Victorian Court of Appeal grants appeal against decision that random urine testing, and associated strip searches, are incompatible with human rights
Thompson v Minogue [2021] VSCA 358
Summary
The Victorian Court of Appeal granted leave to appeal against the Supreme Court’s earlier decision that the directions at Barwon Prison that Dr Craig Minogue submit to random urine tests, and strip searches before the tests, were incompatible with his rights to privacy and to be treated with dignity while deprived of liberty in breach of section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). The appeal was successful on several grounds and the judges set aside the orders made in the earlier proceedings.
Supreme Court proceedings
Dr Minogue challenged the lawfulness of the directions that he submit to random alcohol and drug tests (which required he provide a urine sample in the presence of a prison officer) and be subjected to strip searches before the tests, while being detained in Barwon Prison.
The Supreme Court made the following findings which were subject to grounds of appeal:
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 section 38(1) of the Charter;
it was unlawful to require Dr Minogue to undertake a strip search before each of the urinalysis tests because there were not reasonable grounds to consider that doing so was necessary for the security and good order of the prison, as required by regulation 87(1)(d) of the Corrections Regulations; and
the urinalysis tests and associated strip searches limited Dr Minogue’s privacy and dignity rights and that limitation was not, in the circumstances, justified, and was contrary to section 38(1) of the Charter.[1]
Court of Appeal proceedings
Key Findings
Incorrect interpretation of section 38(1) of the Charter
The Court of Appeal found that the trial judge incorrectly interpreted the procedural limb under section 38(1) of the Charter which requires public authorities to give ‘proper consideration’ to a relevant human right when making decisions. It was held that public authorities were not required to demonstrate that they had expressly considered each of the factors in section 7(2) of the Charter when discharging their obligation under section 38(1), which is a much lower standard.
Section 7(2) was referred to as a tool used to examine past conduct to determine whether a right has been limited, whereas the procedural limb of section 38(1) is forward-looking and only requires a public authority to make a broad and general assessment of whether the impact that its conduct will have upon a relevant human right is justified, in the sense that it is appropriate in all the circumstances.
The random alcohol and drug testing regime was reasonable and proportionate
The Court of Appeal found that the direction that Dr Minogue be randomly selected to do a random urine test was not unlawful. It was held that the scheme for urinalysis tests was reasonable and proportionate to protect the rights to life and personal safety and security of people in prison by addressing the serious drug-use problem at Barwon Prison.
There was reliable evidence admitted that urine tests were an effective deterrent against drug use in the prison. The Court of Appeal was satisfied that the frequency of random urine tests was neither “negligible or oppressive” and that there were no less restrictive means reasonably available which would achieve the same level of deterrence.[2]
Strip searches before the urinalysis were incompatible with Dr Minogue’s human rights
The Court of Appeal agreed with the trial judge’s finding that the directions that Dr Minogue undergo strip searches prior to the random urine tests was excessive. It was found that such a requirement extended beyond what was reasonably necessary to achieve the purpose of the urine tests to deter people in prison from drug and alcohol use.
It was held that the strip searches were incompatible with Dr Minogue’s right to privacy[3] and right to dignity[4] for the following reasons:
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;
there was no evidence provided of alternative methods to a full strip search and their effectiveness;
the assertion that automatic full strip searches are necessary to prevent interference with urine samples – through adulteration of a person’s sample or substitution of another person’s sample – is conclusionary in nature and was not adequately explained; and
there was no independent evidence that a strip search of a person prior to provision of a urine sample ensures the effectiveness of the urine testing program.
The Court of Appeal also suggested that less invasive alternatives to strip searching, including low-dose X-ray body scans or targeted or top/bottom strip searches, could be used in this context.
The evidentiary onus is on the party seeking to show that the strip searches were unlawful
The Court of Appeal found that Dr Minogue, as the party contending that his rights had been unlawfully interfered with, was required to prove that the strip searches conducted were not necessary for the security good order of the prison for the purposes of regulation 87(1)(d) of the Corrections Regulations. It was held that the trial judge erroneously reversed this onus of proof.
Commentary
The Court of Appeal’s decision disappointingly overturned the Supreme Court’s earlier finding and found that requiring Dr Minogue to undergo random urine testing was not incompatible with his human rights, but it is welcome and significant that the Court of Appeal confirmed that the practice of routinely strip searching people in prison who are undergoing urine testing was incompatible with his human rights.
The full case can be read here.
Harriet Forster is a lawyer on secondment at the Human Rights Law Centre.
[1] Thompson v Minogue [2021] VSCA 358 (17 December 2021) [104].
[2] Ibid [272].
[3] Charter, s 13(a).
[4] Charter, s 22(1).