Imprisonment and the rights of people in prison

Prison offences are defined as any contravention of the Corrections Act or Corrections Regulations. These offences are in addition to the criminal law.

Prison offences are determined by the relevant legislation: the Corrections Act, Corrections Regulations, Commissioner’s Requirements, Deputy Commissioner’s Instructions, Local Operating Procedures (for public prisons) and Operations Manuals (for private prisons).

Prison discipline is covered in Part 7 of the Corrections Act. On the suspicion that a breach of prison rules has occurred, the matter is reported to a disciplinary officer. The disciplinary officer, after investigating the alleged offence and after giving the person in prison an opportunity to explain, may then take no further action either because they are satisfied that no offence has been committed or because the offence is trivial.

If action is to be taken, the offence must be recorded in writing and the report given to the person in prison and to the prison manager as soon as possible. The disciplinary officer may:

• reprimand the person or withdraw one of the person’s privileges for up to 14 days;
• charge the person with a prison offence to be heard at a general manager’s disciplinary hearings; or
• take steps to have the matter dealt with under the criminal law.

The disciplinary officer’s decision cannot be appealed, reviewed, challenged or questioned in court.

When a charge is laid against a person in prison, the matter is dealt with via a ‘general manager’s disciplinary hearing’ conducted by the prison manager or delegate, who is called the ‘hearing officer’. People in prison are not permitted lawyers for these hearings, which are a notoriously opaque process.

Disciplinary processes are outlined in Part 2 of the Commissioner’s Requirements.

Before a disciplinary hearing, the person in prison must be given a ‘charge of prison offence’ document. The information in this document includes:

• the prison offence the person in prison has been charged with committing;
• where relevant, a list of the contraband items seized from the person in prison;
• the name of the informant;
• the time, date and place of the disciplinary hearing;
• the disciplinary hearing’s procedures; and
• the name of the hearing officer who will hear the matter.

A person in prison must be notified of a disciplinary hearing at least 72 hours before the proposed time of the hearing. That is, unless the person and the hearing officer agree to hold the hearing earlier. Or, unless the person is due to be discharged or transferred within seven days.

A person in prison must have the opportunity to sign a ‘notification of charge of prison offence’ document, which is also to be signed by the issuing prison officer and a witness (noting the time and date the charge was issued).

Before a disciplinary hearing, the hearing officer must consider the person’s current psychiatric rating and, where appropriate, seek advice from health professionals to determine if it is appropriate to proceed with the disciplinary hearing.

The hearing officer must take into consideration the person’s age, maturity and psychiatric condition – both in terms of mitigation and likely impact on their mental state regarding the latter – in determining any penalty if the person is found guilty of a prison offence.

If the hearing officer finds a person in prison guilty of a prison offence, the officer may impose any one of the following penalties:

• a reprimand; or
• withdrawal of one or more of the person’s privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding a total of 30 days; or
• a fine up to 1 penalty unit (1 penalty unit is currently $192.31 from 1 July 2023 to 30 June 2024 and will increase annually) – the penalty unit applies to the commission date and not the hearing date.

The outcomes and penalties of the disciplinary hearing are recorded and made available to people in prison upon request.

Being found guilty of a prison offence not only may result in one of the penalties listed above – a finding of guilt also impacts decisions about the person’s classification, their assigned prison occupation and prison accommodation.

When police are called to investigate an alleged offence in prison, they treat it like any other complaint and, if charges are laid, the complaint is heard in an ordinary court under the usual procedure for criminal prosecutions.

The decision whether to prosecute a person in prison in court for a criminal offence that occurred within a prison depends on the seriousness of the offence. In less serious matters, the prison authorities may exercise discretion to deal with the alleged offence at a disciplinary hearing.

As set out above, legal representatives cannot attend disciplinary hearings. A person in prison is entitled to have another person from prison present.

People in prison who want to challenge the outcome of a disciplinary hearing are required to seek judicial review in the Supreme Court of Victoria pursuant to the general principles of administrative law.

For example, where there has been an alleged breach of the rules of natural justice, which has prevented the person in prison from obtaining a fair hearing in relation to the alleged offence.

In Henderson v Beltracchi [1999] VSC 135, a person in prison successfully challenged the hearing officer’s decision on the basis that they were denied natural justice and procedural fairness constituted (in part) by the refusal to permit Mr Beltracchi to call a witness in support of his case. In that case, it was enough that the witness’s evidence may support the possibility of a successful outcome, even if that possibility was not very strong.

VCAT has no jurisdiction to review the decisions of hearing officers.

While prison staff involved in disciplinary hearings are bound by the Human Rights Charter, the Victorian Ombudsman found in their 2021 Investigation into good practice when conducting prison disciplinary hearings that prison disciplinary hearings in prisons are carried out “in the dark”’ with insufficient scrutiny, oversight or transparency.

The Victorian Ombudsman documented issues throughout the prison disciplinary process and found that there is a distinct lack of information, independent specialist legal advice and assistance. Notably, the Victorian Ombudsman identified potential failures to afford people procedural fairness, including:

• real perceptions of bias, with no independent people involved in the process. Unit supervisors are involved in investigating alleged offending and hearings are conducted by a delegate of the general manager of the prison – in other words, a prison officer;
• widespread use of undocumented pre-hearing discussions, with many people in prison alleging that prison officers discuss the likely outcome of disciplinary hearings with them before the hearing;
• no requirement for written reasons for a decision, which contrasts with other jurisdictions such as South Australia where written reasons must be provided to people in prison; and
• limited review options – if a person is unhappy with the outcome of the hearing, their only option is to seek judicial review in the Supreme Court of Victoria which can be complicated, expensive and inaccessible.

The penalties for drug-related offences are set out in the Local Operating Procedures (for public prisons) and Operations Manuals (for private prisons).

The Corrections Act (s 29A) allows the prison manager – in the interests of the management, good order and security of the prison – to drug test a person in prison at any time. The prison manager does not need to be reasonably suspicious of drug use to conduct a drug test. Therefore, the Corrections Act allows random and selective drug testing of people in prison.

This was confirmed in Thompson v Minogue [2021] VSCA 358 where the Court of Appeal found that the direction that Dr Craig Minogue be randomly selected to do a random urine test was not unlawful. It was held that the scheme for urinalysis tests was reasonable and proportionate to protect the rights to life and personal safety and security of people in prison by addressing the serious drug-use problem at Barwon Prison. The Court of Appeal was satisfied that the frequency of random urine tests was neither “negligible or oppressive” and that there were no less restrictive means reasonably available which would achieve the same level of deterrence.

Since 1 July 2015, it has been an offence to possess or use tobacco in a Victorian prison. This offence is subject to a maximum fine of 10 penalty units.