Compatibility of intrusive bail conditions with the right to privacy under the ACT Human Rights Act

R v Wayne Michael Connors [2012] ACTSC 80 (28 May 2012)


Chief Justice Higgins of the ACT Supreme Court has rejected claims made by Mr Connors that a bail condition requiring he undergo urinalysis (urine testing) to enforce abstinence from illicit drugs was beyond the powers conferred by section 25 of the Bail Act 1992 (ACT). The court confirmed that the bail conditions did not breach Mr Connors’ right to privacy under section 12 of the Human Rights Act 2004 (ACT).


Wayne Michael Connors, currently awaiting trial in the ACT on a charge of aggravated robbery, was released on bail with the condition that he obey all reasonable directions of the Director-General of the ACT Corrective Services, including submitting to urinalysis.

Mr Connors alleged that the requirement that he submit to urinalysis was beyond the scope of section 25 of the Bail Act 1992 (ACT) (which defines permissible conditions of bail as those which are not more onerous than is necessary to achieve those purposes prescribed) and was a breach of his right to privacy under section 12 the Human Rights Act 2004 (ACT).


Chief Justice Higgins addressed the following legal questions:

(a) Is the condition beyond the power conferred by section 25 of the Bail Act 1992 (ACT)?

Mr Connors’ argument rested on the recent case of Lawson v Dunlevy [2012] NSWSC 48, in which Justice Garling overturned Magistrate Dunlevy’s decision to impose a breath test requirement on the accused Jeremy Lawson as a condition of his bail. Justice Garling ruled that the breath test requirement was not permitted by the relevant legislation, namely section 37 of the Bail Act 1978 (NSW), as it did not fulfil any of the purposes listed in section 37(1) as justifying imposition of a bail condition.

Chief Justice Higgins disagreed with this interpretation, opining that the breath test requirement was ancillary to fulfilment of one of the permitted purposes (namely section 37(1)(a) promoting effective law enforcement) and was thus itself lawful as per the decision of Justice Dixon in Wragg v State of NSW (1953) 88 CLR 353. In addition, it served the purpose of deterring or detecting the breach of another condition of bail, namely that the accused not consume alcohol.

With regard to the current case, Chief Justice Higgins held that the requirement that the accused undergo urinalysis was ancillary to the prescribed purposes of bail and it assisted in avoiding breach of another bail condition (namely preventing offending whilst on bail), and was thus lawful under section 25 of the Bail Act 1992 (ACT).

His Honour did, however, express concern that the condition be “reasonably framed so as to be least obtrusive”, and to this end ordered an amendment to Connors’ bail condition stating that he was only required to give urine “if so directed in the course of supervision” by a corrections officer.

(b) Is the condition in breach of section 12 of the Human Rights Act 2004 (ACT), notwithstanding that reasonable limitation of rights as permitted by section 28?

Turning to the Human Rights Act 2004 (ACT), Chief Justice Higgins considered whether a bail condition requiring testing at random by urinalysis breached the accused’s right to privacy under section 12 of the Human Rights Act, or conversely whether it could be justified as a reasonable limitation on that right as per section 28 of the Act.

Chief Justice Higgins recognised the limitation such bail conditions posed on the accused’s right to privacy, and the danger that they would be enforced aggressively in an unfairly oppressive manner. However, his Honour accepted that in this case the limitation on the rights of the accused was reasonable, lawful and “demonstrably justified in a free and democratic society” pursuant to section 28 of the Human Rights Act, and thus did not breach section 12.

Relevance to the Victorian Charter

This case has direct relevance to the Charter of Human Rights and Responsibilities 2006 (Vic), as the ACT Human Rights Act sections 12 and 28 are analogous to sections 13 and 7(2), respectively, of the Victorian Charter.

Thus, the Court’s application of section 28 of the ACT Human Rights Act in its discussion as to whether the imposition of a bail condition mandating urinalysis and subsequent limitation on the accused right to privacy is reasonable given its purpose to facilitate compliance with the law and the primary condition of bail (that the accused abstain from consuming illicit drugs) gives useful guidance on what approach may be taken to the application of section 7(2) of the Victorian Charter with regard to the impact on the right to privacy on bail conditions within Victoria.

The decision can be found online at:

Beth King is a volunteer at the Human Rights Law Centre.