is required to submit to such a test each month, irrespective of placement or history of use.[1] Mr Thompson explained that the strip search was a standard security measure.
[1]The policy is ‘Instruction 3.10’ which is summarised at [115]–[120] below. As discussed at [121] below, effect was given to Instruction 3.10 at Barwon Prison by the ‘Urinalysis Procedure’.
Dr Minogue was directed to undergo a random drug test again on 1 February 2020. He was informed that Tracy Tosh, an acting operations manager of Barwon Prison, had decided that if he did not provide a urine sample there would be disciplinary consequences. Dr Minogue submitted to the strip search and produced a urine sample under protest.
On 18 February 2020, Dr Minogue was directed to undergo a strip search before and after a contact visit from his lawyer. He was required to do so pursuant to a policy that all prisoners be strip searched before and after a contact visit with any external visitor.[2] Dr Minogue submitted to the strip searches under protest.
[2]The policy is contained in both the ‘Strip Search Requirement’, which is summarised at [282]–[284] below, and ‘Instruction 1.05’, which is summarised at [285]–[289] below. As discussed at [290] below, effect was given to the Strip Search Requirement and Instruction 1.05 at Barwon Prison by the ‘Search Procedure’.
Dr Minogue commenced the following judicial review proceedings:
(a)Proceeding No 4631 of 2019 was commenced in October 2019 against Mr Thompson challenging the lawfulness of the direction that he submit to the strip search and random drug test on 4 September 2019 (‘2019 proceeding’).
(b)Proceeding No 798 of 2020 was commenced in February 2020 against Rebecca Falkingham, the Secretary of the Department of Justice and Community Safety (‘DJCS’) and Ms Tosh challenging the lawfulness of the direction that he submit to the strip search and random drug test on 1 February 2020 (‘2020 proceeding’).
(c)Proceeding No 822 of 2020 was commenced in February 2020 against Ms Falkingham and Mark Thompson,[3] an operations manager of Barwon Prison, challenging the lawfulness of the direction that he submit to the strip searches on 18 February 2020.
[3]In these reasons, in order to avoid confusion between Colin Thompson and Mark Thompson, we will refer to the former as ‘Mr Thompson’ and to the latter by his full name.
The three proceedings were heard together on 30 October 2020. Dr Minogue represented himself. He contended that the drug tests and strip searches were not authorised by the Corrections Act 1986 or the Corrections Regulations 2019 and were also unlawful under the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’).
On 16 February 2021, the judge determined the issues raised in the three proceedings 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.[4]
[4]Minogue v Thompson [2021] VSC 56, [7] (‘Reasons’).
The judge’s reasons for the above conclusions are discussed in detail below in the context of the grounds of appeal to which they relate.[5] The legislative provisions referred to in the above extract from the judge’s reasons are also set out below.
[5]In these reasons, references to grounds of appeal are to proposed grounds of appeal.
At a further hearing on 16 April 2021, the judge heard submissions from the parties in relation to the orders to be made to give effect to her findings. On that day, the judge made orders which included declarations and injunctions.[6] On 29 April 2021, the judge published her reasons for making those orders.[7] As those reasons are not the subject of any ground of appeal, no further reference will be made to them.
[6]The orders are set out at [102]–[103] below.
[7]Minogue v Thompson [No 2] [2021] VSC 209.
Mr Thompson has filed application for leave to appeal No 51 of 2021 in which he seeks to impugn the judge’s findings and orders in relation to the strip search and random drug test conducted on 4 September 2019. Ms Falkingham and Ms Tosh have filed application for leave to appeal No 52 of 2021 in which they seek to impugn the judge’s findings and orders in relation to the strip search and random drug test conducted on 1 February 2020. Mr Thompson, Ms Falkingham and Ms Tosh (collectively, ‘the applicants’) have relied upon identical grounds of appeal and written cases in relation to applications 51 and 52 (collectively, ‘the applications for leave to appeal’).[8]
[8]The grounds of appeal are set out at [104] below.
No party to proceeding No 822 of 2020 has filed an application for leave to appeal against the judge’s findings and orders in that proceeding. Accordingly, we will not make any further reference to those findings and orders.
Prior to the hearing of the applications for leave to appeal, the Victorian Aboriginal Legal Service (‘VALS’) sought leave to appear as a friend of the Court to assist the Court by making written and oral submissions. That application was not opposed. As we were satisfied that the preconditions for the granting of leave were met,[9] we made an order granting leave.
[9]See Priest v West (2011) 35 VR 225, 232–4 [29]–[35] and the authorities discussed in that case.
For the reasons set out below, the applications for leave to appeal will be granted and the appeals allowed. By way of overview, we have concluded that the judge erred in making findings (2), (3), (4) and (5) set out at [7] above, but did not err in making finding (6).[10] The result is that relief was properly granted in respect of the strip searches, but not in respect of the random urine tests.
[10]No party sought to impugn finding (1) or the final sentence of finding (4) at [7] above.
Overview of Victoria’s prison system
Under the Corrections Act, the Secretary of DJCS (‘Secretary’) has legal custody of Victorian prisoners and responsibility for monitoring performance in the provision of all Victorian correctional services to achieve the safe custody and welfare of prisoners.[11] Some of the Secretary’s powers have been delegated to other officers. Ms Falkingham was the Secretary during the period relevant to these proceedings.
[11]Corrections Act ss 6A, 7.
Corrections Victoria is a business unit of DJCS. It has operational and policy responsibilities for the management of Victorian prisons. Its senior officers include the Commissioner for Corrections Victoria[12] and the Deputy Commissioner, Operations (‘Deputy Commissioner’). The Deputy Commissioner issues policies relating to the management of prisons. During the period relevant to these proceedings, Rod Wise issued such policies in his capacity as the Deputy Commissioner.
[12]The Commissioner has responsibility under s 8A(2)(a) of the Corrections Act for assessing performance in the provision of all Victorian correctional services to achieve the safe custody and welfare of prisoners and offenders.
The officer who has day-to-day responsibility for an individual prison is the general manager of the prison. The Corrections Act describes that person as ‘Governor’.[13] Accordingly, we will refer to ‘Governor’ and ‘general manager’ interchangeably. Since 26 May 2019, Mr Thompson has been the general manager/Governor of Barwon Prison. Since that time, other senior officers have been appointed acting general manager/Governor for periods when Mr Thompson was on leave.
[13]See definition of ‘Governor’ in s 3(1) of the Corrections Act.
Senior officers of Barwon Prison include operations managers. At times relevant to these proceedings, Mark Thompson was an operations manager and Ms Tosh was an acting operations manager. Mark Thompson was acting general manager/Governor of Barwon Prison on some occasions.
Lisa Homatopoulos is the manager of the operations directorate of Corrections Victoria. Her responsibilities include reviewing, developing and amending operational policies, including for the purpose of ensuring compliance with the Charter.
Corrections Victoria has a formal written strategy for addressing drug use in prisons. That strategy is implemented through a hierarchy of policies, comprising:
(a)Commissioner’s Requirements, which set minimum standards to ensure consistency in the exercise of powers within Victorian prisons;
(b)Deputy Commissioner’s Instructions, which provide greater detail with respect to the exercise of particular delegated powers; and
(c)Local Operating Procedures, which are issued by the Governor of each prison to give operational detail to the Commissioner’s Requirements and Deputy Commissioner’s Instructions, for the purposes of the relevant prison.
The Commissioner’s Requirements, Deputy Commissioner’s Instructions and Local Operating Procedures that are relevant to the applications for leave to appeal, as well as the formal strategy, are discussed in detail below.
Facts and procedural history
Random drug testing was introduced in Victorian prisons in 1991. Since that time, Dr Minogue has been tested around 70 times, including targeted and ‘governors allocation’ tests. He has never tested positive for alcohol or illicit drugs.
On 4 September 2019, Dr Minogue was directed by prison officers to submit to a random urine test and to a strip search before the test. Prior to the strip search, he was confined in a small holding cell for over an hour, the four walls of which he could easily touch with both arms outstretched. He was then moved to a different room, where both the strip search and collection of the urine sample took place. The urine test and strip search were conducted in accordance with the standard procedure applicable at Barwon Prison (see below).[14] The urine test returned a negative result.
[14]Contrary to the standard procedure, Dr Minogue was not able to dress in private after the strip search. However, that is not presently relevant.
On 7 September 2019, Dr Minogue wrote to Mr Thompson seeking a statement of reasons for the decision that he be directed to submit to the urine test. In particular, Dr Minogue asked why it was considered necessary that he submit to the urinalysis process and whether Mr Thompson had considered his personal circumstances and any relevant human rights.
