Div 6Management of prisoners

Division 6—Management of prisoners 29—Work by prisoners (1) A prisoner is, while in a correctional institution, required to perform such work, whether within or outside the precincts of the correctional institution, as the CE directs. (3) Tasks selected for prison work must, as far as reasonably practicable, be selected on the basis that they are likely to provide prisoners with experience in a recognised profession, trade or other field of employment. (4) The CE must, in directing a prisoner to perform any particular work, have regard to the age and the physical and mental health of the prisoner, and any skills or work experience of the prisoner. (5) A prisoner in a correctional institution is not entitled to perform any other remunerated or unremunerated work of any kind, whether for the benefit of the prisoner or any other person, unless the prisoner has the permission of the CE to do so. 30—Prison education The CE must arrange for such courses of instruction or training as the CE thinks fit to be made available to prisoners. 31—Prisoner allowances and other money (1) A prisoner is, while in a correctional institution, entitled to an allowance at a rate from time to time fixed by the CE. (2) A prisoner who performs work under this Division (not being work performed under section 29(5)) is entitled to a further allowance at a rate from time to time fixed by the CE. (2a) The CE may establish a system of bonus payments for prisoners who, in the opinion of the CE, display a positive attitude, or apply themselves with particular effort, to the performance of work or other tasks or duties in the prison. (3) The CE may, for the purposes of subsection (2), fix rates of allowance that vary according to— (a) the classes of work to which they apply; or (b) the correctional institution in which the work will be performed; or (c) the different security classifications of prisoners performing the work; or (d) any combination of those factors. (4) All allowances to which a prisoner is entitled under this section will be credited to the prisoner to an account, or accounts, kept in his or her name by the CE. (4a) The CE may establish an account in the name of a prisoner into which is paid from time to time a proportion (not exceeding 30 per cent) of the prisoner's weekly income under this section, for the purposes of the resettlement of the prisoner in the community on being discharged from prison. (4b) The amount standing to a prisoner's credit in a resettlement account cannot be drawn on while the prisoner is in prison unless the CE is of the opinion that special reason exists for doing so. (5) The CE must review regularly the rates of the allowances to which a prisoner is entitled under this section. (5a) Subject to subsections (5b) and (5c), the CE may, if a prisoner receives any money (other than the allowances paid under this section)— (a) hold the money for as long as may be necessary for the purposes of ascertaining the identity of the person who made the payment and the circumstances of the payment; or (b) credit the whole, or part, of it to the prisoner; or (c) hold the whole, or part, of it on behalf of the prisoner and pay it over to the prisoner in accordance with this Act on discharge from prison; or (d) return the whole, or part, of it to the person who made the payment; or (e) if the prisoner is not lawfully entitled to the money, and the identity or whereabouts of the person who made the payment cannot be ascertained—pay the money to the Treasurer under section 6 of the Unclaimed Money Act 2021; or (f) retain it as evidence of an offence. (5b) A person who has been released from prison may not, without the approval of the CE, within a period of 12 months of release from prison, give money to a prisoner or deposit money in any account kept in the name of a prisoner. (5c) If a prisoner receives money in contravention of subsection (5b), the CE must make reasonable efforts to return the money to the person who made the payment. (6) The CE may deduct from any money standing to the credit of a prisoner pursuant to this section any amount due and payable by the prisoner by way of repayment of a loan made by the CE. (6a) If the CE is aware, by virtue of a warrant executed against the prisoner (whether issued before or after the commencement of this subsection), that a prisoner is liable for a VIC levy imposed in respect of any offence, the CE must deduct from the prisoner's weekly income under this section an amount determined by the CE. (6b) Subsection (6a) does not apply in relation to a prisoner who is being detained by virtue only of a warrant of commitment issued before the commencement of this subsection solely for the enforcement of a VIC levy. (6c) Money deducted under subsection (6a), and any money paid to the CE at any time by a prisoner in or towards satisfaction of a VIC levy, must be paid into the Victims of Crime Fund. (7) Subject to this Act, withdrawals from any account held in the name of a prisoner, and the purposes for which they are made, are at the discretion of the CE and, without limiting the generality of that discretion, withdrawals may be refused where the CE thinks that the refusal is justified in the interests of the good management of the prisoner or of the correctional institution generally. 