In Minogue v Thompson [2021] VSC 56 Richards J states
1 In 1988, Craig Minogue was sentenced by this Court to a term of life imprisonment, with a non-parole period of 28 years. In 2018, the Corrections Act 1986 (Vic) was amended so that Dr Minogue may be granted parole only if he is in imminent danger of dying or is seriously incapacitated. He is currently serving his sentence in Barwon Prison.
2 On 4 September 2019, Dr Minogue was required to undergo a random alcohol and drug test. This involved providing a urine sample, after being strip searched. Dr Minogue queried the lawfulness of this requirement, and asked the General Manager of Barwon Prison, Colin Thompson, why it was considered necessary that he submit to this process. Mr Thompson responded that it was a random general test, to which 5% of the total prisoner population is required to submit each month, irrespective of placement or history of use. He explained that the strip search was a standard security measure.
3 Dr Minogue was next required to undergo a random drug test on 1 February 2020. Again, he queried the lawfulness of the requirement. He was advised that Tracy Tosh, who was the Acting Operations Manager, had decided that if he did not provide a urine sample there would be disciplinary consequences. Under protest, Dr Minogue submitted to the strip search and produced a urine sample.
4 On 4 February 2020, Dr Minogue received a visit from his lawyer. He was directed to submit to a strip search, consistent with a policy that all prisoners be strip searched before a visit with any external visitor. Dr Minogue queried the lawfulness of this blanket policy, and refused to be strip searched. The Acting General Manager, Mark Thompson, spoke with Dr Minogue and confirmed that he could not have a contact visit unless he first submitted to a strip search, as required by prison policy and procedure. Dr Minogue opted instead for a box visit with his lawyer. A fortnight later, Dr Minogue received another visit from his lawyer, and again was told that he would be strip searched. On this occasion, albeit under protest, he submitted to strip searches before and after the visit.
5 These three judicial review proceedings are challenges brought by Dr Minogue to the lawfulness of these directions that he submit to random drug tests and to strip searches. Dr Minogue contends that the drug tests and the strip searches were not authorised by the Corrections Act, and were also unlawful under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The defendants — who I will refer to collectively as Corrections — maintain that the policies that require random drug testing and strip searching of all prisoners are supported by the Corrections Act, were adopted after proper consideration had been given to relevant human rights, and are compatible with Dr Minogue’s human rights.
6 The proceedings were heard together on 30 October 2020, and presented the following issues for determination:
In relation to the directions that Dr Minogue submit to a urine test on 4 September 2019 and on 1 February 2020:
(1) Were the directions authorised by s 29A of the Corrections Act?
(2) Was proper consideration given to relevant human rights in making the directions, for the purposes of s 38(1) of the Charter?
(3) Were the directions incompatible with Dr Minogue’s human rights in ss 13(a) and 22(1) of the Charter?
In relation to the strip searches of Dr Minogue 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:
(4) Were the strip searches authorised by s 45 of the Corrections Act and regs 85 to 88 of the Corrections Regulations 2019 (Vic)?
(5) Was proper consideration given to relevant human rights in deciding to order the strip searches, for the purposes of s 38(1) of the Charter?
(6) Were the decisions to order the strip searches incompatible with Dr Minogue’s human rights in ss 13(a) and 22(1) of the Charter?
7 I have determined those issues as follows:
In relation to the directions that Dr Minogue submit to a urine test on 4 September 2019 and on 1 February 2020:
(1) The directions were authorised by s 29A of the Corrections Act.
(2) Proper consideration was not given to relevant human rights in making the directions, in breach of s 38(1) of the Charter.
(3) 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.
In relation to the strip searches of Dr Minogue 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:
(4) The strip searches of Dr Minogue on 4 September 2019 and 1 February 2020 were not authorised by reg 87(1)(d) of the Corrections Regulations, because there were not reasonable grounds to believe that they were necessary for the security and good order of the prison. The strip searches of Dr Minogue on 18 February were authorised by reg 87(2).
(5) 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.
(6) 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.