By letter dated 18 September 2019, Mr Thompson responded to Dr Minogue relevantly as follows:
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.
On 1 February 2020, Dr Minogue was again directed by prison officers to submit to a random urine test and to a strip search before the test. He initially refused to submit to the strip search or urine test. He handed to a prison officer responsible for collecting the urine sample a document which detailed his reasons for not wanting to submit to a random urine test or strip search and why he believed that the direction was not authorised by law. The document stated that it was unlawful for him to be directed to submit to a random urinalysis and strip search on the basis of a prison policy requirement without an actual decision being made. It said that he would submit to a urinalysis and associated strip search if directed by the Governor of the prison.
After Dr Minogue was moved to a holding area, a supervisor gave him a cup of water and advised him that, if he did not provide a sample of urine, it would be recorded as a refusal and that disciplinary processes would commence. The supervisor said that possible outcomes of those processes included ineligibility for contact visits, being given an Identified Drug User Status, a monetary fine and punishments under the criminal law. He informed Dr Minogue that he would be held in isolation until the three hour time limit for providing a urine sample had expired. The supervisor also stated that Ms Tosh had decided that a failure to submit to the urine test and strip search would be recorded as a refusal, but that the direction that he submit to the urine test was based upon the policy of random general testing rather than upon a specific decision by Ms Tosh.
About 30 minutes later, Dr Minogue advised the prison officer that he would submit to the strip search and provide a urine sample, but under protest. The urine test returned a negative result. In an affidavit filed in the 2020 proceeding, Dr Minogue explained that he submitted to the strip search and urine test because the consequences of not providing a urine sample ‘are very serious in relation to the quality of [his] life, such as it is, in prison’.
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 contact visit with any external visitor. He queried the lawfulness of this policy and refused to be strip searched. The then acting general manager, Mark Thompson, spoke with him 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, during which they were separated by glass.
On 18 February 2020, Dr Minogue received another visit from his lawyer. He was again directed to undergo a strip search before and after a contact visit from his lawyer. He submitted to the strip searches under protest.
As we have already stated, Dr Minogue commenced three proceedings challenging the lawfulness of the direction that he submit to the urine test and strip searches on 4 September 2019 and 1 February 2020 and the strip searches on 18 February 2020.[15]
[15]Dr Minogue also challenged the direction that he submit to a strip search on 4 February 2020 but that challenge is not presently relevant.
In the 2019 proceeding and 2020 proceeding, Dr Minogue sought orders which included the following:
(a)declarations that the directions that he submit to the urine tests and strip searches on 4 September 2019 and 1 February 2020 were invalid and unlawfully limited his human rights protected by the Charter;
(b)orders in the nature of certiorari to quash the decisions to make those directions; and
(c)orders in the nature of mandamus to compel the defendants to delete all records relating to the urine tests and strip searches, amend relevant prison policy documents, and desist from making decisions that he be subjected to random general urinalysis for ‘blanket-like policy reasons’ irrespective of any consideration of his personal circumstances and relevant human rights.
As appears from [7] and [9] above and [102]–[103] below, Dr Minogue obtained some of the relief that he sought.
Relevant provisions of Corrections Act and Corrections Regulations
Section 1(a) of the Corrections Act provides that one of the purposes of the Act is ‘to provide for the establishment management and security of prisons and the welfare of prisoners’.
Section 21(1) of the Corrections Act provides that the Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners. Sub-sections 20(1) and (2) provide that an officer in charge of a prison must take all reasonable steps for the security of the prison and for the safe custody and welfare of the prisoners. The Governor of a prison is the officer in charge of the prison when he or she is present at the prison. When the Governor is not present at the prison, the most senior officer who is present is in charge of the prison.[16]
[16]Corrections Act s 26.
Section 29A of the Corrections Act allows prisoners to be tested for drug or alcohol use. It relevantly provides as follows:
29APrisoners may be tested for drug or alcohol use
(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
…
(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.
Section 45(1) of the Corrections Act relevantly provides as follows:
45Search
(1)The Governor of a prison may for the security or good order of the prison or the prisoners at any time order a prison officer to—
…
(b)search and examine any person in the prison other than a judge of the Supreme Court or County Court, or a magistrate; or
…
(e)conduct any search under paragraph (a), (b), (c) or (d) at random.
Division 1 of pt 8 of the Corrections Regulations (regs 85–88) deals with searches of prisoners. Regulation 85 specifies that the searches that can be conducted under s 45 of the Corrections Act are ‘a garment search’, ‘a pat-down search’, ‘a scanning search’ and ‘a strip search’. Regulation 5 defines ‘strip search’ as follows:
strip search means a search of a person that requires—
(a)the person to remove any or all of the person’s clothing; and
(b)an examination of—
(i)the person’s body that does not involve the touching of the person’s body; and
(ii)the person’s clothing;
Regulations 86–88 of the Corrections Regulations relevantly deal with strip searches in the following terms:
86Strip searches of prisoners—general requirements
(1)A strip search—
(a) must be conducted by at least two prison officers; and
(b)must not be conducted by more prison officers than is reasonably necessary to ensure the safety of the officers and the prisoner.
(2)Prison officers conducting a strip search of a prisoner must ensure that—
(a)the strip search is conducted as expeditiously as possible to minimise the impact on the prisoner’s dignity and self-respect; and
(b) any unnecessary force is avoided; and
(c)the strip search is conducted in a private place or an area that—
(i)provides reasonable privacy for the prisoner being searched; and
(ii)is only in the presence or sight of a person who is necessary to ensure the safety of prison officers conducting the strip search and the prisoner being searched; and
(d)subject to section 23(2) of the [Corrections] Act,[17] the strip search does not involve the touching of the prisoner’s body; and
[17]Section 23(2) permits a prison officer where necessary to use reasonable force to compel a prisoner to obey an order.
(e)the prisoner is allowed to dress in private immediately after the strip search is finished; and
…
(g)subject to subregulations (3) and (4), the prisoner is searched by prison officers—
(i)if the prisoner identifies as being of a particular gender, of that gender; or
(ii)if the prisoner requests that the prison officers be of a different gender, of that different gender.
…
87When a strip search of a prisoner may be conducted
(1)For the purposes of section 45(1)(b) of the [Corrections] Act, the Governor may order a prison officer to conduct a strip search of any prisoner in the following circumstances if the Governor believes on reasonable grounds that the strip search is necessary for the security or good order of the prison—
(a) when a prisoner enters or leaves a prison;
(b)prior to or on completion of a contact visiting programme or a residential visiting programme;
(c)when a prisoner is transferred to or from an observation cell or a management unit;
(d) before urinalysis testing.
…
88Random searches
For the purposes of section 45(1)(e) of the [Corrections] Act, a search conducted at random under that section does not include a strip search.
Relevant provisions of the Charter and principles relating to them
Part 2 (ss 7–27) of the Charter sets out the human rights that are protected by the Charter.
Sections 13(a) and 22(1) of the Charter set out a right of an individual not to have his or her privacy unlawfully or arbitrarily interfered with (‘privacy right’) and a right of an individual whose liberty is deprived to be treated with humanity and with respect for the inherent dignity of the human person (‘dignity right’). Sections 13(a) and 22(1) provide as follows:
13Privacy and reputation
A person has the right—
(a)not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; …
…
22Humane treatment when deprived of liberty
(1)All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
Section 32(1) of the Charter deals with the interpretation of laws in the following terms:
32Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3)This section does not affect the validity of—
(a)an Act or provision of an Act that is incompatible with a human right; or
(b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.
Section 7 of the Charter sets out the circumstances in which the human rights protected by the Charter may be limited. It relevantly states as follows:
7Human rights—what they are and when they may be limited
…
(2)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.
(3)Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
Section 38 of the Charter regulates the conduct of public authorities. It relevantly provides as follows:
38Conduct of public authorities
(1)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.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.
General observations on the Charter
The formulation of the human rights in pt 2 of the Charter is derived primarily from the International Covenant on Civil and Political Rights 1966 (‘ICCPR’). Some of the human rights are expressed with internal limitations whereas other rights do not contain such limitations. The privacy right in s 13(a) falls within the former category because only interferences with privacy that are unlawful or arbitrary are protected, whereas the dignity right in s 22(1) falls within the latter category.
Unlike the ICCPR, the Charter contains the justification requirement in s 7(2) in addition to the internal limitations that apply to some human rights. The justification requirement in s 7(2) gives rise to difficult issues about the relationship between that requirement and the internal limitations.
