Supreme Court of Victoria finds that random urine testing, and associated strip searches, are incompatible with human rights

Minogue v Thompson [2021] VSC 56 (16 February 2021)

Summary

The Victorian Supreme Court has found that whilst being held in prison, a person’s right to privacy and the right to be treated with dignity while deprived of liberty under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) were violated when he was subjected to random drug and alcohol testing and a strip search before providing a urine sample for such testing. While Justice Richards found that Dr Minogue’s Charter rights were breached, Her Honour is yet to make orders on relief.

Facts

Dr Craig Minogue is serving a sentence at Barwon Prison. This judgement related to three separate challenges, managed and heard together, which were each concerned with his rights as a person in prison in relation to the practice of random drug and alcohol tests and strip searches under the Corrections Act 1986 (Vic) (Corrections Act), the Corrections Regulations (2019) (Vic) (Corrections Regulations) and the Charter.

The first and second challenge related to two instances where Dr Minogue was required to submit to a random alcohol and drug test.  The drug and alcohol test was conducted by a urinalysis. Dr Minogue was subjected to a strip search and required to provide a urine sample in the presence of prison officers. Dr Minogue was told that if he did not submit to the urine test and strip search he would receive disciplinary action.

The third challenge related to the policy of Barwon Prison that all people in prison be strip searched before a visit with any external visitor. Dr Minogue received a visit from his lawyer and was asked to submit to a strip search. Dr Minogue, under protest, submitted to the strip searches before and after the visit.

For each challenge, Justice Richards considered whether the direction in question was authorised, whether there was a proper consideration of the human rights impact and whether the direction was compatible with the relevant human rights.

Key Findings

1.      Random drug and alcohol tests conducted by urinalysis

Justice Richards found that the direction to submit to a random drug and alcohol test, via a urine test, was authorised by section 29A of the Corrections Act but that the relevant human rights were not considered when making the decision to direct Dr Minogue to submit to random urine tests, and associated strip searches.

Her Honour was not satisfied that the urine tests and strip searches were proportionate or reasonable or necessary. No evidence was given that demonstrated that the practice was effective in achieving the goal of minimising drug or alcohol use in prison.

There was no explanation offered as to why the drug and alcohol tests were conducted via a urine test. Justice Richards noted that alternative methods of testing, such as breathe tests that motorists are subjected to, would be less intrusive.

The urinalysis procedure is applied regardless of the person’s history with drug and alcohol. Dr Minogue has no history of drug use, and has not, in more than 30 years, ever returned a positive result for drug or alcohol use.

Justice Richards therefore found that the direction to submit to a random urine test, and associated strip search, was ultimately incompatible with the right to privacy and the right to be treated humanely and with respect for human dignity while deprived of liberty. 

2.      Strip searches before urinalysis tests

Justice Richards found that the directions to submit to a strip search before the urinalysis test were not authorised by regulation 87(1)(d) of the Corrections Regulations and were also not compatible with human rights.

Mr Thompson, the General Manager at Barwon Prison, gave evidence that strip searches before the provision of a urine test were necessary for prison security and for the welfare of people in prison because it ensured the effectiveness of the urine testing program. In particular, Mr Thompson told the court that strip searches were necessary to ensure that people in prison were not “hiding on his body or in his clothing any substitute urine or means of adulterating the [urine] sample.”[1]

Justice Richards found that Mr Thompson did not provide reasonable grounds for that belief.  Her Honour reasoned that as the urinalysis tests are random, infrequent, take place without warning and are done under the supervision of prison officers, people in prison are unlikely to have the opportunity to interfere with the urine sample. Her Honour also highlighted that interference with a urine sample is detectable and would result in disciplinary consequences.

Her Honour found that although the purpose of the strip search was legitimate, the direction was not proportionate or justified. This is because the evidence did not demonstrate that alternatives were considered, or that the strip searches were “necessary or even conducive” to achieving that purpose.[2]

On that basis, the direction to submit to a strip search before providing a urine test was incompatible with the right to privacy[3] and the right to be treated humanely and with dignity whilst detained.[4] This is a contravention of section 38(1) of the Charter.

3.     Strip searches before contact visits

Justice Richards accepted that the strip searches of Dr Minogue prior to a visit with an external visitor was authorised under regulation 87(1)(d) of the Corrections Regulations and found that it was compatible with the relevant human rights. This was because the direction was authorised under the Corrections Regulations and because Mr Thompson gave proper consideration to the human rights impact of the direction. Her Honour also accepted that there was a “demonstrated relationship between the limitation and its purpose of ensuring the safety of visitors, prisoners and staff.”[5]

Commentary

This case highlights that standard practices within prisons may be incompatible with human rights; even where that practice is enshrined in instructions made by the Deputy Commissioner.

Justice Richards observed that being subjected to a strip search is “inherently demeaning” and limits the right to be treated humanely and with dignity while in detention.[6] Therefore, any policy involving strip searches in prison needs to be made demonstrably justifiable for its purpose. This case may provide an opportunity to consider whether strip searches ordered in other contexts are a justifiable limitation on human rights.

The full case can be read here.

Cassandra Hamill is a graduate lawyer on secondment at the Human Rights Law Centre.

[1] Minogue v Thompson [2021] VSC 56 (16 February 2021) (Minogue v Thompson), [116].

[2] Ibid, [143].

[3] Charter, s 13(a).

[4] Charter, s 22(1).

[5] Minogue v Thompson, [145].

[6] Ibid, [139].