Imprisonment and the rights of people in prison

Visits from relatives and friends

All people in prison can have up to 10 personal visitors on their visitors list (excluding children who do not need to be listed as a visitor). The number of personal visitors a person can have at any one time depends on the rules of the particular prison (e.g. visits at the Melbourne Assessment Prison are different to visits in regional, minimum-security prisons, where all-day visits are permitted on weekends). However, typically, a person can have up to three adult visitors and a number of children visit at one time.

People in prison are entitled to one half-hour visit by relatives and friends each week. Visits are governed by section 37 of the Corrections Act and regulation 83 of the Corrections Regulations. See also section 38 and regulation 79, which govern contact and residential visiting programs.

Restrictions on visits involve the number of persons who may visit, time limitations, the degree of supervision and whether body contact is permitted. The restrictions imposed depend upon the person’s classification. During visits, the person may be permitted physical contact with visitors to varying degrees. Prison officers supervise visits, and people at maximum-security prisons are required to wear approved contact-visit overalls.

Prior to visiting, partners, friends and relatives of the person in prison should make sure that the person they are visiting has put them on their visit list.

All prison visitors are subject to prison regulations and orders. Disobeying prison orders is an offence and could result in a visitor being banned from a prison. It is best to check with the prison to determine the visiting rights of the person in prison and any specific rules governing visits. People in prison must record the full name, address and birth date of potential visitors on their prison visit lists.

People in prison can refuse to accept visits from other people, including families, relatives and friends.

The prison manager has the discretion to extend or limit visiting rights. Special exceptions can be made for compassionate reasons.

There are restrictions as to what items can be given to people in prison. All gifts must be passed through the property section of the prison. Again, it is prudent to check with the particular prison as to what items and what amount of money is permitted.

The Corrections Act requires visitors to give prescribed information. This includes the person’s identity, address, occupation, age, relationship (if any) to the person in prison and the purpose of the visit.

Section 43 of the Corrections Act gives the prison manager the power to refuse or terminate visits for security reasons. Prison managers have the power to prohibit visitors from entering all or any prisons in Victoria if they believe on reasonable grounds that the good order or security of prisons or the safety of people in prison or visitors to prisons is threatened.

Visitors will be subject to searches of themselves and their belongings (ss 44, 45, 46 Corrections Act; reg 89). The prison manager has the power to direct a person to submit to drug or alcohol tests. If a person tests positive to such a test the prison manager can refuse prison entry.

If you are planning to visit a person in prison:

• contact the prison before you visit;
• make sure you are on the person’s visitors list;
• make sure you have the correct identification;
• check the prison’s visiting times and the rules for visitors;
• only take allowed property and money;
• do not take any prohibited items into a prison.

For more information, see www.corrections.vic.gov. au/prisons/contacting-and-visiting-prisoners.

Visits from lawyers and police officers

Professionals, including lawyers and police officers, may arrange with the prison to visit people in prison in person or via an online communications platform like Zoom. These visits are only to be made in a professional capacity and only in accordance with prison security and visiting protocol.

Legal representatives are permitted to visit at times fixed by the Corrections Regulations, between 8.30 am and 3.30 pm. Visits outside these hours are permitted with permission from the Minister for Corrections, the DJCS Secretary, or the prison manager. Legal representatives are permitted to exchange legal documents with people in prison, and with the prison manager’s permission, the person in prison may retain legal documents in their possession (s 40; reg 75). It is best to check with the prison to confirm professional visiting hours.

Police visits: peoples’ rights

A police officer may visit a person in prison between 8.30 am and 3.30 pm. People in prison may refuse such a visit or, if visited, may refuse to be interviewed (s 41(3)-(4) Corrections Act). Following the introduction of section 464B into the Crimes Act 1958 (Vic) (‘Crimes Act (Vic)’), police may now make an application to the Magistrates’ Court for an order permitting them to interview a person in prison for offences other than offences for which they are held in custody. This amendment to the Crimes Act (Vic) does not remove the person’s right to silence or privilege against self-incrimination.