The difficult issues referred to at [45] above are discussed below. At this juncture it is worth observing that, like all other Victorian statutes, the Charter must be construed having regard to its text, context and purpose. Under s 32(2), reference may also be made to international human rights jurisprudence. The context within which each provision conferring a human right must be construed includes s 7(2). However, the existence of s 7(2) does not distort the process of statutory construction by mandating that provisions conferring a human right — with or without internal limitations — be given either an overly narrow or an overly generous interpretation. Each provision must be given the meaning that its text, context and purpose — assisted in appropriate cases by international jurisprudence — require.
The onus of establishing that a human right has been limited is on the person alleging the limitation. The evidence that will be required to discharge the onus will depend upon a number of factors, including the nature and scope of the human right that is said to be limited and the nature and availability of information that may inform that question. In the case of a human right with internal limitations which are informed by matters that are solely in the knowledge of a public authority, a person alleging that his or her human right has been limited may be able to discharge the onus by pointing to objective circumstances which, in the absence of information from the public authority, are capable of giving rise to an inference of limitation.
As discussed at [74] below, once it is established that a human right has been limited, the onus rests upon the relevant public authority to establish that the limitation is demonstrably justified under s 7(2) of the Charter. If so, it will be ‘compatible’ with the human right.[18]
[18]Momcilovic v The Queen (2011) 245 CLR 1, 247–8 [678].
Scope of the privacy right
An ‘unlawful’ interference with a person’s privacy for the purposes of s 13(a) of the Charter is one which infringes an applicable law.[19]
[19]HJ v Independent Broad-based Anti-corruption Commission [2021] VSCA 200, [152] (‘HJ’).
The adjective ‘arbitrary’ is wider than the adjective ‘unlawful’ in that an interference with a person’s privacy may be arbitrary even if it is not unlawful.[20] However, the precise scope of the term ‘arbitrary’ for the purposes of s 13(a) of the Charter has not been settled.
[20]HJ [2021] VSCA 200, [152], citing Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, 66–7 [198]–[199] (‘Taha’).
In WBM v Chief Commissioner of Police, Kaye J applied the ordinary meaning of ‘arbitrary’, namely, ‘capricious’.[21] The Court of Appeal dismissed an appeal from Kaye J’s substantive decision to refuse the declaratory relief sought by the plaintiff in that case. Although Warren CJ (with whom Hansen JA agreed) held that the Charter did not apply to the plaintiff’s circumstances, she expressed the view that the term ‘arbitrary’ in s 13(a) has a wider ‘human rights’ meaning rather than its ordinary meaning. She stated that ‘arbitrary’ is ‘concerned with capriciousness, unpredictability, injustice and unreasonableness — in the sense of not being proportionate to the legitimate aim sought’.[22] In adopting that approach, she relied upon a number of authorities, including Bell J’s decision in PJB v Melbourne Health.[23] In that case, Bell J stated the following:
[T]he human right in s 13(a) not to have your privacy … ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought.[24]
[21](2010) 27 VR 469, 483–4 [51]–[57].
[22]WBM v Chief Commissioner of Police (2012) 43 VR 446, 472 [114], [117] (‘WBM’).
[23](2011) 39 VR 373 (‘PJB’). This case is often referred to as ‘Patrick’s Case’.
[24]PJB (2011) 39 VR 373, 395 [85].
In WBM, the third member of the Court of Appeal, Bell AJA, disagreed on the question whether the Charter applied to the plaintiff and adopted his earlier analysis in PJB as to the meaning of ‘arbitrary’ in s 13(a) of the Charter.[25]
[25]WBM (2012) 43 VR 446, 490 [202].
In Victoria Police Toll Enforcement v Taha,[26] one of the human rights that this Court considered was the right in s 21(2) of the Charter to ‘not be subjected to arbitrary arrest or detention’. In the context of that right, Tate JA stated that ‘arbitrary’ ought reflect the ‘human rights’ meaning.[27]
[26](2013) 49 VR 1.
[27]Taha (2013) 49 VR 1, 66 [199].
In HJ v Independent Broad-based Anti-corruption Commission, Beach, Kyrou and Kaye JJA, in a joint judgment, stated:
There is some discussion in the authorities about the meaning of ‘arbitrary’ in the context of the Charter. It is not necessary for us to add to that discussion, other than to say that the adjective ‘arbitrary’ is wider than the adjective ‘unlawful’ in that an interference with a person’s privacy may be arbitrary — for example, because it is capricious — even if it is not unlawful.[28]
[28][2021] VSCA 200, [152].
The clear preponderance of authority supports the proposition that ‘arbitrary’ in s 13(a) of the Charter has the human rights meaning described by Warren CJ in WBM. That proposition is supported by authority, to which Warren CJ referred — consistently with s 32(2) of the Charter — in relation to the adjective ‘arbitrary’ in the ICCPR and also in relation to the privacy right in art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘European Convention on Human Rights’).[29] Accordingly, an arbitrary interference with privacy is one which is capricious, or has resulted from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought.
[29]WBM (2012) 43 VR 446, 470–1 [103]–[113].
However, the phrase ‘unreasonable in the sense of not being proportionate to the legitimate aim sought’ does not mean that, in determining whether an interference with privacy is arbitrary, direct and express consideration must be given to the matters set out in s 7(2) of the Charter. In other words, the phrase does not incorporate the proportionality analysis in s 7(2). Rather, the phrase requires a broad and general assessment of whether, in all the circumstances, the interference extends beyond what is reasonably necessary to achieve the statutory or other lawful purpose being pursued by the public authority.
A person who alleges that the privacy right has been limited has the onus of establishing that there has been an interference with his or her privacy and that the interference was unlawful or arbitrary. If that onus is not discharged, the privacy right is not engaged and provisions such as ss 7(2) and 38(1) of the Charter are not relevant in relation to that right. Some of the matters that may inform the question whether an interference is arbitrary — particularly whether the interference extends beyond what is reasonably necessary to achieve the statutory or other lawful purpose being pursued by the public authority — may be in the sole knowledge of the public authority. Accordingly, the discussion at [47] above regarding the evidence required to discharge the onus of establishing a limitation of a human right with an internal limitation is relevant to the privacy right.
We acknowledge that the relationship between the privacy right and the justification requirement in s 7(2) of the Charter can result in some overlap. In particular, if the person who invokes that right establishes that a public authority has arbitrarily interfered with his or her privacy, it would, ordinarily, be very difficult for the public authority to meet the justification requirement. That is because some or all of the facts and matters that inform the justification requirement will have already been considered on the question whether the interference is arbitrary. It will be impossible for the public authority to meet the justification requirement if it is established that there has been an unlawful interference because, in such a case, the limitation to the privacy right constituted by the interference would not be ‘under law’.
Scope of the dignity right
Section 22(1) of the Charter is directed at persons deprived of liberty. Those persons include individuals held in police custody, a remand centre or prison and individuals who are involuntary patients in a psychiatric institution.
By definition, persons deprived of liberty are not entitled to all the freedoms that are enjoyed by the general population, such as freedom of movement within Victoria.[30] However, s 22(1) of the Charter has the effect that, whilst persons in some form of legal detention are deprived of their liberty, they have a right to be treated humanely and with dignity.
[30]Charter s 12.
The precise content of the dignity right in s 22(1) of the Charter has not been determined. Nor have the courts formulated a test for determining when the dignity right is limited. That is not surprising because the scope of the right, and the circumstances in which it can be limited, will be informed by the nature, extent and purpose of the deprivation of a person’s liberty.
Self-evidently, some attributes of a person’s dignity may be restricted as a necessary feature of the deprivation of liberty to which the person is subject. For example, members in the general community might regard the freedom to choose the clothes they wear, the food they eat and the people with whom they associate as matters that affect their dignity. Those freedoms are necessarily restricted for persons serving a term of imprisonment in a maximum security prison.
In considering the content of the dignity right in s 22(1) of the Charter, a relevant factor is that individuals who are deprived of their liberty may be vulnerable in that they may not be able to resist incursions upon their dignity in the same way as members of the general community.[31] An involuntary patient in a psychiatric institution with a severe cognitive impairment would fall within this category.
[31]Castles v Secretary of the Department of Justice (2010) 28 VR 141, 166 [93] (‘Castles’).
In the case of prisoners, the content of the dignity right will be informed by the legal and practical realities of incarceration. As Emerton J stated in Castles v Secretary of the Department of Justice:
[F]or the period of their imprisonment, [prisoners] are largely deprived of their freedom of association and, to a significant extent, their autonomy. Hence, although prisoners do not forgo their human rights, their enjoyment of many of the rights and freedoms enjoyed by other citizens will necessarily be compromised by the fact that they have been deprived of their liberty.
…
[T]he effects of the deprivation of liberty are profound. Rights and freedoms which are enjoyed by other citizens will necessarily be ‘curtailed’, ‘attenuated’ and ‘qualified’ merely by reason of the deprivation of liberty.[32]
[32](2010) 28 VR 141, 169 [109], 170 [111].