32—CE may sell items of personal use to prisoners (1) The CE may sell any items of personal use or consumption that the CE thinks fit to prisoners. (2) Withdrawals of money from any account held in the name of a prisoner, at the discretion of the CE in accordance with section 31, may be made for the purchase of items for sale under this section. (3) The CE is authorised— (a) in selling items under this section, to set prices that, in the opinion of the CE, reflect the costs associated with selling the items; and (b) if a surplus arises from time to time in selling items under this section, to retain the surplus and deposit it in the account established under section 32A. 32A—Prisoner Amenity Account (1) The Prisoner Amenity Account is established. (2) The CE will be responsible for the administration of the account. (3) The account will consist of— (a) any surplus deposited from time to time under section 32(3)(b); and (b) any other money that the CE thinks may be appropriately deposited in the account from time to time. (4) The CE may apply any money standing to the credit of the account towards the provision of amenities to prisoners. 33—Prisoners' mail (1) Subject to this section— (a) prisoners are entitled to receive and send letters; and (b) letters sent to prisoners must be handed to them as soon as reasonably practicable after delivery to the institution; and (c) letters sent by prisoners must be forwarded as soon as reasonably practicable. (3) A letter sent to or by a prisoner contravenes this section if it contains— (a) a threat of a criminal act; or (b) a proposal or plan to commit a criminal act, or to do anything towards the commission of a criminal act; or (c) an unlawful threat or demand; or (d) an incitement to violence, or material likely to inflame violence; or (e) plans for any activity prohibited by the regulations; or (f) an item prohibited by the regulations; or (g) a sum of money, whether in cash or otherwise, or a request for any such sum, where the prior permission of the CE has not been obtained in respect of that sum or request; or (h) a request for any goods, without the prior permission of the CE; or (i) a statement that is in code; or (j) material relating to, or that constitutes, work by the prisoner that the prisoner is not authorised to perform; or (k) material of a kind prohibited by the regulations or the CE. (3a) A letter contravenes this section if the letter is sent, or proposed to be sent, by a prisoner to— (a) if, in relation to an offence for which the prisoner was imprisoned, there is a registered victim—the registered victim; or (b) any other victim of an offence for which the prisoner was imprisoned; or (c) a person involved, or who the CE suspects was involved, in the commission of an offence for which the prisoner was imprisoned. (4) The CE may cause all letters sent to or by prisoners to be opened and examined by an authorised officer for the purpose of determining whether any letter contravenes this section. (6) An authorised officer may, for the purpose of perusing a letter opened by the authorised officer that is in a language other than English, cause the letter to be translated. (7) A letter sent by a prisoner— (aaa) to the Independent Commissioner Against Corruption or the Office for Public Integrity; or (a) to the Ombudsman; or (b) to a Member of Parliament; or (ba) to the Health and Community Services Complaints Commissioner; or (bb) to the Parole Administrative Review Commissioner; or (c) to a Visiting Tribunal; or (ca) to an official visitor of the correctional institution; or (d) to a nominated legal practitioner of the prisoner at the practitioner's business address, cannot be opened pursuant to this section. (7a) Nothing in this section empowers an authorised officer to open a declaration vote sent by a prisoner to a returning officer. (8) Where an authorised officer is satisfied on reasonable grounds that a letter sent to a prisoner is from the Independent Commissioner Against Corruption, the Office for Public Integrity, the Ombudsman, a Member of Parliament, a Visiting Tribunal, an official visitor or a nominated legal practitioner of the prisoner sent from the practitioner's business address, the authorised officer must not open that letter. (10) Where a letter sent to a prisoner is found to contravene this section, the CE may— (a) in the case of a letter— (i) hand it over to the prisoner; or (iii) furnish a copy of it to the prisoner with any material that contravenes this section deleted from the copy, provided that the letter is handed over to the prisoner on discharge from prison; or (iv) retain it as evidence of an offence, provided that a copy of it, or an expurgated copy of