Examples of breaches of the right to humane treatment when deprived of liberty

There have been cases in the Victorian Court of Appeal and Supreme Court where a decision by prisons was found to be incompatible with the section 22 Charter right to humane treatment when deprived of liberty.

Mandatory strip searches before random urinalysis tests

In the case of Thompson v Minogue [2021] VSCA 358, the Victorian Court of Appeal looked at a mandatory random urine testing program at Barwon Prison. In that program, 5% of the prison population had to do mandatory supervised urinalysis testing each month, with routine strip searches before-hand.

The Court of Appeal found that both the random urine testing and strip searches limited the section 22 right to humane treatment when deprived of liberty (and also the right to privacy). However, they found the random urine testing was a reasonable and justified limit of those rights given the prison’s duty to keep people in prison safe.

In relation to routine strip searching before random urine testing, the Court found that this was not a reasonable and justified limit of the right to humane treatment when deprived of liberty, and therefore breached section 22 of the Charter (as well as the right to privacy). The Court’s reasons for making this finding were:

• The way the strip searches was conducted was “extremely invasive and demeaning”
• The prison did give evidence of less intrusive alternative options they had considered, and whether they would be less or more effective, such as X-ray body scans, or targeted strip searches instead of routine ones
• The unlikelihood of people being able to interfere with their tests when they have been asked to do them randomly without notice
• The prison did not give any independent evidence to support the argument that strip searching of people doing tests ensures the effectiveness of the random urine testing program

Failure to provide people in prison with access to reasonable medical care and treatment

In the case of Castles v Secretary to the Department of Justice (2010) 28 VR 141; (2010) 28 VR, the Supreme Court of Victoria looked at a prison’s refusal to grant a leave permit to go to an IVF appointment. The Court found that the right to human dignity under section 22(1) includes the right to access reasonable medical care and treatment that is necessary to preserve a person’s health. The Court found that IVF treatment in this case was included in the right and declared that the person was entitled to leave the prison for this reason.

The Court also found that people in prison are entitled to equivalent care – this means a standard of medical care and opportunity to have a standard of health in prison that is equivalent to people in the community.

Important: although the Court confirmed the person’s right to leave the prison for IVF treatment in this case, it said limits on section 22 rights could be justified in some circumstances, depending on the day permission was needed. For example, in this case, if there was no security or transport available to take them on a certain day.