Visitors’ identification

Visitors need to have 100 points of identification, which may include a combination of passport, driver licence, Medicare card, rates notice and/or birth certificate. There may be some slight variation between different prisons so it is a good idea to check with the relevant prison before attempting to visit. A list of approved identification is provided on the website of Corrections Victoria (www. corrections.vic.gov.au/prisons/visiting-a-prisoner/ identification).

There are restrictions on who can visit a person detained in prison.

Persons with a criminal history

People with a prior criminal history typically have to seek permission from the prison manager to visit someone in custody. The visits sections of prisons should have a form for that purpose. If they do not, it will be necessary to write a letter to the prison manager in which the person in prison is incarcerated, requesting permission to visit.

Restricted access people in prisons

A person in prison classified as ‘restricted access’ is unable to receive visits from children or to be present in the visiting area of the prison while children are present.

People in prison may be classified as ‘restricted access’ if they have been charged with, convicted of, or have known prior convictions for one or more of the following offences:

• offences involving physical or sexual abuse of children, including child pornography offences;
• sex offences against an adult, where the offender has at least two previous convictions for similar offences;
• offences involving physical or sexual assault of a vulnerable victim over 15 years of age.

Any person in prison identified as a restricted access person must apply to the general manager of their prison to receive any visit from a child.

People in prison may use phones, where they are available for use and at times determined by the prison manager. All people in prison can have up to 10 contact numbers on their phone list (this includes the numbers of professionals such as lawyers). All personal calls placed by people in prison through the prison telephone system are subject to recording and may be monitored. All phone calls with the person’s lawyer are exempt from recording or monitoring. People in prison can only make phone calls if they have money to cover the cost of the call. As at the time of writing, phone calls from people in prison to a mobile phone were nearly 60 cents per minute; approximately $7 for a 12 minute call.

Legal representatives may also request to arrange a professional phone call (or video conference) with their client. This is arranged through the prison and allows the lawyer and their client to have contact at no cost to the person. The process for requesting a professional telephone call with a person in prison varies between prisons.

If you are not calling from a professional organisation, you can not telephone people in prison directly. However, you can ask to be added to a person’s approved telephone list so the person can call you.

If you are unsure whether you are on a person’s telephone list, check with the person during a visit or by mail. Note that prisons cannot release information about who is on a person’s telephone or visitors list (a person in prison’s telephone list is not the same as their visitors list).

All people in prison may send and receive letters, emails and parcels.

Pursuant to section 47(1)(m), there is a statutory presumption that letters or parcels sent to and received from the following persons or bodies will not be opened by prison staff: Minister of Corrections, the DJCS Secretary, the Correctional Services Commissioner, a member of parliament, the Victorian Ombudsman’s office, an independent prison visitor, the Health Services Commissioner or a person acting on the Commissioner’s behalf, the Mental Health Complaints Commissioner or a person acting on the Commissioner’s behalf, Justice Health, the VEOHRC or a person acting on the VEOHRC’s behalf, the Australian Human Rights Commission, the Office of the Commissioner for Privacy and Data Security, the Independent Broad- based Anti-corruption Commission, the Victorian Inspectorate (oversight body in Victoria’s integrity system), a legal practitioner representing the person in prison or providing them with legal advice, and royal commissions as relevant.

That presumption may be displaced, and the letter or parcel disposed of, if the prison manager reasonably suspects that the letter, parcel or unauthorised article or substance could pose an immediate threat to any person (s 47A Corrections Act). Section 47B permits certain confidential letters or parcels to be inspected by the prison manager if it is reasonably suspected that such a letter or parcel to or from a person in prison contains an unauthorised article or substance. The prison manager is given the power to ‘hold’ the letter or parcel and to notify the person concerned, their legal representative and the relevant commissioner of their suspicions. The purpose of the notification is to allow the letter or parcel to be opened and inspected before those parties. Importantly, especially from the perspective of legal professional privilege, the prison manager is not permitted to read or censor the letter or parcel.

Additionally, section 47C permits all other letters or parcels to be opened and read to determine whether or not the contents of the letter may jeopardise the safety and security of the prison and the safe custody and welfare of the person in prison or community safety. There is no reasonable suspicion test in this section, or other objective criteria to determine when letters or parcels may be opened and read. The statute appears to envisage that all letters and parcels not falling within section 47(1)(m) will be read by prison authorities.