Plaintiff v Defendant

Supreme Court of Victoria|2021-04-29|Before: Richards J

JUDICIAL REVIEW - Remedies - Declarations - Form of declarations to give effect to findings in Minogue v Thompson [2021] VSC 56 - Whether misleading to refer to human rights of the plaintiff - Whether human rights justiciable - Whether declarations should 'act as a roadmap for the normative model' established by the Charter - Function of declaratory relief - Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39.

1 On 16 February 2021, I published reasons for judgment in these three proceedings,[1] in which I found, in summary:

(a) Directions that Dr Minogue submit to random urine tests on 4 September 2019 and 1 February 2020 were authorised by s 29A of the Corrections Act 1986 (Vic);

(b) Proper consideration was not given to relevant human rights in making the directions, in breach of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic);

(c) 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;

(d) Strip searches of Dr Minogue before his random urine tests on 4 September 2019 and 1 February 2020 were not authorised by reg 87(1)(d) of the Corrections Regulations 2019 (Vic), because there were not reasonable grounds to believe that they were necessary for the security and good order of the prison;

(e) Strip searches of Dr Minogue on 18 February 2020, before and after a contact visit with his lawyer, were authorised by reg 87(2) of the Corrections Regulations;

(f) 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; and

(g) 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.

2 The judgment was provided to the parties under cover of an email from my associate requesting the parties to file and serve written submissions as to the orders to be made as a result of my judgment, including a minute of the orders sought. The parties were asked to ensure that their respective submissions addressed some specific matters, including the form of declarations that I had in contemplation, and whether injunctions should be granted in proceeding S ECI 2019 04631.

3 A further hearing was listed on 16 April 2021, in relation to the orders to be made in each proceeding to give effect to my judgment.

4 Both Dr Minogue and the defendants (referred to collectively as Corrections) filed written submissions on 5 March 2021. Corrections filed a brief reply submission on 16 March 2021. Dr Minogue filed 'final submissions' on 29 March 2021, which he relied on in place of his earlier submissions. He later withdrew part of his final submissions, with the result that he pressed his claim for injunctive relief.

5 On 13 April 2021, my associate sent a further email to the parties, setting out a proposed form of injunctions that I was considering granting in proceeding S ECI 2019 04631. The parties were asked to consider, and address at the hearing, whether orders should be made in that form.

6 At the hearing on 16 April 2021, I made declarations in proceedings S ECI 2019 04631 and S ECI 2020 00798 in the form proposed on 16 February 2021. I also granted injunctions in proceeding S ECI 2019 04631 in the form proposed on 13 April 2021. Those two proceedings were otherwise dismissed, with no order as to costs. Proceeding S ECI 2020 00822 was dismissed, with no order as to costs.

(a) making the declarations in the form initially proposed, and not in the form sought by Dr Minogue;

(b) granting injunctions in proceeding S ECI 2019 04631;

(c) making no order in proceedings S ECI 2019 04631 and S ECI 2020 00822 in relation to my findings that, after Dr Minogue was strip searched on 4 September 2019 and 18 February 2020, he was not allowed to dress in private; and

(d) making no order as to costs in any proceeding.

Proceeding S ECI 2019 04631 - Minogue v Thompson

8 In proceeding S ECI 2019 04631 I proposed making the following declarations:

The 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 of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
The direction that the plaintiff submit to a random urine test on 4 September 2019 was incompatible with his right to privacy, in s 13(a) of the Charter, and his right to be treated with humanity and 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.
The 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).
The 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.
The strip search of the plaintiff on 4 September 2019 was incompatible with his right to privacy, in s 13(a) of the Charter, and his right to be treated with humanity and 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.

9 Corrections did not object to declarations being made in that form.

10 Dr Minogue sought more detailed declarations, as follows:

In deciding to give the direction on 4 September 2019, that the plaintiff submit to random urinalysis which was mandated by policy, that the defendant Mr Colin Thompson, acted in a way that was incompatible with the relevant human rights, in breach of s 1(2)(c) & 38(1) of the Charter, and

(a) failed to interpret s 29A of the Corrections Act 1986 in so far as it is possible in a way that is compatible with human rights, in breach of ss 1(2)(b), 32(1) & 38(1) of the Charter;

(b) failed to give proper consideration to the relevant human rights, in breach of ss 7(2)(a)(b)(c)(d)(e)(3) & 38(1) of the Charter;

(c) failed to protect and promote the operation of the right to privacy at s 13(a) of the Charter, in breach of ss 1(2)(b), 7(1) & 38(1) of the Charter; and

(d) failed to protect and promote the operation of the right to be treated with humanity and respect for the inherent dignity of the human person at s 22(1) of the Charter, in breach of ss 1(2)(b), 7(1) & 38(1) of the Charter.