it, is handed over to the prisoner as soon as reasonably practicable, or on discharge from prison; and (b) in the case of a prohibited item found in a letter— (i) cause the item to be destroyed; or (iii) retain it as evidence of an offence; or (iv) return it to the sender; or (v) dispose of it in such other manner as the CE thinks fit; and (c) in the case of a sum of money, subject to subsection (10a)— (i) hold the money for as long as may be necessary for the purposes of ascertaining the identity of the sender and the circumstances of the payment; or (ii) credit the whole, or part, of it to the prisoner; or (iii) hold the whole, or part, of it on behalf of the prisoner and pay it over to the prisoner in accordance with this Act on discharge from prison; or (iv) return the whole, or part of it to the sender; or (v) if the prisoner is not lawfully entitled to the money, and the identity or whereabouts of the sender cannot be ascertained—pay the money to the Treasurer as unclaimed money for the purposes of the Unclaimed Money Act 2021; or (vi) retain it as evidence of an offence. (10a) If a sum of money referred to in subsection (10)(c) is in a letter sent to a prisoner by a person who has been released from prison within a period of 12 months before the date of receipt of the letter, the CE must return the money to the sender. (11) Where a letter sent by a prisoner is found to contravene this section, the CE may— (a) in the case of a letter— (i) return it to the prisoner; or (ii) retain it as evidence of an offence, provided that a copy is furnished to the prisoner at some time prior to any hearing in respect of the offence; and (b) in the case of a prohibited item found in a letter— (i) cause the item to be destroyed; or (iii) retain it as evidence of an offence; or (iv) return it to the prisoner; or (v) forward it to the intended recipient; or (vi) dispose of it in such other manner as the CE thinks fit; and (c) in the case of a sum of money— (i) hold it for as long as may be necessary for the purposes of ascertaining the circumstances of the payment; or (ii) retain it as evidence of an offence; or (iii) pay it into the General Revenue of the State; or (iv) disburse it in such other manner as the Minister may direct. (12) The CE must advise a prisoner in such manner as the CE thinks fit of any action taken under this section in respect of a letter, or anything contained in a letter, sent to or by the prisoner. (13) An authorised officer must not, otherwise than as required by law or in the performance of duties, disclose to any other person the contents of any letter perused pursuant to this section. (14) In this section— authorised officer means an officer or employee of the Department authorised by the CE for the purposes of this section, not being a person who is engaged in a position involving substantial day-to-day contact with prisoners; nominated legal practitioner, in relation to a prisoner, means a legal practitioner that the prisoner has, by notice in writing given to the CE, nominated as a legal practitioner that represents the prisoner, provided that a prisoner may only have up to 4 nominated legal practitioners at any particular time. 33A—Prisoners' goods (1) A prisoner is not entitled to receive any goods from a person outside the prison unless the prisoner has the permission of the CE to do so. (2) A prisoner is not entitled to send, supply or give any goods to a person (whether inside or outside of the prison) unless the prisoner has the permission of the CE to do so. (3) The CE may cause all goods, and all parcels apparently containing goods, sent or given to a prisoner, or sent, supplied or given by a prisoner, to be examined. (4) If goods sent or given to a prisoner consist of items prohibited by the regulations or are goods in respect of which permission is not given, the CE has an absolute discretion to deal with or dispose of the goods as he or she thinks fit (for example, by returning them to the sender or donor, selling, destroying or storing them, handing them over to a member of the prisoner's family). (5) If goods sent, supplied or given by a prisoner consist of items prohibited by the regulations or are goods in respect of which permission is not given, the CE has an absolute discretion to deal with or dispose of the goods as he or she thinks fit (for example, by returning them to the prisoner, selling, destroying or storing them). (6) Goods that consist of items prohibited by the regulations, or that a person is prohibited by some other Act or law from possessing, must be destroyed unless they are to be kept as evidence. (7) The Minister may fix charges for the storage of goods on behalf of prisoners. (8) Any costs incurred in dealing with or disposing of goods (including storage charges) may be deducted by the CE from any account (other than a resettlement account) held on behalf of the prisoner under this Act. (9) If a prisoner fails, on being discharged from prison, to take any goods that have been stored in the prison on his or her behalf, the CE may deal with or dispose of the goods as he or she thinks fit. (10) Any proceeds from the sale of goods under this section will (after deduction of the costs of storage and sale) be credited to the prisoner's account or, if the prisoner has been discharged and his or her whereabouts are known, refunded to the prisoner. (11) Money not refunded under subsection (10) will be dealt with in accordance with the Unclaimed Money Act 2021. 