Introduction to prisoner offences
There are rules in prison that, if broken, can result in disciplinary action. These rules are in addition to the criminal law.
Prison rules are determined by the relevant legislation: the Corrections Act, Corrections Regulations, Commissioner’s Requirements, Deputy Commissioner’s Instructions, Local Operating Procedures (for public prisons) and Operations Manuals (for private prisons).
Prisoners should be informed of the prison’s rules during the reception phase of entering the prison (see ‘Reception’ in ‘What happens when a prisoner arrives at prison?’).
Prison discipline is covered in Part 7 of the Corrections Act.
Prison offences are defined as any contravention of the Corrections Act or Corrections Regulations. On the suspicion that a breach has occurred, the matter is reported to a disciplinary officer. The disciplinary officer, after investigating the alleged offence and after giving the prisoner an opportunity to explain, may then take no further action either because they are satisfied that no offence has been committed or because the offence is trivial.
If action is to be taken, the offence must be recorded in writing and the report given to the prisoner and to the prison manager as soon as possible.
The disciplinary officer may also do one of the following:
- reprimand a prisoner; or
- withdraw one of the prisoner’s privileges for less than 14 days; or
- charge the prisoner with the prison offence; or
- take steps to have the matter dealt with under the criminal law.
The disciplinary officer’s decision cannot be appealed against, reviewed, challenged or questioned in court.
Prison general manager’s disciplinary hearing
When a charge is laid against a prisoner, the matter is dealt withvia a hearing that is conducted by the prison manager or delegate, who is called the ‘hearing officer’. These hearings are known as ‘general manager’s discplinary hearings’.
Prisoner management and disciplinary processes are outlined in Part 2 of the Commissioner’s Requirements (see, especially, 2.2.3).
Before a disciplinary hearing, the prisoner must be given a ‘charge of prison offence’ document. The information in this document includes:
- the prison offence the prisoner has been charged with committing;
- where relevant, a list of the contraband items seized from the prisoner;
- the name of the informant;
- the time, date and place of the disciplinary hearing;
- the disciplinary hearing’s procedures; and
- the name of the hearing officer) who will hear the matter.
A prisoner must be notified of a disciplinary hearing at least 72 hours before the proposed time of the hearing. That is, unless the prisoner and the hearing officer agree to hold the hearing earlier. Or, unless the prisoner is due to be discharged or transferred within seven days of the occurrence of the alleged prison offence or prison charge.
A prisoner must have the opportunity to sign a ‘notification of charge of prison offence’, which is also to be signed by the issuing prison officer and a witness (noting the date and time the charge was issued).
Before a disciplinary hearing, a hearing officer must consider the prisoner’s current psychiatric rating and, where appropriate, seek advice from health professionals to determine if it is appropriate to proceed with the disciplinary hearing.
If the hearing officer finds a prisoner 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 prisoner’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 not exceeding one penalty unit (from 1 July 2021 to 30 June 2022, the value of one penalty unit is $181.74) – the penalty unit applies to the commission date and not the hearing date.
In determining what (if any) penalty is to be imposed, the hearing officer must take into consideration the prisoner’s age, maturity and psychiatric condition.
The outcomes and penalties of the disciplinary hearing are recorded and made available to prisoners on request.
Being found guilty of a prison offence not only may result in one of the three penalties listed above, A finding of guilt also impacts decisions about the prisoner’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 prisoner 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.
Legal representatives cannot attend disciplinary hearings. A prisoner is entitled to have another prisoner present. The decision of the hearing officer may be reviewed if – within 30 days after giving notification of the decision or the reasons for the decision (whichever is the later) – an application is made under the Administrative Law Act 1978 (Vic).
An alternative is to apply to the Supreme Court for a judicial review of the hearing officer’s decision, based on 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 prisoner from obtaining a fair hearing in relation to the alleged offence (see Henderson v Beltracchi  VSC 135). VCAT has no jurisdiction to review the decisions of hearing officers.
Drug and alcohol offences
The penalties for drug-related offences are set out in the Local Operating Procedures (for public prisons) and Operations Manuals (for private prisons).
For a first drug-related offence, prisoners face a penalty of being ineligible to participate in contact visits for three months. For a second offence, this is extended to six months, and for a third conviction, 12 months. For a second and third offence, prisoners are also ineligible to participate in special visit days with children for periods of one month and two months, respectively. Such penalties are to be served concurrently; the maximum period that contact visits can be banned is 12 months.
The Corrections Act (s 29A) allows the prison manager – in the interests of the management, good order and security of the prison – to drug test a prisoner at any time. The prison manager does not need to be reasonably suspicious of drug use to conduct a drug test. Therefore, the Corrections Act allows random and selective drug testing of prisoners.
Smoking in prison
Since 1 July 2015, it has been an offence to possess or use tobacco in a Victorian prison. This offence is subject to a maximum fine of 10 penalty units.
Since 1 February 2018, it has been an offence to possess or operate a remotely piloted aircraft (also known as a ‘drone’) within 120 metres above or around the boundary of a Victorian prison. This offence carries a maximum penalty of two years’ imprisonment.
This ban was introduced to prevent drones from smuggling contraband (e.g. drugs, weapons and mobile phones) into prisons. The law only applies to conduct that intentionally or recklessly threatens the good order or security of a prison. A person recklessly operates a drone if they are aware that their drone is probably within the boundary. Accidental or unintentional behaviour is excused.