However, the fact that the enjoyment of many rights and freedoms by prisoners is curtailed merely by reason of the deprivation of their liberty does not mean that the dignity right is nominal or that the arbiters of its content are the public officials who manage the prison. For all persons whose liberty is curtailed at the hands of the State, the dignity right is an important protection against abuse.
In Castles, Emerton J accepted a submission by the Victorian Equal Opportunity and Human Rights Commission that the ‘starting point’ to giving content to the dignity right ‘should be that prisoners not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty’.[33] Section 22(1) of the Charter only applies to persons deprived of liberty. It necessarily follows that hardship or constraints that are intrinsic to the loss of liberty do not engage the dignity right. However, that starting point cannot provide a universal test for identifying the scope of the dignity right.
[33](2010) 28 VR 141, 169 [108]. See also Certain Children v Minister for Families and Children [No 2] (2017) 52 VR 441, 519 [247] (‘Certain Children [No 2]’).
In determining the content of the dignity right, it is important to bear in mind the distinction between the scope of the right, which is determined by s 22(1) of the Charter — construed in accordance with the principles to which we have already referred — and the justification requirement in s 7(2). It is not necessary to adopt a narrow view of the scope of the dignity right in order to avoid undermining prison discipline and security and the efficient management of prisons. That is because a limitation on the dignity right can be legally effective if the requirements of s 7(2) are satisfied.
Some international jurisprudence suggests that prisoners are entitled to a lower level of human rights protection than members of the general community because of their incarceration. For example, some Canadian cases have held that prisoners do not have a reasonable expectation of privacy in certain matters, such as random urinalysis.[34] Whilst the notion of ‘reasonable expectation’ may bear upon the question of arbitrariness in the context of the privacy right, in our opinion, the concept does not assist in defining the scope of the dignity right. The content of that right must be determined objectively having regard to the provisions of the Charter and the principles summarised above.
[34]See [207] below.
The fact that the dignity right is expressed as a right ‘to be treated … with respect for’ dignity, rather than a bare ‘right to dignity’, does not have the effect of incorporating an internal limit on the right which requires that a lack of respect be demonstrated. In our view, the reference to ‘respect’ does no more than state that the right of persons who are deprived of liberty to their inherent dignity is to be respected.
Justification requirement in s 7(2) of the Charter
Section 7(2) of the Charter provides that, in order for a limitation on a human right to be permitted, it must be lawful (in the sense of being ‘under law’), reasonable and ‘demonstrably justified’ having regard to all relevant factors, including those set out in the section.
The requirement that the limitation must be ‘demonstrably justified’ involves consideration of whether the limitation on the relevant human right is proportional to the purpose that the limitation seeks to achieve. The doctrine of proportionality is at the heart of the inquiry mandated by s 7(2) of the Charter.[35]
[35]R v Momcilovic (2010) 25 VR 436, 476 [147]; Taha (2013) 49 VR 1, 72 n 244.
A corollary of the requirement that the limitation must be ‘demonstrably justified’ is that a measure of stringency is involved in meeting that standard.[36] Correspondingly, as discussed below, when, under s 38(1) of the Charter, the Court is considering whether a public authority has satisfied s 7(2), that consideration involves a greater degree of scrutiny than is traditionally undertaken by the Court in a judicial review proceeding.
[36]PJB (2011) 39 VR 373, 441 [310]; Bare v Independent Broad-based Anti-corruption Commission (2015) 48 VR 129, 203 [235], 226 [299] (‘Bare’).
The stringency associated with the justification requirement in s 7(2) of the Charter does not mean that the internal limitations that apply to some human rights must also be applied stringently in order to constrain the scope of those rights. As discussed at [46] above, whilst s 7(2) is part of the context within which each provision conferring a human right is to be construed, it does not create a bias in favour of either an overly narrow or an overly generous interpretation.
The onus of establishing that a human right has been limited is on the person alleging the limitation. Once it has been established that a human right has been limited, the onus is on the public authority to establish that the limitation is lawful, reasonable and can be demonstrably justified within the terms of s 7(2) of the Charter.[37] Because of the requirement that the limitation be demonstrably justified, the public authority will ordinarily need to adduce evidence that is sufficient to satisfy that standard of justification.[38] However, the standard of proof remains the civil standard, namely, the balance of probabilities.
[37]Momcilovic v The Queen (2011) 245 CLR 1, 247–8 [678]; Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, 448–9 [147]–[148]; R v Momcilovic (2010) 25 VR 436, 475 [144]; PJB (2011) 39 VR 373, 441 [310]; Certain Children [No 2] (2017) 52 VR 441, 498 [175].
[38]R v Momcilovic (2010) 25 VR 436, 476 [146].
The factor in s 7(2)(e) of the Charter — namely, any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve — may present some difficulties in relation to onus where a public authority contends that there are no such less restrictive means reasonably available. There is a tension between the need to avoid uncritical acceptance of a public authority’s mere assertion to this effect and the need to avoid imposing an onus upon a public authority to prove a negative.
How this tension is resolved will depend upon the circumstances of the case. By way of example, a decision-maker with extensive experience in the relevant area might give evidence that rationally explains the appropriateness of the course adopted in achieving the stated purpose and why no other less restrictive course that can achieve that purpose — as effectively and to the same extent — is reasonably available. In such a situation, the Court might accept that evidence in the absence of evidence — including by way of cross‑examination of the decision-maker — or submissions from the person alleging a limitation that casts doubt upon the veracity or reliability of the decision-maker’s evidence. A bald assertion by that person that it is inconceivable that less restrictive alternative means are not reasonably available to achieve the stated purpose would not ordinarily be sufficient to persuade the Court to reject the decision-maker’s evidence.
On the other hand, if the person alleging a limitation adduces evidence of less restrictive alternative means — or successfully challenges the decision-maker’s evidence through cross-examination — and the decision-maker does not address the evidentiary issues raised, it may be open to the Court to reject the public authority’s evidence that there are no less restrictive means reasonably available. In that event, the Court could find that the limitation that the decision-maker placed upon the person’s human rights was not justified and was thus incompatible with those rights.
As discussed in the context of the privacy right, where a human right contains internal limitations, those limitations must be considered in order to determine whether the right is engaged prior to consideration being given to the justification requirement in s 7(2) of the Charter.
Section 38(1) of the Charter
Section 38(1) of the Charter has two limbs: a procedural limb and a substantive limb. The procedural limb requires public authorities, when making a decision, to give proper consideration to a relevant human right, whereas the substantive limb requires public authorities to act in a way that is compatible with a human right. The procedural limb applies to the making of a decision, whereas the substantive limb applies to an act. As the distinction between an act and a decision is not material for present purposes, in the analysis that follows, we will use the term ‘conduct’ to describe both an act and a decision.
The procedural limb is additional or supplementary to any obligation imposed under the primary legislation governing the operations of the public authority.[39]
[39]HJ [2021] VSCA 200, [154], citing Bare (2015) 48 VR 129, 234 [323], 236 [326].
In Castles, Emerton J described the obligations of a public authority under the procedural limb of s 38(1) of the Charter in the following terms:
The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.[40]
[40](2010) 28 VR 141, 184 [185]–[186]. See also Giotopoulos v Director of Housing (2011) 34 VAR 60, 80 [90]; [2011] VSC 20.
The above observations were cited with approval by this Court in Bare v Independent Broad-based Anti-corruption Commission[41] and HJ.
[41](2015) 48 VR 129.
In Bare, Tate JA referred to the above observations from Castles and stated the elements that must be present for the procedural limb in s 38(1) of the Charter to be satisfied.[42] In HJ, this Court drew upon Tate JA’s statement to formulate the applicable test (‘HJ test’) as follows:
For a decision-maker to give ‘proper’ consideration to a relevant human right in compliance with s 38(1) of the Charter, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.[43]
[42](2015) 48 VR 129, 223 [288]–[289].
[43][2021] VSCA 200, [155], citing Castles (2010) 28 VR 141, 184 [185]–[186]; Bare (2015) 48 VR 129, 198–9 [217]–[221], 218–23 [277]–[289], 297–8 [535]–[536].
There is some uncertainty about the relationship between the procedural limb in s 38(1) of the Charter and the justification requirement in s 7(2). In particular, it is not clear whether the phrase ‘as part of the exercise of justification’ — which was first used by Emerton J in Castles and which now forms part of element 4 of the HJ test — imports the requirements of s 7(2).
