Thompson v Minogue [2021] VSCA 358

Thompson v Minogue [2021] VSCA 358 - VSCA 2021 case summary — Zoe

[68]

86 Strip 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

(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.

...

87 When 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.

...

88 Random 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.

[145]

THE COURT DECLARES THAT:

1 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].

2 The 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.

3 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).

4 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.

5 The 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:

1 The 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.

2 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 [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.

[148]

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.

[161]

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.

...

Drug testing aims to deter prisoners from using drugs by monitoring for the use of both illegal and prescription drugs. Currently, several drug-testing programs, based on the analysis of urine specimens, operate in Victorian prisons. These include:

random general testing: involving random testing of a proportion of the prisoner population each week

targeted testing: focused on prisoners who are suspected of drug use

random Identified Drug User (IDU) testing: involving more frequent testing each week of five per cent of those prisoners who have been identified as engaging in drug-related behaviours

Drug-Free Incentive Program (DFIP) testing: involving even more frequent testing of prisoners who consent to participate in the program.

[166]

Prior to the collection of urine, the prisoner must submit to a strip search to ensure that no urine substitution or means of adulteration are secreted on their body or clothing. For prisoners that identify as Trans, Gender Diverse or Intersex, the guidelines set out in Commissioner's Requirement 2.4.1 must be followed. If the prisoner refuses to be strip searched, it will be defined on PIMS as Refusal to Supply a Urine Sample and documented within the Prisoner Urine Sample book. No urine sample is to be taken.

Following the completion of the strip search, the prisoner will be permitted to redress and is required to wash their hands (where such facilities are available).

Gloves must be worn at all times by the officers during the sample collection. Prisoners are to be given the option to wear gloves or wash hands thoroughly prior to giving a sample. Only approved containers can be used for the collection of urine samples.

Prisoners will be taken to the designated location for urine collection (if applicable) and collection officers will reinforce to the prisoner:

The procedures for taking a urine sample

That he or she is required to give a sample in one continuous stream, of at least 40 mls of urine, which will be decanted into approved containers of at least 20 mls each. (In the case of a female prisoner the sample may be collected in a larger container that complies with section 4.1 of the Australian Food Contact Standard AS2070 - 1999 and then decanted into the sterile jars)

That he or she is required to give the sample in the officers' presence. (The officer who is collecting or witnessing the collection of a urine sample should, wherever possible, be of the same sex as the prisoner providing the sample)

That if at any time during the testing process the prisoner may need to defecate, he/she will be taken to a secure location within the prison to do so and that no additional time (to produce a urine sample) will be added to the overall process. This will NOT take place under direct officer supervision and the prisoner will NOT have in their possession the specimen container. The prisoner will also be required to undertake another strip search when returned to the urine collection area

The consequences of refusing to give a sample, of deliberate adulteration or substitution of the sample

That she or he will be notified in writing of the results of the test by the General Manager or delegate

That the initial sample will be taken for testing and if the result is positive, the prisoner may request that the verification sample be tested at the prisoner's expense. If the verification sample does not confirm the positive result the prisoner will be reimbursed any costs

The need to complete a Prisoner's Urine Sample form

[196]

All prisons are required to complete a Charter assessment if the Local Operating Procedure or manual differs from the Commissioner's Requirements or Deputy Commissioner's Instructions. When I approved the [versions of the Urinalysis Procedure dated 18 September 2019 and 28 January 2020 and the Search Procedure dated 4 July 2019 and 28 January 2020] I was aware that [DJCS] and Ms Homatopoulos had conducted an assessment of the Charter implications of the relevant Commissioner's Requirements and Deputy Commissioner's Instructions and that the Department's Human Rights Unit had been involved in the development of the original policies. Because I knew that the Commissioner's Requirements and Deputy Commissioner's Instructions were made following a process that was intended to involve proper consideration of the impact on the human rights of prisoners for the purposes of s 38(1) of the Charter, I was careful to ensure that [those versions of the Urinalysis and Search Procedures] were consistent with those policy documents. I also know, and have known for many years, that the process of urinalysis testing and strip searching engage a prisoner's rights to privacy and to humane treatment while deprived of liberty and that they must be performed with care in order to ensure they do not disproportionately limit those rights. That is why the Local Operating Procedures implement processes that as much as possible respect the dignity of prisoners, including their right to privacy and humane treatment, whilst providing testing and strip searching regimes that are effective and not subject to corruption ... On that basis, I was satisfied that the Local Operating Procedures were designed in a way that limited those rights as little as possible while maintaining the integrity of the urine testing and strip searching regimes, which I considered essential for the reasons already explained.