The policy mandated strip search on 4 September 2019, carried out by Prison Officers Mr C. Stones and Mr T. Smith as part of the random urinalysis, as not authorised by reg 87(1)(d) of the Corrections Regulations 2019.
By ordering by policy direction that the plaintiff was to be strip searched on 4 September 2019, that the defendant, acted in a way that was incompatible with the relevant human rights, in breach of s 1(2)(c) and 38(1) of the Charter, and

(a) failed to interpret r 87(1)(d) of the Corrections Regulations 2019 in so far as it is possible in a way that is compatible with human rights, in breach of ss 1(2)(b), 32(1) & 38(1) of the Charter;

(b) failed to give proper consideration to the relevant human rights, in breach of ss 7(2)(a)(b)(c)(d)(e)(3) & 38(1) of the Charter;

(c) failed to protect and promote the operation of the right to privacy at s 13(a) of the Charter, in breach of ss 1(2)(b), 7(1) & 38(1) of the Charter; and

(d) failed to protect and promote the operation of the right to be treated with humanity and respect for the inherent dignity of the human person at s 22(1) of the Charter, in breach of ss 1(2)(b), 7(1) & 38(1) of the Charter.

On 4 September 2019, Prison Officers Mr C. Stones and Mr T. Smith failed to allow the plaintiff to dress in private after the strip search, as is a mandatory requirement at reg 86(2)(e) of the Corrections Regulations 2019.
The failure to allow the plaintiff to dress in private after the strip search on 4 September 2019, the defendant and Prison Officers Mr C. Stones and Mr T. Smith acted in a way that was incompatible with the relevant human rights, in breach of s 1(2)(c) and 38(1) of the Charter, and

(a) failed to interpret r 86(2)(e) of the Corrections Regulations 2019 in so far as it is possible in a way that is compatible with human rights, in breach of ss 1(2)(b), 32(1) & 38(1) of the Charter;

(b) failed to give proper consideration to the relevant human rights, in breach of ss 7(2)(a)(b)(c)(d)(e)(3) & 38(1) of the Charter;

(c) failed to protect and promote the operation of the right to privacy at s 13(a) of the Charter, in breach of ss 1(2)(b), 7(1) & 38(1) of the Charter; and

(d) failed to protect and promote the operation of the right to be treated with humanity and respect for the inherent dignity of the human person at s 22(1) of the Charter, in breach of ss 1(2)(b), 7(1) & 38(1) of the Charter.

11 In his written submissions dated 29 March 2021, Dr Minogue argued that the obligation in s 38(1) of the Charter to give proper consideration to relevant human rights is intended to have a normative effect on the conduct of public authorities.[2] He submitted that the normative model of the Charter consists of the obligations of public authorities to:

(a) interpret statutory provisions compatibly with human rights, in ss 1(2)(b) and 32(1);

(b) act compatibly with human rights, in ss 1(2)(c) and 38(1);

(c) protect and promote human rights, in ss 1(2)(a), 7(1) and 38(1); and

(d) give proper consideration to human rights in making a decision, in ss 7(2)-(3) and 38(1) of the Charter.

Although vindicating my position, the declarations agreed to by the defendants will have no utility beyond the 2 discreet instances in the past. This is so because persons in Victoria do not have human rights in the sense that they have a right to natural justice in administrative decision making. To make declarations in this [matter] about "his rights" will be read as a judicial pronouncement that persons in Victoria do in fact have human rights in the very same sense that they have a right to natural justice and other freestanding justiciable rights at law. But this would be misleading as to the operation of the law from the Charter and the judgment of the Court, as it is manifest by its orders in the declarations, should not be misleading.
My version of the [declarations] properly particularises the obligations imposed by the Charter, so as to act as a roadmap for the normative model associated with the conduct of public authorities which the Charter establishes. The test from Certain Children (No 2) which was reiterated in Minogue v Dougherty [2017] VSC 724 at [74] provides a useful roadmap for assessing incompatibility under s 38 of the Charter. However, in Certain Children (No 2) and other matters, the Court assumes that everyone knows that persons in Victoria are not directly invested with freestanding justiciable human rights, but rather, that human rights operate to impose obligations of some stringency aimed at having a normative effect on the conduct of public authorities.
The Court has found as a matter of fact and law that the defendants have acted outside their human rights obligations, so it is now perfectly justified for the Court to manifest those findings in the final judgment of the Court in the terms of the declarations. While it is trite to stay that the law is there to be read by everyone, not everyone gets it right, and there is ample evidence in matters before the Court where the Charter is not, as it is found in the enactment, properly understood and given full force and effect to by persons and Public Officers.