In Bare, Tate JA stated that a proper consideration for the purposes of the procedural limb of s 38(1) of the Charter did not require recitation of the factors in s 7(2). She said that what was important was whether the public authority ‘had engaged in the exercise of weighing up countervailing considerations, including the effect of the decision on the relevant rights, the exercise which s 7(2) invites’.[44] In footnote 232, Tate JA explained what she meant by the statement ‘the exercise which s 7(2) invites’ as follows: ‘[i]n this sense, s 7(2) provides … a “standard of ‘propriety’” not available at common law against which a decision-making process can be judged’.
[44]Bare (2015) 48 VR 129, 222 [285].
In these observations, Tate JA did not say that the factors in s 7(2) of the Charter must be considered in undertaking the proper consideration required by the procedural limb of s 38(1). What Tate JA suggested was that those factors may provide a useful framework or reference point for the balancing of competing private and public interests which limb 4 of the HJ test requires.
On the basis of the above review of the authorities, it is readily apparent that the phrase ‘as part of the exercise of justification’ in element 4 of the HJ test does not import into the procedural limb of s 38(1) of the Charter the requirements of s 7(2). In other words, a public authority may give proper consideration to a relevant human right without giving direct and express consideration to each of the matters set out in s 7(2). A construction that required such consideration would be contrary to the principle derived from Castles that the procedural limb does not involve a sophisticated legal exercise and that there is no formula for compliance with it.[45] As explained in Castles, a sophisticated legal exercise is not required because the procedural limb applies generally to decision-making by Victorian public authorities. That decision-making includes decisions of a repetitive or routine nature by junior officers and decisions that must be made in circumstances of urgency. Further, persons whose human rights are limited retain the protection of the substantive limb, which requires that the impugned conduct be compatible with those rights.
[45]Castles (2010) 28 VR 141, 184 [185]. See [81] above.
Our conclusion at [87] above is consistent with the text of s 38(1) of the Charter, which refers to incompatibility with human rights — and therefore engages s 7(2) — in the substantive limb, but does not use that language in the procedural limb. It is also consistent with the purpose of the procedural limb described by Emerton J in Castles. It would be anomalous if, despite not being required to identify with precision the human rights that were engaged or limited, the public authority was required to subject the rights generally identified to the specific analytical demands of s 7(2).
However, our conclusion at [87] above does not mean that the matters set out in s 7(2) of the Charter cannot be taken into account by a public authority in satisfying the procedural limb of s 38(1). That is because, in giving proper consideration to a relevant human right in the manner required by the HJ test, a public authority will need to make a broad and general assessment of whether the impact that its conduct will have upon a relevant human right is appropriate in all the circumstances. That broad and general assessment is ‘the exercise of justification’ in element 4 of the HJ test. The matters in s 7(2) may, in appropriate cases, assist a public authority in making that broad and general assessment. However, as we have stated, that does not mean that those matters are incorporated into the procedural limb so as to make them mandatory relevant considerations.
Whether the requirements of the procedural limb are satisfied in a particular case is to be decided objectively by the court by applying the four limbs of the HJ test to the circumstances of the case. Some flexibility is appropriate in the application of the procedural limb to accommodate the vast variety of public decisions — and public authorities — that are subject to it.
However, the need for flexibility does not detract from the requirement that the consideration that is given to relevant human rights must be one of substance rather than tokenistic. The adjective ‘proper’ means that the standard of consideration must be higher than that generally applicable at common law to taking into account relevant considerations.[46] That is consistent with the model of the Charter as intended to have a normative effect on the conduct of public authorities.[47]
[46]Bare (2015) 48 VR 129, 203 [235], 217–18 [275]–[276].
[47]Bare (2015) 48 VR 129, 203 [235], 226 [299].
In undertaking an objective assessment of whether a public authority has complied with the procedural limb, the court may take into account the public authority’s views about the matter where the court considers that it may be assisted by those views. That may be the case, for example, where the impugned decision is of a specialised nature that involves highly developed expertise. It may also be the case for decisions of a recurring nature, which have been the subject of review and refinement with the benefit of experience over many years, including experience with the Charter. However, the fact that the court may take into account the views of a public authority where it considers that it may be assisted by them does not mean that the court is obliged to give ‘deference’, ‘latitude’ or special weight to those views. Of course, the experience or expertise of a particular decision-maker may bear upon the question of the weight to be attached to their views.
There is no warrant for dilution of the requirements of the procedural limb based upon imprecise notions such as ‘deference’ and ‘latitude’. Self-evidently, the court cannot treat the public authority’s views as determinative. If the court’s objective assessment is that a public authority has not met the requirements of the procedural limb, it will make a finding to that effect despite the contrary views of the public authority, irrespective of the expertise, experience or status of the public authority.
We now turn to the substantive limb of s 38(1) of the Charter.
As we have already noted, the substantive limb requires public authorities to act compatibly with an applicable human right. If they do not do so, their conduct will be unlawful.
A person who alleges that a public authority’s conduct is unlawful because it is incompatible with one of his or her human rights may apply to the Supreme Court for declaratory or other relief. In considering such an application, the Court must be satisfied that the human right upon which a party relies has been engaged. If the right is engaged, the Court must determine whether the public authority has placed any limitation upon the right and, if so, whether that limitation is lawful, reasonable and justified in accordance with s 7(2) of the Charter. If the Court decides that the public authority has limited the human right in a manner that is not justified under s 7(2), it can declare that the conduct of the public authority is in breach of s 38(1) — and thus unlawful — because it is incompatible with the human right.[48]
[48]Baker v DPP (2017) 270 A Crim R 318, 331–2 [57]–[58]; [2017] VSCA 58.
At [72] above, we stated that the requirement in s 7(2) of the Charter to demonstrably justify a limitation involves a measure of stringency. That heightened standard of justification means that, in a proceeding involving the question whether a public authority has acted incompatibly with an applicable human right, the Court applies a greater degree of scrutiny of the public authority’s conduct than in a conventional judicial review proceeding.[49] The Court undertakes an objective assessment of that conduct, the factual and evidentiary basis for it and the competing considerations that were brought to bear in deciding whether the conduct meets the proportionality requirement of s 7(2) and is therefore compatible with an applicable human right.
[49]PJB (2011) 39 VR 373, 443–4 [315]; Certain Children [No 2] (2017) 52 VR 441, 506–7 [212].
It is sometimes said that, even though a greater degree of scrutiny is involved in assessing whether a public authority has acted compatibly with a human right, because the Court is undertaking its judicial review function, it is not entitled to enter upon the merits of the public authority’s decision-making and second-guess it: the Court’s jurisdiction is supervisory, not substitutionary.[50] The task of the Court is to determine whether the impugned conduct of the public authority is unlawful because it did not comply with its human rights obligations under the Charter.
[50]PJB (2011) 39 VR 373, 443 [314].
In the context of the procedural limb, that observation is self-evident. The substantive limb is more complex because the Court is determining the issue whether the impugned action was, or was not, compatible with human rights. It decides that question on the basis of evidence, which is not necessarily confined to that which the public authority may have relied upon in its own evaluation of whether the proposed action would be compatible with human rights. In a sense, the Court’s task is neither judicial review nor merits review, but the determination of a question of mixed law and fact. The distinction between judicial review and merits review in this context is therefore not necessarily helpful.
Some authorities also suggest that, in order to apply the correct degree of scrutiny without encroaching into the merits of the impugned decision, the Court should give ‘deference’, ‘respect’ or ‘latitude’ to the decision-maker.[51] It will be apparent from our discussion of the procedural limb that we do not find these concepts helpful. As we have already stated in that context, the decision-maker’s expertise and experience may be taken into account in the Court’s assessment of whether the impugned decision is compatible with an applicable human right. The Court can give that expertise and experience such weight as is warranted in the particular circumstances of the case, without any preconception that they are to be given any particular deference, respect or latitude.[52] But, in the end, the Court must decide for itself whether the public authority has acted incompatibly with human rights, and therefore unlawfully.[53]
[51]See, eg, PJB (2011) 39 VR 373, 444 [317], 445 [319].
[52]See, eg, Certain Children [No 2] (2017) 52 VR 441, 508 [217]. The Court’s approach might also be informed by the nature of the impugned decision and the extent to which the Court is equipped to enter into factual controversies of a political or national security kind (for example): PJB (2011) 39 VR 373, 446–7 [325].
[53]PJB (2011) 39 VR 373, 442 [312]; Certain Children [No 2] (2017) 52 VR 441, 508 [218].
To state the obvious, conduct of a public authority can be declared to be unlawful if it is incompatible with a human right — contrary to the substantive limb of s 38(1) of the Charter — even if the public authority gave proper consideration to that right in accordance with the procedural limb. It is not necessary for us to consider the circumstances in which conduct which is found to be compatible with a human right will be declared to be unlawful due to noncompliance with the procedural limb.[54]
[54]Cf Certain Children [No 2] (2017) 52 VR 441, 511 [226]; Haigh v Ryan [2018] VSC 474, [98].
