Imprisonment, supervision and prisoner rights

Prisoners can direct requests or complaints to a wide variety of people inside and outside their own particular prison (s 47(1)(j), (m) Corrections Act 1986 (Vic) (‘Corrections Act’)).

Within the prison, requests and complaints are handled at different levels. Prisoners have the right to direct requests and complaints to the officer in charge of their section, and also to the prison’s general manager. The general manager must be available at reasonable times to receive requests and complaints from prisoners, to record all requests and to take whatever action they consider necessary.

Prisoners may direct requests or complaints to any outsider they wish (e.g. judges, members of parliament, ministers of the Crown). It is the policy of Corrections Victoria to forward such letters unless they are threatening or harassing in nature.

These letters are subject to normal censorship (see reg 19 Corrections Regulations 2019 (Vic) (‘Corrections Regulations’); read with ss 47A–47E Corrections Act), which states that a prison officer may open and inspect a parcel to determine whether or not the contents of the parcel may jeopardise the safety and security of the prison, the safe custody and welfare of any prisoner, or the safety of the community.

All Magistrates’ Court magistrates, County Court judges and Supreme Court judges have the right to attend and inspect prisons when they see fit (s 34).

Independent prison visitors may visit the prison to which they have been appointed to inspect the facilities, observe the workings of the prison, and discuss any topic they feel appropriate with prisoners and staff. The Independent Prison Visitors Program is run by the Justice Assurance and Review Office.

If the prison manager has 24 hours’ notice of an intended visit by an independent prison visitor, a notice must be posted in the prison that is noticeable to prisoners and prison officers of the time and date of the intended visit. The prison manager must also bring to the attention of the independent prison visitor the names of prisoners and officers who have requested to see the independent prison visitor.

Independent prison visitors are expected to report the results of their visits periodically to the Minister for Corrections. If they feel it is appropriate, they may discuss issues with the minister at any time. A list of independent prison visitors can be obtained from the prison manager of any prison or from the Department of Justice’s Justice Assurance and Review Office.

Under both the Ombudsman Act 1973 (Vic) and section 47(1j) of the Corrections Act, prisoners have the right to complain to the Victorian Ombudsman. (For general information about ombudsmen, see Chapter 12.2: Taking a problem to an ombudsman.)

Prisoners 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 prisoner’s phone list to make this call. Calls to the Victorian Ombudsman are limited to 12 minutes and are answered between 10am and 3pm on weekdays. To contact the Victorian Ombudsman, a prisoner must enter their prisoner ID number, followed by their PIN, then press *#05. The prisoner 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 all other avenues of redress have been tried. This means that a prisoner has to have made a complaint to the prison authorities and had it refused.
• Second, the issue may be one where staff shortages or the physical condition of the prison prevent any redress. These issues are matters for the Minister for Corrections, and the Victorian Ombudsman has no jurisdiction concerning the actions of the minister.
• Third, 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 prisoner 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 prisoner’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 prisoners’ complaints is very low, and that the Victorian Ombudsman has very limited power to remedy a situation to the satisfaction of the prisoner.

The types of matters where the Victorian Ombudsman may assist are outlined in a recent report, The Ombudsman for human rights: A casebook (2021).