Imprisonment and the rights of people in prison

People in prison can direct requests or complaints to a wide variety of people inside and outside their own particular prison (s 47(1)(j), (m) Corrections Act).

Within the prison, requests and complaints are handled at different levels. People in prison have the right to direct requests and complaints to the officer in charge of their section, and also to the prison’s general manager. The general manager must be available at reasonable times to receive requests and complaints from people in prison, to record all requests and to take whatever action they consider necessary.

People in prison may direct requests or complaints to any outsider they wish (e.g. judges, members of parliament, ministers of the Crown). It is the policy of Corrections Victoria to forward such letters unless they are threatening or harassing in nature.

These letters are subject to normal censorship (see reg 19 Corrections Regulations; read with ss 47A–47E Corrections Act), which states that a prison officer may open and inspect a parcel to determine whether or not the contents of the parcel may jeopardise the safety and security of the prison, the safe custody and welfare of any people in prison, or the safety of the community.

Independent prison visitors may visit the prison to which they have been appointed to inspect the facilities, observe the workings of the prison, and discuss any topic they feel appropriate with people in prison and staff. The Independent Prison Visitors Program is run by the Justice Assurance and Review Office.

If the prison manager has 24 hours’ notice of an intended visit by an independent prison visitor, a notice must be posted in the prison that is noticeable to people in the prison and prison officers of the time and date of the intended visit.

The prison manager must also bring to the attention of the independent prison visitor the names of people in prison and officers who have requested to see the independent prison visitor.

Independent prison visitors are expected to report the results of their visits periodically to the Minister for Corrections. If they feel it is appropriate, they may discuss issues with the minister at any time. A list of independent prison visitors can be obtained from the prison manager of any prison.

Under both the Ombudsman Act 1973 (Vic) and section 47(1)(j) of the Corrections Act, people in prison have the right to complain to the Victorian Ombudsman about an ‘administrative act’. (For general information about ombudsmen, see Chapter 12.1: Taking a problem to an ombudsman.) People in Victorian prisons can call the Victorian Ombudsman (tel: 1800 806 314) from prison, free of charge. The Victorian Ombudsman does not need to be on a person’s phone list to make this call. Calls to the Victorian Ombudsman are limited to 12 minutes and are answered between 10 am and 3 pm on weekdays. To contact the Victorian Ombudsman, a person must enter their ID number, followed by their PIN, then press *#05. The person is then connected directly to the Victorian Ombudsman’s office. These calls are not recorded or monitored. Some matters to note when raising concerns with the Victorian Ombudsman include:

• first, the Victorian Ombudsman does not usually intervene until someone has raised the issue with the relevant public body. As at the time of writing, the Victoria Ombudsman recommends that people in prison raise the issue with their unit manager in the first instance. If they are not satisfied with their response, raise it with the general manager of the prison, ideally in writing. If no response is received or the response is unsatisfactory, then contact the Victorian Ombudsman. If someone in prison is concerned that making a complaint will endanger their safety, they can contact the Victorian Ombudsman for advice;
• second, the substance of the complaint must involve an ‘administrative act’ by a prison official. For example, the Victorian Ombudsman has no power to take action about a complaint that one person assaulted another, which is a matter for the police and prison management. However, the Victorian Ombudsman might have jurisdiction to intervene if the prison authorities knew of the danger of such an assault and failed to take adequate precautions to prevent it. This distinction between ‘administrative act’ and other complaints is difficult, but it is best to assume that some administrative act has been involved and send the complaint to the Victorian Ombudsman.

If the Victorian Ombudsman finds a person’s complaint is justified, a remedial course of action is recommended to the prison authorities. Prison authorities are not obliged to implement the suggested action.

Note that the rate of substantiation by the Victorian Ombudsman for a persons’ complaints is very low, and that the Victorian Ombudsman has very limited power to remedy a situation to the satisfaction of the person involved.

The types of matters where the Victorian Ombudsman may assist are outlined in a recent report, The Ombudsman for Human Rights: A Casebook (2021). Note that this report has a section dedicated to custodial settings (available at www.ombudsman.vic. gov.au).

If someone in prison has a complaint about health care they have received from a health service, they can complain to the Health Complaints Commissioner.

If someone in prison has a complaint about the mental health care they have received from a publicly funded ‘mental health and wellbeing service’, they can complain to the Mental Health and Wellbeing Commission.

Both oversight agencies recommend that people try to resolve their complaint with the service provider first, before making a complaint to either commission.

As noted above, if a person in prison considers they have been discriminated against, they can complain to the Australian Human Rights Commission or the Victorian Equal Opportunity and Human Rights Commission. It is not necessary to raise an issue of discrimination with prison authorities before complaining to a human rights commission.