34—Prisoners' rights to have visitors (1) Subject to this section, a prisoner (other than a remand prisoner) is, while in a correctional institution, entitled to be visited by a person, or a number of persons not exceeding the prescribed number, on one occasion, or such greater number of occasions as may be prescribed, in each period of two weeks. (2) Subject to this section, a remand prisoner is entitled to be visited by a person, or a number of persons not exceeding the prescribed number, on three occasions, or such greater number of occasions as may be prescribed, in each week. (3) The CE may, if of the opinion that special reasons exist for doing so— (a) permit a prisoner to be visited on any further occasion than is provided by or under this Act; or (b) debar a particular person from visiting a prisoner for such period as the CE thinks fit, or until further order of the CE. (4) The following restrictions apply to a visit to a prisoner (including a remand prisoner) under this section: (a) a person may not visit a prisoner unless the person provides such evidence as the CE thinks appropriate as to the person's identity; (b) a person who visits a prisoner may see and speak with the prisoner but is not permitted to touch the prisoner, unless the visit is part of a contact visiting program approved by the CE; (c) a person who has been released from prison may not, without the approval of the CE, within a period of 12 months of the person's release from prison, visit a prisoner; (d) a person under the age of 18 years may not, without the approval of the CE, visit a prisoner if the prisoner has ever been found guilty of a child sexual offence; (e) a person who the CE believes on reasonable grounds is a member of a criminal organisation, or associates with, or has associated with, a member of a criminal organisation, may not visit a prisoner without the approval of the CE. 35—Prisoners' rights to access to legal aid and legal services (1) A prisoner is not by virtue of imprisonment debarred from the benefit of any Act or law relating to legal aid. (2) Where a prisoner is visited by a legal practitioner for the purpose of rendering any legal services, that visit will not be held to be a visit for the purposes of section 34. 35AA—Assistance to make certain complaints If a prisoner informs the manager of a correctional institution that the prisoner wishes to make a complaint about— (a) corruption in public administration (within the meaning of the Independent Commission Against Corruption Act 2012); or (b) misconduct in public administration or maladministration in public administration (both within the meaning of the Ombudsman Act 1972), the manager of the correctional institution must take such steps as are necessary to facilitate the making of a complaint (including providing facilities to enable the prisoner to prepare the complaint and enclose and seal it in an envelope and delivering the sealed envelope to the Commission or Ombudsman without undue delay). 35A—Power to monitor or record prisoner communication (1) Subject to this section, the CE may monitor or record a communication between a prisoner and another person. (2) A party to a communication that may be monitored or recorded under this section is not required to be informed of the fact that the communication may be monitored or recorded, unless the communication occurs in circumstances (if any) prescribed by the regulations. (3) The CE must not monitor or record a communication between a prisoner and— (a) a legal practitioner who represents the prisoner, or who is communicating with the prisoner for the purpose of determining whether or not to represent the prisoner; or (ab) the Independent Commissioner Against Corruption; or (b) the Ombudsman; or (c) the Health and Community Services Complaints Commissioner; or (d) a Member of Parliament; or (e) a Visiting Tribunal; or (f) an official visitor of the correctional institution in which the prisoner is detained; or (g) a person or body of a class designated by the CE. (4) The exemption under subsection (3) applies only if the CE has, before the communication occurs, authorised the communication. (5) If a communication monitored or recorded under this section reveals information about an offence, the CE must give the information to the Commissioner of Police. (5a) Despite any other Act or law (but without limiting subsection (5)), a communication monitored or recorded under this section or evidence or information revealed by such a communication may be provided to, and may be received