Judge’s orders dated 16 April 2021
On 16 April 2021, the judge made an order in each of the 2019 proceeding and the 2020 proceeding to give effect to the findings summarised at [7] above. The order in the 2019 proceeding, in which Dr Minogue was the plaintiff and Mr Thompson was the defendant, was in the following terms:
THE COURT DECLARES THAT:
1The defendant did not give proper consideration to relevant human rights in deciding to give the direction that the plaintiff submit to a random urine test on 4 September 2019, in breach of s 38(1) of the [Charter].
2The direction that the plaintiff submit to a random urine test on 4 September 2019 was incompatible with his [privacy] right … and his [dignity] right …, in breach of s 38(1) of the Charter.
3The strip search of the plaintiff on 4 September 2019 ordered by the defendant was not authorised by reg 87(1)(d) of the Corrections Regulations 2019 (Vic).
4The defendant did not give proper consideration to relevant human rights in deciding to order the strip search of the plaintiff on 4 September 2019, in breach of s 38(1) of the Charter.
5The strip search of the plaintiff on 4 September 2019 was incompatible with his [privacy] right … and his [dignity] right …, in breach of s 38(1) of the Charter.
AND THE COURT ORDERS THAT:
1The defendant is restrained from directing that the plaintiff submit to a random urine test unless and until:
(a)the Deputy Commissioner … has reviewed, revised, and reissued Deputy Commissioner’s Instruction No 3.10 — Programs Designed to Reduce Offending Behaviour — Detection and Testing — Drug and Alcohol Use (Instruction 3.10); and
(b)the Deputy Commissioner has certified in writing that:
(i)he or she gave proper consideration to relevant human rights in making the decision to reissue the revised Instruction 3.10; and
(ii)he or she is satisfied that, to the extent that random urine testing may limit a prisoner’s [privacy] right … and [dignity] right …, the limits are justified in accordance with s 7(2) of the Charter; and
(c)the defendant has reviewed, revised, and reissued Local Operating Procedure No. 3.10-1 — Urinalysis (Urinalysis Procedure) so that it is consistent with the revised Instruction 3.10.
2The defendant is restrained from ordering that the plaintiff be strip searched before a random urine test unless and until:
(a)the Deputy Commissioner has reviewed, revised, and re‑issued Deputy Commissioner’s Instruction No 1.05 — Searches and Patrols (Instruction 1.05); and
(b)the Deputy Commissioner has certified in writing that:
(i)he or she gave proper consideration to relevant human rights in making the decision to re-issue the revised Instruction 1.05; and
(ii)he or she is satisfied that, to the extent that strip searching may limit a prisoner’s [privacy] right … and [dignity] right …, the limits are justified in accordance with s 7(2) of the Charter; and
(c)the defendant has reviewed, revised, and reissued the Urinalysis Procedure so that it is consistent with the revised Instruction 1.05.
3 The proceeding is otherwise dismissed.
4 There is no order as to costs.
The order in the 2020 proceeding, in which Dr Minogue was the plaintiff and Ms Falkingham and Ms Tosh were the defendants, contained five declarations, an order dismissing the proceeding and an order that there be no order as to costs. The five declarations mirrored declarations 1–5 of the order in the 2019 proceeding. The main differences between the two sets of declarations are that the declarations in the 2020 proceeding refer to ‘the General Manager of Barwon Prison’ rather than ‘the defendant’ and to the random urine test and strip search conducted on 1 February 2020 rather than the random urine test and strip search conducted on 4 September 2019. The order in the 2020 proceeding did not contain the injunctions set out in the order in the 2019 proceeding.
Grounds of appeal
In the applications for leave to appeal, the applicants rely upon six identical grounds of appeal. Those grounds are set out below, together with the applicants’ summary of the judge’s findings which are the subject of the grounds:
Findings
The Court made the following relevant findings that were adverse to the applicants:
(1)The decision to implement the scheme for urinalysis tests and associated strip searches did not involve proper consideration of the relevant rights as required by s 38(1) of the Charter (the proper consideration finding).
(2)It was not lawful to require [Dr Minogue] to undertake a strip search before each of the urinalysis tests because there were not reasonable grounds (as required by reg 87(1)(d) of the Corrections Regulations …) for Mr Thompson … to consider that doing so was necessary for the security and good order of the prison (the reasonable grounds finding).
(3)The urinalysis tests and associated strip searches limited [Dr Minogue’s privacy and dignity] rights … and that limitation was not, in the circumstances, justified, contrary to s 38(1) of the Charter (the substantive breach finding).
Proposed grounds of appeal
[1]In making the proper consideration finding the Primary Court misinterpreted, misunderstood or misapplied s 38(1) of the Charter by:
(1)requiring the applicants to demonstrate that they had expressly considered each of the factors set out in s 7(2) of the Charter in order to discharge their obligation to give ‘proper consideration’ to relevant rights;
(2)affording no weight and latitude to the balance of impacts struck by the applicants in considering relevant rights.
[2]In making the proper consideration finding the Primary Court erred by:
(1)misconstruing or failing to consider the evidence of Mr Thompson of the consideration that he had given to the impact of the relevant prison policies on the human rights of prisoners that were affected by those policies; and/or
(2)failing to deal with an argument made by the applicant[s] that proper consideration had been performed by Mr Thompson.
[3]In making the substantive breach finding the Primary Court misinterpreted, misunderstood or misapplied s 13 of the Charter by:
(1)determining that the question of arbitrariness turned ‘primarily on whether it was proportionate to a legitimate end’; and/or
(2)failing to consider whether the internal limits applied before considering whether the requirements in s 7(2) of the Charter were met;
(3)equating the requirement for an absence of arbitrariness with requirements found in s 7(2) of the Charter; and/or
(4)conflating the assessment of whether the right was limited at all, with the assessment of whether any limits on rights [were] reasonable under s 7(2).
[4]In making the substantive breach finding the Primary Court misinterpreted, misunderstood or misapplied s 22(1) of the Charter by:
(1) interpreting it as a right to ‘dignity in detention’; and
(2) interpreting it as prohibiting:
(a)any practice that is ‘inherently demeaning’ (regardless of the reasons for its adoption); or
(b)any hardship or constraint that is not inherent in deprivation of liberty.
[5]In making the substantive breach finding the Primary Court misinterpreted, misunderstood or misapplied s 7(2) of the Charter by:
(1)affording no weight and latitude to the balance of impacts struck by the applicants; and/or
(2)reviewing the merits of the balance of impacts struck by the applicants;
(3)misconstruing or failing to consider the evidence of Mr Thompson that he had given consideration to the impact of the relevant prison policies on the human rights of prisoners; and/or
(4)imposing an onus on the applicants to demonstrate that there were no less restrictive means reasonably available to achieve the purpose that any limitation on the rights in ss 13 and 22(1) sought to achieve.
[6]In making the reasonable grounds finding the Primary Court erred by impermissibly imposing an evidentiary onus on the applicants and/or failing to act on evidence from the applicants that was unchallenged.
At the hearing of the applications for leave to appeal, the applicants sought leave to amend ground 6 to add a contention that was not raised at trial, namely, that reg 87 of the Corrections Regulations was repugnant to s 45(1) of the Corrections Act. Dr Minogue opposed the application. The Court refused leave on the basis that it was not expedient in the interests of justice to grant leave.[55] The applicants abandoned grounds 1(3) and 7. Accordingly, we have not extracted them at [104] above.
[55]See O’Brien v Komesaroff (1982) 150 CLR 310, 319; Coulton v Holcombe (1986) 162 CLR 1, 7–9; Water Board v Moustakas (1988) 180 CLR 491, 497.
Structure of the balance of the judgment
For convenience, the balance of these reasons will be divided into Part A headed ‘Random Urine Tests’, Part B headed ‘Strip Searches‘, Part C headed ‘Conclusion’ and Part D headed ‘Application to Re-open Hearing’.
Part A will set out the policy documents, the judge’s reasons, the parties’ submissions and the Court’s decision on grounds 1–5 insofar as they relate to random urine tests. Ground 6 will not be discussed in Part A, as it is not relevant to random urine tests.
Part B will set out the policy documents, the judge’s reasons, the parties’ submissions and the Court’s decision on grounds 1–6 insofar as they relate to strip searches. It will be seen that our conclusions in relation to grounds 1, 2 and 4 as they relate to random urine tests discussed in Part A also apply to those grounds as they relate to strip searches discussed in Part B. It will also be seen that, in relation to grounds 3 and 5, our decision regarding random urine tests differs from our decision regarding strip searches.