The urinalysis policies allow for the normal procedure to be adapted if there is a compelling reason, including a prisoner possessing attributes that mean their human rights would be particularly affected by testing. For example, prisoners who are unable to provide a urine sample under supervision should be given the opportunity to provide the sample in private. Transgender, gender diverse and intersex prisoners are, where possible, given the opportunity to nominate the gender of the supervising prison officer. Muslim prisoners should be allowed to provide urine samples after sunset during Ramadan.

...

In addition, prison officers are required to consider the individual circumstances of the prisoner and exercise discretion and concern for human rights when implementing the policies. Whilst prison officers have discretion about how they implement a policy they do not have discretion to exempt any particular prisoner from a policy such as random testing altogether because that would undermine the efficacy of the random testing process. Having said that, a prisoner can refuse to be tested under these random testing procedures and is not forced to be tested, but this results in the same disciplinary consequences as for a prisoner who tests positive.

...

I accept that urinalysis testing (including the necessary strip search) engages [Dr Minogue's] human rights. As the affidavit from Ms Homatopoulos demonstrates, those rights have been considered in the development of the relevant Commissioner's Requirements and Deputy Commissioner's Instructions. Further, as I set out above, when I approved the Local Operating Procedures ... I well understood that we needed a process that was the least restrictive on prisoners' rights whilst also being effective at reducing the scourge of drugs at Barwon Prison.

[229]

In my view, the standard of proper consideration required of the Deputy Commissioner in deciding to issue Instruction 3.10 is at the more exacting end of the spectrum. Instruction 3.10 affects every prisoner in every prison managed by Corrections [Victoria], a large and diverse group of human beings. It is at the apex of the policy hierarchy that implements [the] long‑standing [Corrections] Drug Strategy, and has been in place in substantially the same form since at least 2012. It was issued by a Deputy Commissioner ..., who had time to consider its human rights impacts, and opportunities to consult and obtain advice. General Managers such as Mr Thompson, who must implement Instruction 3.10 in their prisons, should be able to rely on the Deputy Commissioner having undertaken a thorough human rights assessment before issuing the instruction.

I am not satisfied that Mr Wise gave proper consideration to the human rights of prisoners who would be subjected to drug and alcohol testing by urinalysis in accordance with Instruction 3.10. While I accept that he relied on the [Instruction 3.10 Charter Assessment], it can only be described as cursory. It merely recognised, in general terms, that taking urine samples from prisoners could be 'degrading', and justified that impact by the countervailing consideration that testing is a key strategy in protecting prisoners from drug‑related harms. There was no examination of the nature and extent of the 'degrading' impact of urine testing, and no evaluation of the effectiveness of the random testing regime. Nor was there any consideration of less restrictive means available to achieve the objectives of the [Corrections Drug] Strategy, such as less intrusive testing methods or less frequent random testing.

Further, the [Instruction 3.10 Charter Assessment] was limited to whether prisoners should be subjected to drug and alcohol testing, including random general testing, by taking urine samples. It did not engage with the human rights impacts of the instructions about how the testing is to be carried out. For example, Instruction 3.10 included directions that prisoners must be strip searched before providing a urine sample, and must produce the sample in the presence of two prison officers. It is obvious that these features of the testing process might intrude on a prisoner's privacy and dignity. However, no attention was given in the ... assessment to these intrusions, or whether they are necessary to achieve effective random testing.

