The Law Handbook 2024

222 SECTION 3: Fines, infringements and criminal law space, appropriate food to maintain health and wellbeing, and where applicable to cater to special dietary needs, suitable and appropriate clothing, and health and dental care. People in prison also have the right to practice their religion and, where it doesn’t interfere with the security and good order of the prison, to join with others to practice their religion and to have access to articles that will enable them to practice their religion. Section 47 also enshrines the right of people in prison to make complaints about the management of the prison to various authorities and agencies, including the Minister of Corrections, the Victorian Ombudsman, and the Health Complaints Commissioner. Discrimination law People in prison who have experienced dis­ crimination in prison may be able to bring a discrimination claim under the Equal Opportunity Act 2010 (Vic) (‘ EO Act ’) or a relevant Commonwealth discrimination law. Generally speaking, discrimination can only occur in certain protected areas of life. The key issue for many people who have experienced discrimination in prison is whether the relevant activity or conduct occurred in a protected area of life. The conduct of prison authorities is most likely to be characterised as a ‘service’ for the purposes of discrimination law. The EO Act and Commonwealth discrimination laws do not define services but rather include a non-exhaustive list of categories of services, such as ‘services of any profession, trade, or business…’, and ‘services provided by a government department, public authority, state-owned enterprise or municipal council’ (s 4 EO Act; similar definitions exist across the key Commonwealth discrimination statutes). It is generally uncontroversial that the provision of healthcare in a prison setting constitutes a service for the purpose of discrimination law. For contexts other than healthcare where it is less obvious that a person in prison is receiving a service, a critical factor in determining whether someone in custody is receiving a service is whether the relevant activity is an inherent part of incarceration or whether the activity is ‘helpful or beneficial to the prisoner’ (see Charles v State of Victoria  [2015] VCAT 375; Rainsford v Victoria [2007] FCA 1059 [73]). This reasoning has been applied to conclude that the following activities are arguably services for the purposes of a discrimination claim: • decisions regarding an application to perform volunteer work in the prison canteen; • complaints about medical treatment; • complaints about access to the telephone and problems with lost property. Conversely, decisions made about disciplinary or security issues in the prison are unlikely to amount to a service ( Egan v State of Victoria  [2011] VCAT 1364 VCAT; Charles v State of Victoria  [2015] VCAT 375 VCAT [56]). If a person in prison can establish that the treatment or conduct they experienced occurred within a protected area of life, then they can pursue a discrimination claim. (The general principles of discrimination claims are outlined in more detail in Chapter 11.1: Discrimination and human rights.) Access to information A person in prison can make a request about information held about them by Corrections Victoria through the Freedom of Information Act (‘ FOI Act ’). This includes entries in the Prison Information Management System (PIMS), and their health records. Requests about health information should be made to Justice Health. Requests for other information should be made to Corrections Victoria. If a family member or lawyer is making a request on behalf of a person in prison, they will need to provide a signed authority or written consent from the person in prison. More information about how to make an application under the FOI Act can be found in Chapter 12.3: Freedom of information law. Fee waiver An application and copying fee generally applies to requests for Freedom of Information, however, people in prison are generally able to apply for a fee waiver on the basis of financial hardship. International human rights law While Australia has promised to comply with many key international human rights treaties relevant to the experience of people in prison – such as the Convention Against Torture – people cannot enforce