13 I understood Dr Minogue's primary submission to be that it would be misleading to make declarations in the form agreed to by Corrections, because that would give the wrong impression that human rights are justiciable in Victorian courts. I did not accept the premise of this submission.

14 The Charter sets out the human rights that the Parliament of Victoria specifically seeks to protect and promote. It applies to Parliament, courts and tribunals, and public authorities. Section 38(1) requires public authorities to act compatibly with human rights and, in making decisions, to give proper consideration to relevant human rights. Although the Charter does not include an independent cause of action for breach of a human right, s 39(1) of the Charter provides:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

15 Section 39(1) is not a simple provision to understand or apply, and it has been much criticised.[3] However, it is now uncontroversial that judicial review remedies are available in respect of a breach of s 38(1), in a judicial review proceeding brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[4]

16 This case demonstrates that human rights are justiciable in a judicial review proceeding. Dr Minogue has established that decisions affecting him were in breach of s 38(1) of the Charter, because they were incompatible with his human rights to privacy and to dignity in detention, protected by ss 13(a) and 22(1) of the Charter, and because the decision-maker did not give proper consideration to those rights. Corrections did not dispute that Dr Minogue could seek judicial review remedies in relation to those breaches of s 38(1), under s 39(1) of the Charter.

17 For those reasons, I did not consider it would be misleading to make declarations in the form initially proposed.

18 Dr Minogue's secondary submission was that declarations in the form agreed to by Corrections would have no utility beyond vindicating his position in relation to the breaches of his human rights on 4 September 2019 and 1 February 2020. He instead sought declarations that would 'act as a roadmap for the normative model' established by the Charter. This submission appeared to misunderstand the nature of the remedy, and the purpose for which a declaration may be made by the Court.

19 The Court's power to grant declaratory relief is 'confined by the considerations which mark out the boundaries of judicial power'.[5] For that reason, a declaration 'must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions'.[6] In other words, the Court does not give an advisory opinion in the form of a declaration. The critical difference between a declaratory judgment and an advisory opinion is that the former is based on a concrete situation, attached to specific facts, and the other is not.[7]

20 A declaration is not an appropriate means to provide a roadmap for the Charter's normative model or for future decision-making by public authorities. For that reason, I was not persuaded to make declarations in the form proposed by Dr Minogue. Declarations in the form I proposed, which was agreed to by Corrections, were made to determine the legal controversy between Corrections and Dr Minogue as to the lawfulness of the random urine test and strip search on 4 September 2019.

21 I explain separately below why I did not make declarations in relation to the two occasions on which Dr Minogue was not permitted to dress in private after being strip searched.[8]

Proceeding S ECI 2020 00798 - Minogue v Falkingham & Tosh

22 In proceeding S ECI 2020 00798 I proposed making the following declarations:

The General Manager of Barwon Prison 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 1 February 2020, in breach of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
The General Manager's direction that the plaintiff submit to a random urine test on 1 February 2020 was incompatible with his right to privacy, in s 13(a) of the Charter, and his right to be treated with humanity and 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.
The strip search of the plaintiff on 1 February 2020 ordered by the General Manager was not authorised by reg 87(1)(d) of the Corrections Regulations 2019 (Vic).
The defendant did not give proper consideration to relevant human rights in deciding to order the strip search of the plaintiff on 1 February 2020, in breach of s 38(1) of the Charter.
The strip search of the plaintiff on 1 February 2020 was incompatible with his right to privacy, in s 13(a) of the Charter, and his right to be treated with humanity and 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.

23 Again, the defendants did not object to declarations being made in that form, while Dr Minogue sought more detailed declarations, in similar terms to those sought in proceeding S ECI 2019 04631.[9] Dr Minogue put the same arguments in support of his proposed declarations in both proceedings.