In this case, proper consideration of relevant human rights required a more thorough consideration of the human rights impacts of mandatory random general urine testing than appears in the [Instruction 3.10 Charter Assessment]. The ... assessment compares poorly with the detailed consideration given to relevant human rights by the Victorian Institute of Forensic Mental Health, before the Smoke Free Policy was introduced at Thomas Embling Hospital in 2015. This is not a case in which the brevity of the assessment is explained by lack of time, resources, seniority, or expertise.

I am less concerned that the [Instruction 3.10 Charter Assessment] did not identify the s 13(a) right to privacy and the dignity right in s 22(1) as rights engaged by Instruction 3.10. A decision-maker need not identify the 'correct' rights in order to give proper consideration to the human rights impacts of a decision. In this case, it was sufficient that the ... assessment identified the s 10 protection against torture and cruel, inhuman and degrading treatment as a relevant human right. There is an overlap between the protection given by s 10 and the dignity right, and there is also a relationship between s 10 and the right to privacy. What was lacking was a genuine consideration of how the human rights of prisoners might be affected in practical terms by Instruction 3.10, and whether this was reasonable and demonstrably justifiable in terms of s 7(2).[73]

[330]

I do not consider that [the applicants have] discharged [their] burden of justifying [the] limits on Dr Minogue's [privacy and dignity] rights [by the random urine tests and strip searches] for the following reasons:

(a) I am satisfied that the direction that Dr Minogue submit to random general testing in accordance with the Urinalysis Procedure was authorised under s 29A of the Corrections Act - and hence was 'under law' for the purposes of s 7(2).

(b) However, that conclusion was based on Mr Thompson's evidence that he believed that maintaining random urine testing was necessary for the security and good order of the prison. The grounds for this belief were not cogent or persuasive. According to his affidavit, Mr Thompson's belief was based on unspecified 'conversations with prisoners and prison officers over the years' to the effect that prisoners are often deterred from taking drugs because of the risk of detection in a random test, and associated disciplinary consequences, and the fact that he was not aware of any effective alternative. While I accept that Mr Thompson is a very experienced prison administrator, anecdotal evidence is an insufficient basis on which to limit human rights. [The Corrections] Drug Strategy has been in place since at least 2002, and should now be informed by data and rigorous evaluation of the effectiveness of its various components - none of which was in evidence.

(c) As to the nature of the rights limited by random urine testing, what must be justified is an interference with Dr Minogue's privacy, and a limitation of his right to be treated humanely and with dignity while detained. Both are important rights. I consider it significant that the dignity right in s 22(1) recognises the vulnerability of people who have been deprived of their liberty.

(d) The purpose of the limitation is to achieve the objectives of the [Corrections Drug] Strategy, in particular to reduce alcohol and drug use and related harms among the prison population. It also implements the Guidelines, which provide that:

Prison systems should have a comprehensive and integrated drug strategy that seeks to prevent the supply of drugs into prison, reduce the demand for drugs and minimise the harm arising from drug use in prisons through education, treatment and enforcement.

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. 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.

(f) Although [the applicants] 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 [the applicants regard] random urine testing of 5% of the entire prison population each month to be a key component of [the Corrections] Drug Strategy. The [Corrections] 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 [the Corrections] Regulations, the evidence did not explain why these are not considered effective alternatives to random urine testing. Indeed, there was no evidence that [the applicants] had considered alternative, less intrusive measures available to achieve the objectives of the [Corrections Drug] Strategy and to implement the Guidelines. Contrary to [the applicants'] 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 and in many workplaces. This is done using testing procedures other than urinalysis, and without strip searching every person tested. I do not accept [the applicants'] 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. 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 ... Instruction 3.10 [Charter Assessment] fell short of proper consideration of relevant rights.

(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'. Nor did it establish that the interference with his privacy was proportionate to its purpose.

