Legislation and rules

The same Acts and regulations apply to public and private prisons in Victoria.

Corrections Act and Regulations

The Corrections Act 1986 (Vic) (“Corrections Act”) is the principal Act governing the operation of correctional facilities in Victoria. The provisions of the Corrections Act specify the establishment and administration of prisons. This is supplemented by the Corrections Regulations 2019 (Vic) (“Corrections Regulations”), which give practical content to the Corrections Act.

Sentencing Act

The Sentencing Act 1991 (Vic) (“Sentencing Act”) plays an important role in determining the use of court sanctions administered by Corrections Victoria.

Charter of Human Rights and Responsibilities

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) creates an obligation for public authorities to give proper consideration to, and act in a way that is compatible with, human rights. The Charter came into full operation on 1 January 2008. From this date, Corrections Victoria has been responsible for assessing and, if necessary, amending legislation, regulations, policies, procedures and frameworks. (SeeCharter of Human Rights and Responsibilities Act”.)

Correctional Standards

Victorian prisons are subject to Correctional Standards: the Correctional Management Standards for Men’s Prisons in Victoria, and the Standards for the Management of Women Prisoners in Victoria. These standards focus on the outcomes and outputs to be achieved by public and private prison operators. They also contain guidelines for the classification and placement of prisoners.

Commissioner’s Requirements

Victorian prisons are subject to “Commissioner’s Requirements”. These are high-level requirements for operational matters (e.g. strip searches). The Commissioner’s Requirements are issued to ensure consistency of correctional practice across all Victorian prisons. The Commissioner’s Requirements must be followed by all staff members who provide correctional services in Victoria.

Deputy Commissioner’s Instructions

The Correctional Standards and Commissioner’s Requirements are put into practice through the Deputy Commissioner’s Instructions (for public prisons) and the Operating Instructions (for private prisons). These are public documents, except for the sections that deal with prison security issues, which are subject to restricted access. Prisoners are entitled to have adequate access to these instructions.

Prisons in Victoria are also governed by the Local Operating Procedures (LOPs) (for public prisons) or by the Operation Manuals (OMs) (for private prisons). These are the practical implementation of the Deputy Commissioner’s Instructions. Both these documents contain provisions that can significantly affect a prisoner. For example, if a prisoner commits an offence while in prison, they are not only subject to the penalties in the relevant Act, but are also automatically subject to the penalties in the LOPs or OMs.

The LOPs and OMs are made under delegated power from the Corrections Act or Corrections Regulations. If a rule in the LOPs goes further than the legislation, it is arguably beyond the power of the Deputy Commissioner to make that rule. Accordingly, any prison manager relying on that rule has made an error of law, which is reviewable under the Administrative Law Act 1978 (Vic) or by judicial review in the Supreme Court. Complaints about the actions of prison officials can also be made to the Victorian Ombudsman. (SeeMaking requests or complaints”.)

Prisoner access to prison manuals, legislation and rules

An important decision relating to prisoners’ access to OMs and LOPs is Minogue v Department of Justice & Group 4 Correctional Services Ltd [2004] VCAT 1194, which upheld the right of prisoners to access such material. However, OMs can only be accessed in prison libraries; therefore, access to these documents is controlled by prison management.

Arguably, in the absence of proper access to OMs, 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 Qld R 32).

Some prison libraries have copies of the Corrections Act, Corrections Regulations, Charter, Deputy Commissioner’s Instructions, Commissioner’s Requirements, Local Operating Procedures, OMs and the General Manager’s Instructions for the particular prison.