Imprisonment and the rights of people in prison

Section 58E of the Corrections Act and regulation 100 of the Corrections Regulations give Corrections Victoria the authority to grant emergency management days (EMDs) in specified circumstances that effectively reduce a person’s non- parole periods or, if this has not been fixed, their prison sentence.

The Secretary of the Department of Justice has the discretion to reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation:

• during an industrial dispute or emergency existing in prison; or
• in other circumstances of an unforeseen and special nature.

As per the Commissioner’s Requirements, people in prison may be eligible for EMDs where they can demonstrate:

• good behaviour while suffering disruption or deprivation during an industrial dispute or emergency existing in the prison in which their sentence is being served. The term ‘emergency’ is not seen to refer to the standard good order and security measures that occur in prisons, including the ‘lock-down’ of a prison (or part of a prison), or a detailed search of a unit that may occur following an incident, or
• that circumstances have arisen of an unforeseen and special nature, which may include where the prisoner’s conduct has been exceptional or meritorious (e.g. saving a life, fighting a fire) or situations such as a request to care for family members after the death of a spouse or other family member in the final days of a person’s sentence.

The number of EMDs a person is eligible for is limited to:

• four days for each day (or part of a day) on which an industrial dispute or emergency occurred; or
• fourteen days for unforeseen and special circumstances.

EMDs are not available in respect of or in relation to any event (including any emergency or riot) at the Metropolitan Remand Centre on 30 June 2015 and 1 July 2015 and the security response to that event; or any emergency, riot or other significant security incident that is caused or contributed to by the person in prison or any other people in prison.

People in prison may apply for EMDs using an Application for Emergency Management Days, which must be forwarded to the General Manager for consideration. An application must state:

• the number of EMDs sought; and
• the reason(s) why it is believed that the EMDs should be granted (including any supporting documentation relevant to the application).

Within 14 days of receiving an application, the General Manager must:

• ensure that the discharge date nominated in the application is correct;
• comment on the strength of the application and verify the details provided by the person in their application; and
• advise whether the application for EMDs is supported.

Following the General Manager’s recommendation, the application will be forwarded to:

• the relevant Assistant Commissioner (public prisons) or Deputy Commissioner (public and private prisons) where consideration on an individual basis is required (eg, for EMD applications where the person’s conduct has been exceptional or on compassionate grounds); or
• the Commissioner where it is likely that a systemic approach is required (eg, for EMD applications where the person has demonstrated good behaviour while suffering disruption or deprivation during an industrial dispute or emergency existing in the prison); and
• record the application in the Emergency Management Days Register.

The relevant Commissioner will make the final determination of whether the application for EMDs will be granted and the person in prison will be advised of the decision in writing.

The Covid-19 pandemic

During the peak of the Covid-19 pandemic, people in prison were automatically considered for EMDs if they were subjected to restrictive regimes as a result of the pandemic (including time detained in protective quarantine).

The Commissioner determined that the pandemic was an ‘emergency’ for the purpose of granting EMDs and that the number of EMDs granted will be close to the equivalent of the number of days of disruption or deprivation. Generally this resulted in one day off the sentence or non-parole period for every one day of disruption or deprivation experienced due to Covid-19 restrictions.

People in prison who experience disruption or deprivation due to the pandemic (eg, stints in protective quarantine) should apply for EMDs if they are not being automatically considered.