Minogue v Thompson [2021] VSC 56

Minogue v Thompson [2021] VSC 56 - VSC 2021 case summary — Zoe

[15]

(a) The person being searched must be instructed to stand facing the first officer. The second officer must remain at a reasonable distance to the side or at the rear of the first officer. The role of the second officer is to witness the conduct of the search and to assist with the searching of garments as required; and

(b) Direct the person being searched to surrender any item carried or in pockets for thorough examination; and

(c) Direct the person being searched to remove footwear and all clothing, one piece at a time (including underwear and socks, where applicable); and

(d) Direct the person being searched to hand each article of footwear and clothing to the officer who will examine and search each item individually, including underwear and socks; and

(e) Direct the person being searched to open their mouth and to remove denture plate if one is worn. The officer will visually examine the mouth, instructing the person being searched to lift the tongue; and

(f) Where there are concerns that the person being searched is secreting contraband in their mouth, a more thorough search may be conducted where the person being searched is to be directed to lift their top lip and lower their bottom lip; and

(g) Direct the person being searched to remove any hair accessories (e.g. hair clips or bands) and have any long hair loose (i.e. not in a plat or braid), bend forward and with a vigorous combing action run fingers through their hair; and

(h) Direct the person being searched to turn their head to the left and right clearing hair from the region of the ears to enable a visual examination of the ear cavities and the area behind the ears; and

(i) Direct the person being searched to raise their arms up in the air and check the armpits, then direct them to lower their arms horizontal to the ground and turn their hands over, palms facing upwards. The officer will then conduct a visual examination and check (particularly for prisoners) for any fresh signs of intravenous drug use, new tattoos or signs of self harm; and

(j) Direct the person being searched to fully extend and separate their fingers to also check for any contraband or intravenous drug use at this time and ask the person being searched to turn their palms over so they can visually examine the backs of the hands; and

(k) Direct male persons being searched, to lift the scrotum and then lift the penis away from the scrotum; and

(l) Direct the person being searched to turn around facing away from the officer and lift one foot at a time from the ground, then wriggle their toes. Officers are to conduct a visual examination of the soles of the feet;

(m) Direct the person being searched to bend over at the waist until the hands are about 30 centimetres from the ground and to part the cheeks of the buttocks with the hands. Officers will then visually examine the person being searched to ensure that they are not secreting any contraband; and

(n) Direct the person being searched to dress and leave the area. Legislation explicitly states that the person being searched is allowed to dress in private immediately after the search is finished.

[134]

(a) Section 13(a) provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. The direction that Dr Minogue submit to a random test was authorised under s 29A of the Corrections Act, and so was not unlawful. It was not arbitrary,[65] because the direction was given in accordance with established procedures, and was proportionate to the legitimate aim of protecting prisoners from drug-related harms, and the management, good order, and security of the prison. Alternatively, any interference with Dr Minogue's privacy was justifiable in light of those objectives. Corrections referred me to the authorities of R v Connors[66] and Weatherall v Canada (Attorney-General),[67] in which interferences with prisoners' privacy were held to be proportionate to important objectives such as security and prisoner rehabilitation.

(b) The starting point for the dignity right in s 22(1) is that prisoners are not to be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty.[68] Random urine testing is not inherently demeaning, and does not limit the dignity right where it is authorised under s 29A of the Corrections Act. It is consistent with the Standard Guidelines for Corrections in Australia (Revised 2012), which gives content to the right of prisoners to be treated with humanity and respect for their dignity.

(c) Any limitation of Dr Minogue's rights was justified, because Mr Thompson considered it to be necessary in the interests of the management, good order and security of Barwon Prison.[69] Weight and latitude should be given to his assessment, in light of his experience and the practical demands of managing the prison. Random urine testing was necessary to ensure that the prison is a safe and humane place, as required by the Guidelines, and was implemented consistently and in accordance with Instruction 3.10. There was no evidence that those objectives could be achieved by less restrictive means.

[140]

I accept that this purpose is important for prisoner welfare and rehabilitation, and for the good order and security of Barwon Prison. There is no doubt that it is an important and legitimate aim.

(e) The nature and extent of the limitation has already been described.[78] Irrespective of the fact that he has no history of drug use, and has never tested positive to alcohol or illicit drugs, Dr Minogue was required on two occasions to produce a urine sample for testing, in the presence of two prison officers. On both occasions, he was required to submit to a strip search.[79]

(f) Although Corrections emphasised the need to have regard to the practical demands of prison administration, there was scant evidence of the relationship between the limitation and its purpose. Mr Thompson believes random testing to be effective, based on conversations he has had with prisoners and prison officers over the years. Beyond that, there was no evidence as to why Corrections regards random urine testing of 5% of the entire prison population each month to be a key component of its Alcohol and Drug Strategy. The Alcohol and Drug Strategy includes an evaluation framework, but there was no evidence that the effectiveness of random testing had been monitored or assessed against any objective measure of performance.

(g) While alternative testing procedures are contemplated by the Corrections Act and Regulations,[80] the evidence did not explain why these are not considered effective alternatives to random urine testing. Indeed, there was no evidence that Corrections had considered alternative, less intrusive measures available to achieve the objectives of the Strategy and to implement the Guidelines. Contrary to Corrections' submission, the Guidelines do not mandate urine testing and strip searching as necessary components of a prison drug strategy. Random alcohol and drug testing occurs in other settings in the Victorian community, including roadside testing of motorists[81] and in many workplaces.[82] This is done using testing procedures other than urinalysis, and without strip searching every person tested. I do not accept Corrections' submission that the availability of alternatives must be disregarded because there is no evidence about their relative efficacy.