Part C will set out the Court’s overall conclusion in relation to the applications for leave to appeal.
Part D will set out the Court’s reasons for refusing an application by Dr Minogue to re-open the hearing of the applications for leave to appeal.
PART A: RANDOM URINE TESTS
Policy documents relevant to random urine tests
Corrections Victoria has had a strategy for addressing drug use in prisons in place since at least 2002. Its current strategy is contained in the Corrections Alcohol and Drug Strategy 2015 (‘Corrections Drug Strategy’). The strategy has four goals: supply control, demand reduction, harm reduction, and monitoring and innovation. Random general urinalysis is directed at achieving the first and second goals.
The Corrections Drug Strategy refers to a 2011 study which found that, in the study sample, over 75 per cent of males and at least 83 per cent of females reported illicit drug use in prison. The strategy describes the safety, security and health risks associated with drug use in prisons, including the following:
•Prisoners may place their visitors or other prisoners under considerable pressure to traffic drugs, or use violence to obtain drugs from others within [the] prison.
•The methods of using drugs in prison, particularly unsafe injecting practices, lead to an increased risk of health problems such as blood‑borne viruses, ulcers, and collapsed veins.
…
•The consequences of accumulating prison drug debts and being involved in the politics of prison drug activity can result in safety issues.
…
•The relapse of prisoners into drug use, either while still in custody or after release, is associated with an increased risk of overdose.
The Corrections Drug Strategy states the following about drug testing as a means of preventing or deterring drug use in prisons:
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 …
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.
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 [dignity] right in s 22(1) …, contrary to s 38(1) of the Charter.[131]
[131]Reasons [138]–[144] (citations omitted).
Parties’ submissions and decision on ground 5
The submissions that the parties made on ground 5 — which are summarised at [251]–[259] above — did not distinguish between random urine tests and strip searches.
In oral submissions, counsel for the applicants contended that the judge made assumptions that the less intrusive methods for strip searching women which are used in DPFC were practicable in a maximum security men’s prison such as Barwon Prison. Counsel argued that this was erroneous for two reasons. First, it crossed the boundary into merits review. Secondly, the judge had not put the possibility of adopting such a process to Mr Thompson for him to address any practical difficulties.
Crown Counsel submitted that fairness required that the judge should have given Mr Thompson an opportunity to meet any criticism that his evidence was deficient before she concluded that it was so.[132] He contended that this was particularly pertinent because Dr Minogue was self‑represented. He argued, by way of example, that Mr Thompson may have had very good explanations as to why DPFC was not a relevant comparator, such as the security classifications and the criminogenic factors relevant to the different cohorts held at each facility.
[132]Crown Counsel relied upon Browne v Dunn (1893) 6 R 67.
In response to questions from the Bench, Crown Counsel acknowledged that Instruction 3.10 states that adulteration of urine samples will be detected. However, Crown Counsel submitted that, without further evidence from Mr Thompson, it was not known whether adulteration could be universally discovered on urinalysis or only in some cases. In any event, Crown Counsel contended that strip searching also seeks to avoid prisoners substituting their urine sample with another prisoners’ urine.
In response to further questions from the Bench, Crown Counsel conceded that random strip searching of prisoners who had been selected for random urinalysis may achieve a similar goal to strip searching every such prisoner. However, he submitted that, if there was a low probability of being strip searched — such as 5 per cent — prisoners may be prepared to ‘roll the dice’.[133]
[133]Transcript of Proceedings (21 October 2021) 29.3–29.11.
Dr Minogue contended that it was by no means self-evident that a full strip search before a random general urine test was necessary in order to prevent substitution or adulteration of the sample. Rather, he argued that, as the judge observed, there was some evidence to the contrary, including that: (a) the Strip Search Requirement and Instruction 1.05 do not require a full strip search of female prisoners before a random urine test; (b) adulterating a urine sample is a disciplinary offence; and (c) the test results indicate whether a urine sample has been adulterated. He submitted that, notwithstanding that the Corrections Drug Strategy had been in place for almost 20 years, the applicants did not adduce evidence of its effectiveness, including by way of data, monitoring or evaluation.
Contrary to our conclusion that ground 5 was made out in relation to the random urine tests, in our opinion, ground 5 is not made out in relation to the strip searches. Our reasons for that opinion are set out below.
It will be recalled that the principles that apply to ground 5 are summarised at [70]–[78] and [95]–[101] above and that at [260] above we set out the principles that are particularly relevant to the present case.
It will also be recalled from [261]–[262] above that we rejected two submissions of the applicants. The first submission was that the judge misinterpreted or misapplied s 7(2) of the Charter by affording no weight or latitude to the balance of impacts struck by the applicants. The second submission was that the judge impermissibly exceeded the scope of her jurisdiction in determining the issue of compatibility under the substantive limb of s 38(1). Our reasons for rejecting these submissions apply to ground 5 insofar as it concerns the strip searches as it does insofar as it concerns the random urine tests.
It will be further recalled from [312] above that we concluded that Mr Thompson gave proper consideration to the privacy and dignity rights in the context of the strip searches that Dr Minogue was required to undergo on 4 September 2019 and 1 February 2020.
Mr Thompson’s evidence regarding the rationale for strip searches in the context of conducting random urine tests is set out at [299]–[302] above. The following evidence is particularly relevant to the present context:
(a)The purpose of requiring prisoners to be strip searched before providing a urine sample is to ensure that the prisoner ‘is not hiding on his body or in his clothing any substitute urine or means of adulterating the sample, which would wholly defeat the purposes of the [urine] test’.
(b)In his experience, prisoners who use drugs can seek to alter their urine sample by, for example, using the urine of another prisoner for their sample.
(c)The ‘only effective way of ensuring [that prisoners do not alter their urine sample] is to conduct a strip search of each prisoner before they give a urine sample’.
(d)He believes that a strip search prior to the provision of a urine sample ‘is necessary for both prison security and prisoner welfare because it ensures the effectiveness of the urine testing program’.
(e)The strip searching procedure can be adapted where necessary because of particular human rights concerns of individual prisoners.
(f)Between July 2019 and March 2020, of the 464 random general drug tests that were conducted at Barwon Prison, two were adulterated and none were interfered with. During that period, 1,002 targeted drug tests were conducted, three of which were interfered with and five of which were adulterated.
In our opinion, the judge was correct to find that the applicants had not discharged their onus of establishing that the limits placed upon Dr Minogue’s privacy and dignity rights by the strip searches he was required to undergo on 4 September 2019 and 1 February 2020 were justified for the purposes of s 7(2) of the Charter. We have reached that conclusion for the following reasons.
First, the manner in which the strip searches were conducted was extremely invasive and demeaning and thus constituted a severe limitation upon Dr Minogue’s privacy and dignity rights. Whilst, as we have already stated, the purpose of the limitation — to ensure the security of the prison and the safe custody and welfare of prisoners — lies at the heart of the prison system,[134] the severity of the limitation suggests that less intrusive alternatives might have reasonably been available.
[134]See [273] above.
Secondly, whilst Mr Thompson stated that a full strip search of every prisoner who provides a urine sample is the ‘only effective way of ensuring’ that prisoners do not alter their urine sample, he did not provide any details of the alternatives that he considered and why he concluded that they would not be effective. This assertion failed to address the alternatives that the evidence indicated might reasonably have been available.
One possible alternative is a low-dose X-ray body scan which, according to para 5.3.3 of the Strip Search Requirement, ‘may be substituted for a strip search where practical and appropriate to do so’.[135] We note that Ms Homatopoulos gave evidence that, when she reviews searching policies, she proposes alternatives such as the use of technology to reduce the number of strip searches on prisoners and visitors.[136] Neither Ms Homatopoulos nor Mr Thompson gave evidence as to whether X-ray machines or other suitable equipment are available at Barwon Prison and, if so, whether any assessment was conducted as to the effectiveness of the equipment and the extent to which use of the equipment to search prisoners impacted their privacy and dignity rights relative to full strip searches.
[135]See [283] above.
[136]See [295] above.
Another possible alternative is the different approach that is adopted for female prisoners in the Strip Search Requirement and Instruction 1.05. As appears from [284] and [288] above, those documents require female prisoners to bend over and part the cheeks of their buttocks only for targeted strip searches. There is also a procedure for top/bottom strip searching of female prisoners as an alternative to full strip searches. As Mr Thompson was intimately aware of the contents of the Strip Search Requirement and Instruction 1.05, it is surprising that he did not give evidence as to whether he considered these alternatives and whether he assessed their effectiveness relative to the current full strip search regime.[137]
[137]As conceded by Crown Counsel (see [343] above) a further alternative is random, rather than automatic, strip searches. Although the applicants regard the randomness of general urine testing as an effective deterrent upon drug use, there was no evidence that they have considered whether strip searching a random proportion of prisoners selected to undergo the random urine test would be an effective deterrent. This may be due to a concern that random strip searches may infringe reg 88 of the Corrections Regulations, which is set out at [38] above. As the parties and VALS did not address the effect of reg 88 in their submissions, we have not taken into account random strip searches in our analysis.
