DETAINEE QUESTIONS THE RANDOM URINE TESTS AND STRIP SEARCH DONE BY THE PRISON

Minogue v Thompson [2021] VSC 56 (16 February 2021)

In this case, a detainee questions the random urine test and strip search done by the defendants against him.

Facts:

In 1988, Dr. Craig Minogue was sentenced by this Court to a term of life imprisonment. He is currently serving his sentence in Barwon Prison.

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.

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.

Dr Minogue contends that the drug tests and the strip searches were not authorised by the  Corrections Act, and were also unlawful. The defendants maintains 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.

Issue: Are the urine tests and orders to strip search lawful?

Law:

• Rights and Responsibilities Act 2006 SS.7(2), 13(a),  22(1),  38(1)
• Corrections Regulations 2019 reg 87

Analysis:

The directions that Dr Minogue submit to random general urine tests on 4 September 2019 and 1 February 2020 limited his right to be treated with humanity and respect for his dignity under S.22(1) of the Charter.  While it is administered consistently, in accordance with established procedure, and with the objective of minimising drug-related harms, the testing process described is inherently demeaning.

The indignities of being strip searched and compelled to provide a urine sample under supervision are compounded by the fact that the indignities are suffered ‘irrespective of placement or history of use’.  In Dr Minogue’s case, there was no recognition that he has no history of drug use, and in more than 30 years has never returned a positive result.

The direction given in the Urinalysis Procedure that required Dr Minogue submit to random urine tests was incompatible with his right to privacy in S.13(a) of the Charter, and with his right in  S.22(1) to be treated humanely and with respect for human dignity while deprived of liberty.  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.

The court does 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, the court does not understand why Mr Thompson considers it necessary to take the additional measure of strip searching every prisoner before every test.

While it accepts that Mr Thompson believes that mandatory strip searching is necessary to ensure the effectiveness of random urine testing for drugs and alcohol, his evidence did not demonstrate reasonable grounds for that belief.  Other features of the testing procedure provide little, if any, opportunity for a prisoner to substitute or alter a random urine sample.  A less intrusive, more targeted strip searching regime has successfully been introduced.

Conclusion: The directions that Dr Minogue submit to random urine tests on 4 September 2019 and 1 February 2020 were:

1. Incompatible with his right to privacy and his right to be treated with humanity and respect for the inherent dignity and
2. Were not authorised by reg 87(1)(d) of the Corrections Regulations.

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