The Law Handbook 2024

Chapter 3.8: Imprisonment and the rights of people in prison 237 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, theVictoriaOmbudsman 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 Ombudsmanmay 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) . Health care and mental health care 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. Complaints about discrimination 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.