Thirdly, the applicants’ assertion that automatic full strip searches are necessary to prevent interference with urine samples — through adulteration of a prisoner’s sample or substitution of another prisoner’s sample — is conclusionary in nature and not adequately explained. As stated by the judge, having regard to the fact that prisoners are selected to provide a urine sample randomly and without any prior notice, it is not clear how a prisoner could have time and opportunity to arrange to obtain another prisoner’s sample. Likewise, as the sample is produced within the sight of at least one prison officer, it is difficult to see how the prisoner could adulterate or otherwise interfere with the sample. Further, as pointed out by the judge — and conceded by Crown Counsel before us — the procedures adopted at Barwon Prison are such as to detect adulteration of samples.
Fourthly, Mr Thompson did not refer to any independent supporting evidence for his conclusion that a strip search of a prisoner prior to provision of a urine sample ensures the effectiveness of the urine testing program. For example, there was no evidence that he had received feedback from prisoners or prison officers that full strip searches deter prisoners from either taking drugs or attempting to interfere with urine samples. This is to be contrasted with Mr Thompson’s evidence regarding the effectiveness of random urine tests. It will be recalled that Mr Thompson gave evidence that he had received feedback ‘over the years’ from prisoners and prison officers that prisoners are often deterred from taking drugs because of the risk of detection, and associated disciplinary consequences, if they were randomly selected to provide a urine test.[138]
[138]See [128] above.
The result is that it has not been shown that the limits upon the privacy and dignity rights were demonstrably justified, having regard in particular to the possibility, left open by the evidence, that there were less restrictive means reasonably available to achieve the purpose sought. This is not to reject the evidence of Mr Thompson, as the applicants contended. It is to find that the evidence was too general and vague to discharge the burden under s 7(2) of the Charter.
Having regard to the severe limitation upon the privacy and dignity rights of prisoners that strip searches involve and the deficiencies in the evidence about the need for, and availability of less intrusive alternatives to, automatic full strip searches, the applicants have failed to show that the limitation was proportionate to the purpose sought to be achieved by them, namely, to ensure the security of Barwon Prison and the safe custody and welfare of prisoners.
In reaching this conclusion, we do not find, or suggest, that any of the alternative means to which we have referred were reasonable or would have achieved the purpose sought. The point is simply that the evidence did not demonstrate otherwise.
For the above reasons, the judge did not err in finding that the directions that Dr Minogue undergo the strip searches on 4 September 2019 and 1 February 2020 were incompatible with his privacy and dignity rights, in breach of s 38(1) of the Charter.
Accordingly, ground 5 is not made out insofar as it relates to the strip searches that Dr Minogue was required to undergo on those days.
PART C: CONCLUSION
For the above reasons, the applications for leave to appeal will be granted and the appeals allowed.
We have upheld: grounds 1(1) and 2 in respect of both the random urine tests and the strip searches that Dr Minogue was required to undergo on 4 September 2019 and 1 February 2020; grounds 3 and 5 in respect of those random urine tests; and ground 6 in respect of those strip searches. Accordingly, paras 1, 2, 3 and 4 of the declarations in the judge’s orders made on 16 April 2021 in the 2019 and 2020 proceedings and the injunction in para 1 of the judge’s order made on 16 April 2021 in the 2019 proceeding will be set aside.[139]
[139]See [102]–[103] above.
As the applicants abandoned ground 7, the appropriateness of the injunction in para 2 of the judge’s order made on 16 April 2021 in the 2019 proceeding is not an issue for our determination. Nevertheless, we should record our reservations about the appropriateness of that injunction. The injunction restrains Mr Thompson from directing that Dr Minogue be strip searched before a random urine test unless and until three steps have been taken. First, the Deputy Commissioner has reviewed, revised and reissued Instruction 1.05. Secondly, the Deputy Commissioner has certified that he or she has given proper consideration to relevant human rights and, in deciding to reissue the revised Instruction 1.05, he or she is satisfied that, to the extent that it limits human rights, those limits are justified. Thirdly, Mr Thompson has reviewed, revised and reissued the Urinalysis Procedure so that it is consistent with the revised Instruction 1.05.[140]
[140]See [102] above. This form of injunction was ordered in Certain Children [No 2] (2017) 52 VR 441, 607 [586], 608 [588(c)].
In our opinion, it is to be doubted that a certificate by a public officer as to whether there has been compliance with particular provisions of the Charter can have any legal effect. That is because the Charter does not provide for such certificates and compliance is a legal issue for the courts to decide. Accordingly, a court order restraining particular conduct unless and until such a certificate is issued may be misguided. However, as the applicants abandoned ground 7 and the parties did not make any submissions on that ground, we will not say anything further on that issue.
PART D: APPLICATION TO RE-OPEN HEARING
After the conclusion of the hearing of the applications for leave to appeal on 22 October 2021, on 30 November 2021, Dr Minogue filed an application for leave to re-open the hearing on the basis of new evidence. The new evidence was described as the adoption by the applicants of ‘new policies in relation to drug and alcohol testing and associated strip searches at Barwon Prison’. Those policies, which were not exhibited to the affidavit in support of Dr Minogue’s application, were said to have been adopted on approximately 18 October 2021, that is, after the judge’s orders but prior to the hearing of the applications for leave to appeal.
The main ground upon which leave to re-open the hearing was sought was that the new policies ‘provide evidence as to the existence of less restrictive means reasonably available to achieve the purpose that the limitation on [Dr Minogue’s] human rights under the [policies which the judge considered and which form the subject matter of the applications for leave to appeal] sought to achieve’.
We directed the Registrar of the Court of Appeal to advise the parties that we had determined to refuse Dr Minogue’s application without calling for submissions from the applicants or conducting an oral hearing, and that we would provide brief reasons for that determination in our reasons for judgment. These are the brief reasons.
It will be recalled from [105] above that, at the hearing of the applications for leave to appeal, the applicants abandoned ground 7, which sought to impugn the injunctions in the order that the judge made on 16 April 2021 in the 2019 proceeding.[141] Crown Counsel explained the reason for the abandonment as follows:
I’ve … been instructed recently that the relevant prison policies that were in issue have changed or are certainly in the process of being changed and will change in the near future. The relevant consequence for that is there’s no longer utility, we submit, in proposed ground seven, that was the ground dealing with the injunctive relief, and I’m instructed to withdraw that proposed ground …[142]
[141]The order is set out at [102] above.
[142]Transcript of Proceedings (21 October 2021) 18.7–18.14.
Apart from stating that the making of the new policies was the reason for the abandonment of ground 7, neither Crown Counsel nor senior counsel for Dr Minogue made any submissions about the relevance or otherwise of the new policies to the issues to be determined by this Court. Further, senior counsel for Dr Minogue did not call for production of the new policies or seek an adjournment of the hearing of the applications for leave to appeal.
The new policies could only assist Dr Minogue in relation to our conclusion on the issue of compatibility that is dealt with in ground 5. In our opinion, it would not be appropriate to permit Dr Minogue to seek to support the judge’s findings on that issue by reference to the new policies for the following reasons:
(a)The new policies were adopted by the applicants because the injunction granted by the judge prevented them from directing Dr Minogue to undergo further random urine tests and associated strip searches unless and until the existing policies were reviewed, revised and reissued. In other words, the ‘new evidence’ constituted by the new policies came into existence because the applicants complied with the judge’s injunction notwithstanding that they considered the judge’s decision to be erroneous. In those circumstances, it would be incongruous for Dr Minogue to be permitted to use that ‘new evidence’ to support the correctness of the judge’s decision.
(b)Although Dr Minogue contends that the new policies provide evidence that less restrictive means were available, it may well be that the applicants would contend that those means are less effective than the current regime and that the applicants adopted them only because the applicants were legally obliged to do so. Such a contention by the applicants would mean that, in practical terms, the subject matter of the applications for leave to appeal would materially alter, with the focus being upon the new policies rather than the policies that were the subject matter of the trial. In all likelihood, a lengthy new hearing would be required to deal with the new policies.
(c)There is a public interest in finality in litigation. Once an application for leave to appeal is heard and judgment is reserved, there is a public interest in the Court being able to publish its decision as promptly as possible.
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