24 For the reasons already given,[10] I did not consider it appropriate to make declarations in the form proposed by Dr Minogue in the second proceeding.

25 In proceeding S ECI 2019 04631, I found that the direction that Dr Minogue submit to a random urine test on 4 September 2019 was given by Colin Thompson, in his capacity as the Governor (or General Manager) of Barwon Prison by issuing Local Operating Procedure No. 3.10-1 - Urinalysis (Urinalysis Procedure).[11] The decision to order the strip search before the random urine test on 4 September 2019 was made by Mr Thompson when he approved the Urinalysis Procedure.[12]

26 The evidence was that the Urinalysis Procedure is the local policy at Barwon Prison that implements Deputy Commissioner's Instruction No 3.10 - Programs Designed to Reduce Offending Behaviour - Detection and Testing - Drug and Alcohol Use (Instruction 3.10) and Deputy Commissioner's Instruction No 1.05 - Searches and Patrols (Instruction 1.05). Mr Thompson's evidence was to the effect that he considered himself duty bound to implement Instruction 3.10 and Instruction 1.05 at Barwon Prison, and that he believed that proper consideration had been given to relevant human rights in the development of those Instructions.[13]

27 While I had no difficulty with Mr Thompson relying on the Deputy Commissioner to give proper consideration to relevant human rights when issuing a Deputy Commissioner's Instruction,[14] I found that this had not been done in relation to Instruction 3.10 and Instruction 1.05.[15] I also found that both the direction that Dr Minogue submit to a random urine test, and the decision to order him to be strip searched beforehand, were incompatible with his human rights to privacy and to dignity in detention.[16]

28 The version of Instruction 3.10 that applied on 4 September 2019 was issued by Deputy Commissioner Rod Wise on 7 September 2017.[17] The relevant version of Instruction 1.05 was issued on 17 August 2016.[18] There was no suggestion that either Instruction had been reviewed or revised in any material respect since 4 September 2019, and no updated version of either Instruction was in evidence.

29 Lisa Homatopoulos, the Manager of Corrections Victoria's Operations Directorate, exhibited to her affidavit a Charter assessment for the 2020 version of Instruction 3.10.[19] I was not satisfied that this assessment had been considered by the Acting Deputy Commissioner, because it was not signed or dated. Even if it was, it fell short of the standard of proper consideration required by s 38(1) of the Charter, for the same reasons that the 2012 assessment did not meet that standard.[20] Corrections did not suggest otherwise.

30 On that basis, it appeared to me that Mr Thompson was still bound to implement Instruction 3.10 and Instruction 1.05 at Barwon Prison, in circumstances where both Instructions had been issued without proper consideration of relevant human rights. Additionally, I had concluded that the implementation of those Instructions at Barwon Prison in relation to Dr Minogue on two occasions was incompatible with his rights to privacy and to dignity in detention. Unless there had been some relevant change to the Instructions, there was a prospect that Dr Minogue would again be required to submit to a random urine test, and accompanying strip search, in accordance with the Urinalysis Procedure.

31 It was for those reasons that I asked the parties to address in their written submissions whether injunctions should be granted:

(a) restraining the defendant from directing that the plaintiff submit to a random urine test;

(b) restraining the defendant from ordering that the plaintiff be strip searched before undertaking a random urine test; and

(c) requiring the defendant to exempt the plaintiff from random urine testing under the Urinalysis Procedure.

32 The parties were also asked to address the terms of any injunctions to that effect.

33 In their written submissions dated 5 March 2021, Corrections submitted that no injunctions were warranted and that orders in the terms foreshadowed should not be made. They argued that there was no reason to think that they would do anything other than abide by the declarations to be pronounced, and fulfil their public duties according to law.[21] Their submission continued:

The Court's findings fall far short of providing a factual foundation for injunctive orders of the contemplated breadth - orders that would prevent lawful action by the defendants in the future. That is because the Court's findings relate solely to:

(1) the random urine testing and strip searching that occurred on 4 September 2019 and 1 February 2020;

(2) the manner in which those tests were imposed and the considerations that were given to Dr Minogue's human rights at the time the decision was made; and

(3) the absence of an objective basis for the General Manager's beliefs about random urine testing and associated strip searching at the time the decision was made.[22]