As a result, I find that the direction given in the Urinalysis Procedure that required Dr Minogue submit to random urine tests on 4 September 2019 and 1 February 2020 was incompatible with his [privacy] right ... and with his [dignity] right ... It follows that, in giving the direction, Mr Thompson acted in a way that was incompatible with those human rights, contrary to s 38(1) of the Charter.[102]

[364]

5.1 Operating Principles for all Strip Searches

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 ... 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 [of] 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 Intersex.

...

5.3 Prisoners

5.3.1 Prisoners will generally be strip searched:

When leaving or returning to a prison ...;

prior to and on completion of contact visits;

prior to a urinalysis test;

...

at any other time deemed necessary by the General Manager, in order to maintain the good order or safety of the prison.

...

5.3.3 Where the equipment exists to undertake a low-dose x-ray body scan, such a scan may be substituted for a strip search where practical and appropriate to do so.

...

5.9 Refusal by a Prisoner to Submit to an Authorised Search

5.9.1 A prisoner who refuses to submit to or co-operate with procedures for a search may be charged with a prison offence.

5.9.2 Where it is necessary in the interests of prison security or good order to conduct a search, and the prisoner refuses to co-operate with the conduct of the search, it may be necessary to use force to carry out the procedure. Under these circumstances only the minimum necessary force may be used, and only after all other avenues of securing the prisoner's co-operation have failed.

[388]

A prison officer may not conduct a strip search of a prisoner unless authorised by the General Manager or an officer delegated by the General Manager.

A suitable search room should be made available where the prisoner is afforded privacy from the view of others not involved in conducting the search.

The search will be conducted in an effective and professional manner, with regard to the privacy and self respect of the prisoner searched, and avoiding any unnecessary force, embarrassment or indignity. Searches of prisoners are not to include body cavity searches.

At least two officers will conduct the search and, unless exceptional circumstances exist the officers will be of the same sex as the prisoner. Officers will present a professional and objective attitude towards their duties, and observe the following procedures:

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;

...

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; ...

[418]

The ... Instruction 1.05 [Charter Assessment] was more detailed than the ... Instruction 3.10 [Charter Assessment], and identified both the s 13(a) right to privacy and the dignity right in s 22(1) as relevant rights. However, I cannot find that it properly considered the instruction that male prisoners should be strip searched before a random urine test.

I have no difficulty with [the applicants'] approach of assessing organisation‑wide policies and procedures for compatibility with human rights at a senior level, so that local managers with responsibility for implementing those policies and procedures can assume that proper consideration has been given to relevant rights. The approach permits an unhurried and thorough assessment of the human rights implications of a policy or procedure, with the opportunity to consult and obtain advice. As discussed, this has the consequence that the standard of proper consideration for such an assessment is at the more exacting end of the spectrum. The ... Instruction 1.05 [Charter Assessment] concerned the human rights of every prisoner in every public prison in Victoria, as well as visitors, prison staff, and contractors. In that context, proper consideration called for a genuine engagement with the ways in which their rights may be limited by the searches provided for in Instruction 1.05, and whether those limits were justifiable in accordance with s 7(2).

The assessment was impaired by an incorrect statement of the effect of Instruction 1.05. In relation to the right to privacy, the assessment stated that 'the level of intrusiveness of search procedures should be related to the probability of detecting drugs'. This statement was inaccurate, given that Instruction 1.05 provides that strip searches will normally be conducted on prisoners prior to any urinalysis test, including random tests. Based on the assessment, there is no sign the Deputy Commissioner seriously turned his mind to the human rights impact of a policy of mandatory strip searching of male prisoners before a random urine test, irrespective of the likelihood of detecting drugs.

