The Law Handbook 2024

Chapter 3.8: Imprisonment and the rights of people in prison 233 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 onlymay 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. Review rights 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. Drugs and smoking 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