The Court should take care to ensure that any injunctive relief aligns with the specific facts and circumstances that were established at trial. Any injunction granted must "appropriately reflect the judicial determination of the controversy which led to the proceeding".[23]
The Court's findings were made on the evidence that was before it relating to a drug testing regime at a point in time. The Court did not find that it could never be lawful to require the plaintiff to submit to a random urine test or to submit to a strip search before undertaking a random urine test - whatever the form of any future urine testing or strip searching regime and whatever the plaintiff's circumstances at the time. Put simply, the injunctions that are contemplated by the Court would prevent the defendants from adapting their processes, in light of the Court's findings and declarations, to subject Dr Minogue to a lawful random urinalysis testing regime, if that were possible.
Whilst injunctive relief is discretionary, the Courts have been traditionally reluctant to grant such relief in circumstances where the breadth of the order would prevent the defendant from acting lawfully in the future. ...

34 Corrections referred me to several authorities to the effect that a final injunction should go no further than is necessary to prevent a specific wrong that the defendant is likely to repeat or continue.[24] They submitted that the Court should exercise caution in this case, 'where it is far from clear that any exercise of power that may be caught by the proposed injunctions would be invalid'.

35 In light of those submissions, I gave consideration to how the injunctions might be framed to relate to the specific facts of this case, on the basis that the Deputy Commissioner might review the Instructions, and give proper consideration to relevant human rights before re-issuing them in revised form. I had regard to the form of an injunction ordered in Certain Children v Minister for Families and Children (No 2),[25] to restrain the use of oleoresin capsicum spray in a youth justice centre unless the Secretary to the Department of Justice and Regulation had first certified in writing amended guidelines for its use, following proper consideration of the human rights of all detainees.

36 The parties were then asked to consider and address their submissions to proposed injunctions in the following form:

The defendant is restrained from directing that the plaintiff submit to a random urine test unless and until:

(a) the Deputy Commissioner, Operations of Corrections Victoria 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 right to privacy, in s 13(a) of the Charter, and right to be treated with humanity and respect for the inherent dignity of the human person, in s 22(1) of the Charter, 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.

The 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 right to privacy, in s 13(a) of the Charter, and right to be treated with humanity and respect for the inherent dignity of the human person, in s 22(1) of the Charter, 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.

37 Dr Minogue supported injunctions being ordered in that form.

38 Corrections maintained their position that injunctive relief was not warranted, for three reasons:

(a) First, they said that there was no evidence to suggest that Mr Thompson, and the executive government more broadly, would not abide by the declarations. Although the declarations will relate to past conduct, they will have a normative effect for the future. There was therefore no reason to think that Mr Thompson would do anything other than act in accordance with the law as pronounced in the Court's reasons for judgment and the declarations to be made.

(b) Second, they argued that, in circumstances where there was no threat of future unlawful conduct, there was nothing to be gained by adding contempt proceedings to the remedies already available for breach of the law.

(c) Third, and most importantly, they submitted that the proposed injunctions would have the effect of limiting potentially lawful conduct.

39 I was not persuaded by those arguments, for the following reasons.

40 It was significant that the random urine test and strip search of Dr Minogue on 4 September 2019 took place in accordance with entrenched policies and procedures, which the evidence indicated have applied at Barwon Prison in similar form since the 1990s. Although these policies and procedures were reviewed following the commencement of the Charter in 2008, Corrections did not demonstrate that the reviews gave proper consideration to relevant human rights. Application of the policies and procedures to Dr Minogue resulted in breaches of his human rights on 4 September 2019, and again on 1 February 2020. These were serious findings to have made against a public authority. I considered that the culpability of Corrections' failure to observe the law could not be lightly dismissed, and that there was a strong case for injunctive relief to prevent future breaches.[26]

41 As discussed, the evidence was that Mr Thompson is obliged to implement Instruction 3.10 and Instruction 1.05. Their implementation at Barwon Prison resulted in breaches of Dr Minogue's human rights on two occasions. There was no evidence to suggest that either Instruction had been reviewed or modified, either before or in light of my judgment, or that a fresh Charter assessment had been undertaken. Nor was there any submission to that effect.[27]

42 Corrections submitted at trial that 'prisons are highly hierarchical and are governed by layers of policy through which the various levels of the correctional hierarchy exercise control'.[28] They characterised the relevant exercises of power by Mr Thompson as the implementation of policies adopted at a higher level of the command structure:[29]

In this case, whilst the Governor made a decision about how to exercise the relevant powers through [Local Operating Procedures (LOPs)], the relevant LOPs must implement (at the local level) the decisions made by the Commissioner through the [Commissioner's Requirements] and the decisions made by the Deputy Commissioner through the [Deputy Commissioner's Instructions]. That is wholly appropriate given the necessarily hierarchical nature of prisons and the command structure that is in place within Corrections Victoria. Whilst the provisions refer to the Governor (i.e. the General Manager), decisions can be made by that position holder's superiors where the matter involves high policy that is apt to be made at that higher level.