Further, the [Instruction 1.05 Charter Assessment] simply did not engage with the question whether mandatory strip searching before a random urine test is a justifiable limitation of human rights. It rather begged that question, asserting that the limitation was justified under the Corrections Act and the Corrections Regulations. The evidence in this case did not demonstrate that to [be] so, as discussed later in this judgment. Even if it had, the requirement that a limit be 'under law' is only one aspect of justification under s 7(2). Identifying the legal basis for the limit did not obviate the need to consider the other matters relevant to justification, set out in s 7(2). Here, those matters included whether there were less restrictive means reasonably available to maintain the integrity of random urine testing. There is no sign that any alternative was considered, even though Instruction 1.05 itself provided for more targeted, less intrusive searching of female prisoners. There was also no consideration of the purpose of the limitation, or the relationship between the limitation and its purpose.[124]

[442]

The effect of reg 87 is to impose some additional requirements in relation to strip searches of prisoners. While the general search power in s 45 may be exercised 'for the security or good order of the prison or the prisoners', reg 87 provides that a Governor may order a prison officer to conduct a strip search of a prisoner where the Governor believes on reasonable grounds that the search is necessary for the security or good order of the prison. It is a precondition to the exercise of the powers in reg 87 that the Governor:

(a) believes that the strip search is necessary for the security or good order of the prison or, in the case of reg 87, for the safety or welfare of any prisoner; and

(b) has reasonable grounds for that belief.

Belief is an 'inclination of the mind towards assenting to, rather than rejecting' a state of affairs. A requirement that there must be 'reasonable grounds' for a belief entails the existence of facts sufficient to induce that state of mind in a reasonable person.

The relevant state of affairs under reg 87 is that a strip search is 'necessary' for the security or good order of the prison. This means that there must be reasonable grounds for the belief that the strip search is essential or indispensable to that end, as distinct from being merely expedient or convenient.

...

In my view, [Mr Thompson's] evidence fell short of establishing reasonable grounds for a belief that it is necessary for the security or good order of the prison to strip search every prisoner selected for random urine testing. I did not reach this view lightly, being mindful of Mr Thompson's experience and expertise as a prison manager. However, Mr Thompson did not explain why, in his experience, the following features of the Urinalysis Procedure are not effective to ensure that a prisoner does not have an opportunity to adulterate or switch a urine sample:

(a) The Urinalysis Procedure is designed to eliminate the predictability of random general urinalysis within Barwon Prison. With 1.25% of the prison population subjected to random general testing each week, on average a prisoner could expect to be selected perhaps once a year.

(b) Prison officers are directed to ensure that under no circumstances are prisoners to receive advance notice of a requirement to be tested.

(c) A prisoner is required, subject to limited exceptions, to produce the urine sample in view of two prison officers.

(d) It is a prison offence to interfere with, contaminate, or substitute a sample.

(e) Test results include whether a sample has been interfered with or adulterated.

I do not consider that Mr Thompson established a reasonable basis for his belief that a prisoner randomly selected for testing might be 'hiding on his body or in his clothing any substitute urine or means of adulterating the sample'. Given that the requirement to provide a urine sample for testing is random and infrequent, that it takes place without warning and under the supervision of prison officers, and that adulteration and interference is detectable and has disciplinary consequences, I do not understand why Mr Thompson considers it necessary to take the additional measure of strip searching every prisoner before every test.

Further, there was evidence that directly contradicted Mr Thompson's belief that the only effective way to ensure that urine samples are not altered is to strip search each prisoner before providing a urine sample. It is notable that the [Strip Search Requirement] and Instruction 1.05 do not require a full strip search of female prisoners before a random urine test: female prisoners need only bend over at the waist and part the cheeks of their buttocks during a targeted strip search.

Ms Homatopoulos explained that, between 2003 and 2006, there was a pilot program at the Dame Phyllis Frost Centre (DPFC) to investigate whether strip search procedures could be adapted to be more sensitive to the needs of women, without compromising the good order and security of the prison. As a result of that trial, strip searches at DPFC are now targeted, use less intrusive methods, and require prior authorisation of an Operations Manager or Supervisor. Ms Homatopoulos said that the trial had been undertaken in recognition of the fact that many female prisoners have been victims of physical and sexual assault, so that strip searching was likely to have a greater impact on female prisoners. She did not explain why this approach was confined to female prisoners, when male prisoners may also have suffered significant trauma in their lives.