(h) This is not a case where deference is due to the human rights balance struck by the decision-maker. While I accept that Mr Thompson is a very experienced prison administrator, the Urinalysis Procedure was not the result of a thorough and well-reasoned consideration of relevant human rights.[83] Mr Thompson in fact gave no consideration to human rights when he adopted the Urinalysis Procedure, believing that this had been done by the Deputy Commissioner and those advising him when Instruction 3.10 was issued. As discussed, the Charter assessment for Instruction 3.10 fell short of proper consideration of relevant rights.[84]

(i) Overall, the evidence did not establish, to the required standard of stringency, that the limitations of Dr Minogue's rights to privacy and dignity in detention were reasonable or 'demonstrably justified in a free and democratic society based on human dignity, equality and freedom'.[85] Nor did it establish that the interference with his privacy was proportionate to its purpose.

[145]

5.1.1 A Prison Officer may not conduct a strip search of a person unless authorised by the General Manager or an officer delegated by the General Manager. Permission to conduct strip searches includes occasions where searches form part of the prison's standard practice in circumstances formally approved by the General Manager.

5.1.2 The person being searched must be advised of what will take place, ensuring that they understand the nature, process and reasons for the strip search.

5.1.3 The search must be conducted in an objective and professional manner, with regard to the privacy and self-respect of the person being searched whilst avoiding any unnecessary force, embarrassment or indignity. Searches must not to include vaginal or anal internal searches or the removal of tampons.

5.1.4 Officers conducting strip searches must be trained in the correct application and protocol of strip searching.

5.1.5 A suitable search area must be used that affords the person being searched privacy from the view of others not involved in conducting the search.

5.1.6 Top/bottom strip searches ('alternative' strip search) may be used as specified by the General Manager through operating procedures or specific direction. The alternative method involves the person being searched going through the same checks as for a full strip search, however, only half of the clothes are removed at any one time.

5.1.7 If any contraband is found during the top/bottom method the officer must revert to the standard procedure.

5.1.8 At least two officers must attend all searches and unless exceptional circumstances exist, both officers must be of the same sex as the person being searched.

5.1.9 In the event that an officer is present who is not the same sex as the person being searched, that officer must ensure they are able to see the other officer but are not able to view the prisoner.

5.1.10 In an emergency, if no female officers are available to search females, an Operations Manager must be contacted and authorisation given prior to any male officers conducting the search.

5.1.11 Officers conducting strip searches must take into consideration any relevant requirements and procedures regarding gender, age, disability, religion, language and culture.

5.1.12 A person being searched who has a disability must be subject to the standard search regime; however, the impact of the strip search being unduly adverse must be considered.

5.1.13 A person who requires a walking aid should not be without the aid or some other form of support at any time during the search.

5.1.14 Wherever possible, strip searches of people with transsexualism or intersex conditions will be performed by officers of the gender nominated by the person being searched. Officers conducting such strip searches must refer to the Commissioner's Requirement - Management of Prisoners who are Trans, Gender Diverse or lntersex.

5.1.15 All details of searches requiring the removal of clothing must be recorded:

[158]

inform the prisoner of what is to take place;
Prison staff conducting strip searches of prisoners should take into consideration Deputy Commissioner's Instruction 3.07 - Religion.
ensure the prisoner stands facing an officer;
first, order the prisoner to surrender for thorough examination, any item carried or in pockets;
direct the prisoner to remove all clothing and footwear, including underwear and socks;
direct the prisoner to hand each article of clothing, one at a time, including underwear and socks, as well as footwear to the officer who will examine and search each item;
direct the prisoner to open his mouth and to remove a denture plate if one is worn. An officer will visually examine the mouth, instructing the prisoner to lift the tongue. No 'aids' such as torches, lamps and/or portable lights are to be used during this process;
where there are concerns that the prisoner is secreting contraband in his mouth, a more thorough search may be conducted where the prisoner is directed to lift his top lip and lower his bottom lip;
direct the prisoner to turn his head to the left and right clearing hair from the region of the ears to enable a visual examination of the ear cavities and the area behind the ears;
direct the prisoner to bend forward and with a vigorous combing action run fingers through his hair;
direct the prisoner to raise his arms horizontal to the ground, fingers fully extended and separated, and conduct a visual examination from the armpits along the arms to the fingers, and repeat for the back of the arms and hands;
direct the prisoner to turn around facing away from the officer, lift each foot from the ground and wriggle the toes to enable a visual examination of the soles of the feet;
direct the prisoner to bend over until the hands are about 30 centimetres from the ground, and to part the cheeks of the buttocks with his hands enabling the Prison Officer to ensure that no contraband or unauthorised articles are concealed in this area;
where necessary to enable an adequate visual inspection of areas that may conceal contraband, direct a male prisoner to lift his testicles;
direct the prisoner to dress and leave the area; (reg 69(6)(d) explicitly states that the prisoner be allowed to dress in private immediately after the search is finished);
place all unauthorised articles discovered during the search in a plastic bag, seal and label - reg 69(4)(e) explicitly states that if clothing is seized during the search then the prison officer must ensure that the prisoner is provided with appropriate clothing to wear.

At a glance

Court

Decision date

Before

Source

Judgment (320 paragraphs)

Parties

Legislation Cited (24)

Cases Cited (14)