43 I accepted this, and also accepted that a local manager such as Mr Thompson could rely on a superior such as the Deputy Commissioner to give proper consideration to relevant human rights.[30] However, I found that had not occurred in the case of Instruction 3.10 and Instruction 1.05. On the evidence before me, I considered it entirely possible that the Instructions would continue to be implemented at Barwon Prison without change. There was no evidence, or even suggestion, that there had been any relevant change, leaving Mr Thompson in an invidious position. I therefore considered it appropriate to restrain Mr Thompson from directing Dr Minogue to submit to a random urine test, and the associated strip search, unless and until the Deputy Commissioner has reviewed, revised and reissued the Instructions, having given proper consideration to relevant human rights and being satisfied that any limitations on the rights to privacy and dignity in detention were justified in accordance with s 7(2) of the Charter.

44 The injunctions are directed to random urine testing of Dr Minogue, and strip searching before a random urine test, in accordance with Instruction 3.10, Instruction 1.05 and the Urinalysis Procedure. They do not otherwise restrain Mr Thompson from exercising his power under s 29A of the Corrections Act to direct Dr Minogue to submit to a drug or alcohol test. The injunctions would not prevent targeted testing of Dr Minogue, in the event that there is reason to suspect that he is using illicit drugs. Nor would they prevent Mr Thompson from ordering a strip search of Dr Minogue, if Mr Thompson believed on reasonable grounds that was necessary for one of the reasons specified in reg 87 of the Corrections Regulations.

45 Although Corrections submitted that the proposed injunctions would limit Mr Thompson's discretion to do things differently in future, and the ways in which Corrections might adapt their processes, they did not put forward any alternative wording for my consideration. They did not suggest that the proposed injunctions were too wide, ambiguous, or uncertain, or that they did not 'know precisely what may or may not be done'.[31] The submission was, ultimately, that the vice was in the nature of the relief rather than its precise terms.[32] That submission went against the tide of the evidence about Corrections' policy hierarchy, in circumstances where I had no basis to conclude that anything had changed.

Conduct of strip searches on 4 September 2019 and 18 February 2020

46 Regulation 86(2)(e) of the Corrections Regulations provides that prison officers conducting a strip search of a prisoner must ensure that the prisoner is allowed to dress in private immediately after the strip search is finished. The evidence of Dr Minogue was that, after he was strip searched before his random urine test on 4 September 2019, he was not allowed to dress in private.

47 On 6 January 2020, Colin Thompson wrote to Dr Minogue in relation to that strip search, as follows:[33]

I would like to apologise for the way the ... strip search was conducted and acknowledge that the designated room did not allow the officers to meet the requirements as outlined in the Corrections Regulations 2019. Further I would like to thank you for bringing this to my attention as amendments have been made to ensure that Barwon Prison staff are now able to meet the requirements as stipulated in the Corrections Regulations 2019.

Process changes have been implemented to ensure that prisoners are able to re-dress in privacy immediately following a strip search as part of the urinalysis testing process as per the Corrections Regulations 2019 (reg 86(2)(e)).

48 Notwithstanding that apology and assurance, on 18 February 2020, when Dr Minogue was strip searched following the contact visit from his lawyer, he was again not allowed to dress in private. His uncontradicted evidence was that two prison officers stood and stared at him while he dressed.[34]

49 I found that, on both occasions, Dr Minogue was not allowed to dress in private.[35] However, I did not propose to make any declaration to that effect in proceeding S ECI 2019 04631, and proposed to dismiss proceeding S ECI 2020 00822 on the basis that no issue had been determined in Dr Minogue's favour in that proceeding.[36]

50 Dr Minogue submitted that there was a slip between those two parts of my judgment, and sought declarations in both proceedings to the effect that the strip searches on 4 September 2019 and 18 February 2020 did not comply with the mandatory requirement of reg 86(2)(e), that a prisoner must be allowed to dress in private after a strip search.

