Relevant legislation: Imprisonment and prisoner rights

The Corrections Act 1986 (Vic) (“Corrections Act”) is the principal Act governing the operation of correctional facilities in Victoria. The provisions of that Act specify the establishment and administration of prisons. This is supplemented by the Corrections Regulations 2009 (Vic) (“Corrections Regulations”), which give practical content to the Corrections Act. The Sentencing Act 1991 (Vic) (“Sentencing Act”) is also of importance in determining the use of court sanctions administered by Corrections Victoria. The same Acts and Regulations apply to public and private prisons in Victoria.

The passing of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) and its full operation from 1 January 2008 under Victorian law is likely to have an impact upon the administration of Victorian prisons (for further information, seeCharter of Human Rights and Responsibilities Act”.)

Apart from the legislative power exercised under the Acts and Regulations, prisoners are also subject to the provisions of various rules that implement the statutory framework of the prison system. They are known as “Commissioner’s Requirements”. These provide the procedures adopted by Corrections Victoria staff in the implementation of the Corrections Act and Regulations. The Director-General’s Rules were replaced by the CORE Operating Procedures on 1 May 1998. Those rules were renamed the Director’s Instructions with the establishment of Corrections Victoria on 1 July 2003. The Director’s Instructions are public documents, apart from those that have restricted access because of their focus on prison security issues. Prisoners are entitled to adequate access to those Instructions.

Each government prison in Victoria, as well as the two private prisons, Port Phillip Prison and Fulham Correctional Centre, also has its own particular Local Operating Procedures (or Operation Manuals in the case of private prisons), which are the practical implementation of the Director’s Instructions.

An important decision on access by prisoners to operational manuals and, in particular, Local Operating Procedures is Minogue v Department of Justice and Group 4 Correctional Services Ltd [2004] VCAT 1194, which upheld the “right” of prisoners to access such material. However, access is limited to the prison library, and therefore controlled by prison management.

Arguably, in the absence of proper access to those operational manuals (which are effectively the rules that govern the prison) a prisoner charged with a prison offence may, depending on the factual context, be able to challenge any finding of guilt on the basis that they did not have knowledge of the essential features of the rule that was broken; see Hogan v Sawyer [1992] 1 Qd R 32.