and used by— (i) law enforcement agencies; and (ii) prosecution authorities; and (iii) any other person or body prescribed by the regulations, for the purposes of— (iv) any criminal investigation or proceedings; or (v) proceedings for the imposition of a penalty; or (vi) national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth); and (b) the Independent Commissioner Against Corruption and the Office for Public Integrity for the purposes of any investigation or action in relation to suspected corruption, misconduct or maladministration in public administration. (5b) Terms and expressions used in subsection (5a) and in the Independent Commissioner Against Corruption Act 2012 have the same respective meanings in that subsection as they do in that Act. communication includes conversation and a message, and any part of a conversation or message, whether— (a) in the form of— (i) speech, music or other sounds; or (ii) data; or (iii) text; or (iv) visual images, whether or not animated; or (v) signals; or (b) in any other form or in any combination of forms. 36—Power to keep prisoner apart from other prisoners (1) A prisoner must not be kept separately and apart from all other prisoners in the correctional institution except in accordance with this section. (2) The CE may direct that a prisoner be kept separately and apart from all other prisoners in the correctional institution if the CE is of the opinion that it is desirable to do so— (a) in the interests of the proper administration of justice where an investigation is to be conducted into an offence alleged to have been committed by the prisoner; or (b) in the interests of the safety or welfare of the prisoner; or (c) in the interests of protecting other prisoners; or (d) in the interests of security or good order within the correctional institution. (3) Subject to this section, a direction under subsection (2) has effect for such period, not exceeding 30 days, as may be specified in the direction. (4) A direction under subsection (2)(b), (c) or (d) may be extended by the CE for such period, not exceeding 30 days, as may be specified by the CE, if the CE is satisfied that it is desirable to do so on a ground referred to in subsection (2)(b), (c) or (d). (4a) Nothing in subsection (4) is to be taken to prevent the CE from granting more than 1 extension in respect of a direction under subsection (2)(b), (c) or (d). (5) A direction cannot be given more than once pursuant to subsection (2)(a) in respect of the incident giving rise to the alleged offence. (6) A direction given under subsection (2) or an extension— (a) must be in writing; and (b) may be revoked at any time by the CE. (7) A copy of a direction given under subsection (2) or an extension must be served personally on the prisoner within 24 hours of being given under subsection (2) or issued under subsection (4). (8) Despite the fact that a direction under subsection (2) or an extension is in force in respect of a prisoner, the CE may permit the prisoner to have contact with such other prisoners on such occasions as the CE thinks fit. (9) If, under subsection (2), the CE gives a direction— (a) that a prisoner be kept separately and apart for a period exceeding 5 days; or (b) that will result in a prisoner being kept separately and apart for a period exceeding 5 consecutive days, or an aggregate of 5 days within any 10 day period, the CE must, as soon as reasonably practicable after giving the direction, provide the Minister with a report of the circumstances relating to the direction. (9a) If the CE issues an extension the CE must, as soon as is reasonably practicable after issuing the extension, provide the Minister with a report of the circumstances relating to the extension. (10) On receiving a report under subsection (9) or (9a), the Minister may review the matter and may confirm or revoke the direction or extension (as the case requires). (11) In this section— extension means an extension issued by the CE under subsection (4). 36A—Restraints to be used on prisoners in certain circumstances (1) An officer or employee of the Department may use restraints on a prisoner— (a) if the prisoner is being transferred from the place in which the prisoner is being detained to a place where the prisoner is to be detained; or (b) if the prisoner is on leave of absence and is required to be in the custody of, and be supervised by, 1 or more officers or employees of the Department authorised by the Minister under section 27(2)(a)(i); or (c) in any other circumstances determined by the CE. (2) An officer or employee of the Department who uses restraints on a prisoner under this section must comply with any requirements determined by the CE. 37—Search of prisoners (1) The CE may cause a prisoner or a prisoner's belongings to be searched in any of the following cases: (a) where the prisoner enters a correctional institution or moves from one part of the institution to another; (b) where the CE has reasonable cause to suspect that the prisoner has