51 There was no slip. These are judicial review proceedings, concerning the lawfulness of the directions that Dr Minogue submit to a random urine test on 4 September 2019 and 1 February 2020, and decisions to order strip searches of him 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. The issues for determination, as Dr Minogue agreed before trial,[37] were set out at [6] of my judgment. They did not include whether the officers who conducted the strip searches did so in accordance with the Corrections Regulations.

52 It is a matter of concern that, despite Mr Thompson's apology of 6 January 2020, and the steps he took to ensure future compliance with reg 86(2)(e), Dr Minogue was watched by two prison officers as he dressed after the strip search on 18 February 2020. However, the remedies available in these proceedings are confined to the decisions under review; they do not extend to remedies for apparent breaches of reg 86(2)(e) by prison officers who were not parties to any of the proceedings.

53 In the covering email that accompanied the judgment, my associate conveyed to the parties my inclination to make no order as to costs in all three proceedings. That inclination was informed by the considerations that all three proceedings were heard together, that Dr Minogue represented himself, and that he succeeded in two of the three proceedings. Any party who sought a different order as to costs was asked to include in its written submissions the costs order sought, and the reasons why it should be made.

54 No party sought a different costs order. The proposed orders submitted by both sides in all three proceedings included an order that there be no order as to costs.

[1] Minogue v Thompson [2021] VSC 56 (Reasons).

[2] Relying on Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197; (2015) 48 VR 129, [235] (Tate JA).

[3] See, for example, Jeremy Gans, 'The Charter's Irremediable Remedies Provision' [2009] MelbULawRw 4; (2009) 33(1) Melbourne University Law Review 105; Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559, [214] (Weinberg JA); Michael Brett-Young, From Commitment to Culture - The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, 119-124.

[4] See, for example, Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; (2017) 52 VR 441, [543]-[550] (Certain Children (No 2)) and Haigh v Ryan [2018] VSC 474, [100].

[5] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[6] Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[7] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, [48] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[8] See [45]-[51] below.

[10] See [13]-[20] above.

[11] Reasons, [26]-[29], [55]-[56].

[13] Reasons, [12], [42], [56], [59]-[60].

[15] Reasons, [66]-[70], [76]-[79].

[16] Reasons, [86]-[89], [139]-[144].

[19] S ECI 2019 04631 - Affidavit of Lisa Homatopoulos dated 13 July 2020, [9], Exhibit LH-3. The evidence did not include the 2020 version of Instruction 3.10 that was the subject of this Charter assessment.

[21] Relying on Coolwell v Chief Executive, Department of Justice and Attorney-General [2015] QSC 213, [51]-[52]. These paragraphs concerned an order in the nature of mandamus that the first respondent make a parole order in favour of the applicant.

[23] Citing Symbion Pharmacy Services Pty Ltd v Idameneo (No 789) Ltd (No 2) [2011] FCA 531, [3] (Jessup J); see also Commodore Business Machines Pty Ltd v Trade Practices Commission [1990] FCA 77; (1990) 92 ALR 563, 575 (Gummow, Foster and Hill JJ).

[24] Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, 264 (Lord Keith); Coflexip S.A. v Stolt Comex Seaway MS Ltd & ors [1999] 2 All ER 593; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1, 18 (Sheppard J).

[26] Certain Children (No 2), [582].

[27] Transcript, 16 April 2021, 26:21-30.

[28] Submissions on behalf of the defendants dated 27 July 2020, [37](2).

[29] Submissions on behalf of the defendants dated 27 July 2020, [39].

[31] Optus Networks Pty Ltd v City of Boroondara (1997) 2 VR 318, 336 (Charles JA).

[32] Transcript, 16 April 2021, 35:2-4.

[33] S ECI 2019 04631 - Affidavit of Colin Thompson dated 15 July 2020, Exhibit CT-19.

[34] S ECI 2020 00822 - Further affidavit of Craig Minogue dated 19 February 2020, [17]. See also Transcript, 30 October 2020, 69:7-70:4.

[37] In a letter to the Victorian Government Solicitor's Office dated 26 October 2020, Dr Minogue said he had received the list of issues for determination proposed by the Court and was in full agreement with the matters listed.

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