The limited evidence in this proceeding indicated that the more targeted, less intrusive approach to strip searching at DPFC has not compromised the integrity of random urine testing at that prison. Mr Thompson exhibited to his affidavit a copy of the Drugs in Victorian Prisons Report dated March 2020. The comparison between Barwon Prison and DPFC is informative. The figures in the table below are totals for the period July 2019 to March 2020.

[456]

[The applicants] accepted that strip searching engaged both the right to privacy in s 13(a) and the s 22(1) dignity right. However, [they] argued that the strip searches of Dr Minogue did not limit his right to privacy because the interference with his privacy was both lawful and not arbitrary. [They] further argued that the strip searches did not limit Dr Minogue's [dignity] right ..., because they were carried out for a legitimate purpose.

This submission had an air of unreality to it. I am in no doubt that being strip searched is inherently demeaning, despite being a routine part of prison life. While strip searching may be less demeaning if it is done for an identified reason and in accordance with standard procedure, it still limits the [dignity] right of a prisoner ... The strip searches of Dr Minogue could only be compatible with that right if they were 'under law' and demonstrably justified in accordance with s 7(2).

The right to privacy in s 13(a) is only limited by an interference with privacy that is unlawful or arbitrary, in the sense of proportionate to a legitimate aim. These are the same questions that arise for determination in relation to justification under s 7(2).

I have found that the strip searches of Dr Minogue before his urine tests on 4 September 2019 and 1 February 2020 were not authorised under reg 87(1)(d) of the Corrections Regulations, because Mr Thompson did not have reasonable grounds to believe that it was necessary for the security or good order of Barwon Prison that every prisoner be strip searched before a random urine test. It follows that these interferences with his privacy were not lawful, and limited his right to privacy. It also follows that the strip searches were not 'under law' for the purposes of s 7(2).

Further, the evidence relied on by [the applicants] did not meet the stringent standard of justification, having regard to the matters set out in s 7(2):

(a) The rights that are limited by strip searching are important human rights. In a prison context, the dignity right in s 22(1) assumes particular importance.

(b) The purpose of the limitation is to maintain the integrity of random testing for drugs and alcohol in public prisons, which is a key component of [the applicants'] strategy for reducing alcohol and drug related harms in the prison population. The purpose is unquestionably important.

(c) The nature and extent of the limitation is as I have described. Strip searching is a dehumanising procedure.

(d) The only evidence of the relationship between the limitation and its purpose was Mr Thompson's belief that the only effective way of ensuring that a prisoner cannot substitute or adulterate a urine sample is to conduct a strip search of the prisoner before they give the sample. As discussed, the evidence did not establish a reasonable basis for that belief. To the contrary, the evidence is that a more targeted, less intrusive strip searching regime at DPFC has not undermined the effectiveness of random testing at that prison. In addition, the evidence did not establish the effectiveness of [the applicants'] longstanding strategy of randomly testing ... 5% of all prisoners each month.

(e) There is a less restrictive alternative to a full strip search of every prisoner before a random urine test, in place at DPFC. There was no evidence that this alternative had been considered or tried at Barwon, or that it was not reasonably available.

(f) The human rights impacts of strip searching before random urine testing were not properly considered. The standing order that every prisoner at Barwon must be strip searched before a random general test was not the result of a thorough and well-reasoned human rights analysis.

While I accept without hesitation the importance of the purpose for which the strip searches were conducted, the evidence did not demonstrate that they were necessary or even conducive to achieving that purpose. In light of evidence that a less intrusive search regime is in place at another maximum security prison, I could not be satisfied that the indignity of a routine strip search before a random urine test is justified or proportionate.

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]

At a glance

Court

Decision date

Source

Judgment (629 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)