in his or her possession in the correctional institution an item prohibited by the regulations; (c) where the prisoner is required pursuant to this Act to provide a biological sample for analysis. (1a) The CE may also cause a prisoner's belongings to be searched if, for the purpose of detecting items prohibited by the regulations, the CE— (a) proposes that the belongings of all prisoners within the correctional institution, or a part of the institution, be searched; or (b) causes the random selection of prisoners from the whole, or a part, of the institution for the purposes of such a search and the prisoner falls within the selection. (2) The following provisions apply to the search of a prisoner: (a) those present at any time during the search when the prisoner is naked, except a medical practitioner, must be of the same sex or gender identity as the prisoner; (b) at least two persons, apart from the prisoner, must be present at all times during the search when the prisoner is naked; (c) for the purposes of the search, the prisoner may be required— (i) to open his or her mouth; (ii) to strip; (iii) to adopt particular postures; (iv) to do anything else reasonably necessary for the purposes of the search, and if the prisoner does not comply with such a requirement reasonable force may be applied to secure compliance. (2a) A prisoner may waive the requirement under subsection (2)(a) that those present during a search (other than a medical practitioner) be of the same sex or gender identity as the prisoner. (3) Force must not be applied to open a prisoner's mouth except by or under the supervision of a medical practitioner. (4) Nothing may be introduced into an orifice of a prisoner's body for the purposes of a search except by a medical practitioner. (5) A search must be carried out expeditiously and undue humiliation of the prisoner must be avoided. (6) The annual report submitted under this Act by the CE in respect of a financial year must include particulars of— (a) the number of searches conducted under subsection (1a) in respect of each correctional institution during the year; and (b) the number and general description of items prohibited by the regulations detected in the institution during those searches. 37AA—Drug testing of prisoners (1) The CE may require a prisoner to undergo a drug test in any of the following circumstances: (a) on the initial admission of the prisoner to a correctional institution; (b) on the prisoner returning to a correctional institution after being absent; (d) if, for the purpose of ascertaining the incidence of unlawful drug use in a correctional institution, the manager— (i) proposes that all prisoners within the institution, or a part of the institution, undergo a drug test; or (ii) causes the random selection of prisoners from the whole, or a part, of the institution to undergo a drug test and the prisoner falls within the selection; (e) in any other circumstance that the CE thinks fit. (1a) The manager of a correctional institution may require a prisoner to undergo a drug test— (a) if the manager reasonably suspects that the prisoner has unlawfully used a drug; or (b) in any other circumstance that the CE thinks fit. (2) For the purposes of this Act, a prisoner uses a drug if the prisoner— (a) consumes or smokes, or administers to himself or herself, the drug; or (b) permits another person to administer the drug to him or her. (3) In proceedings for an offence against this Act or any other Act— (a) if the proceedings relate to the unlawful use of alcohol—a certificate apparently signed by an authorised officer and certifying— (i) that the prisoner named in the certificate submitted to an alcotest on a day and at a time stated in the certificate; and (ii) that the alcotest was carried out in conformity with the requirements of this Act using apparatus of a kind approved by the Governor under the Road Traffic Act 1961 for the purposes of carrying out alcotests; and (iii) that the alcotest produced a reading of a specified level of alcohol in the prisoner's blood, is, in the absence of proof to the contrary, proof of the matters so certified; (b) if the proceedings relate to the unlawful use of any other drug— (i) a certificate apparently signed by an authorised officer and certifying— (A) that the prisoner named in the certificate submitted to a specified prescribed procedure on a day and at a time stated in the certificate; and (B) that the procedure was carried out in conformity with the requirements of this Act; and (C) that the biological sample obtained as a result of the procedure was assigned a specified identifying number; and (ii) a certificate apparently signed by an analyst and certifying that the drug specified in the certificate was found to be present in the biological sample assigned that number, is, in the absence of proof to the contrary, proof of the matters so certified. authorised officer means an officer or employee of the Department authorised by the CE for the purposes of this section.