Corrections Act 1986

The Act has a broad reach. Its primary subjects are:

• Prisoners (defined in s.3(1) as persons deemed to be in the legal custody of the Secretary under Part 1A). This includes sentenced prisoners, those on remand, and persons subject to Commonwealth continuing detention orders or Serious Offenders Act orders when detained in prison.

• Offenders subject to community correction orders, parole, or other correctional orders (s.3(1) definition of “correctional order” and “offender”).

• Monitored persons under the Serious Offenders Act 2018 who are subject to supervision orders containing conditions requiring attendance at community corrections centres or visits from officers (Part 9B).

• The Secretary to the Department of Justice and Community Safety, who bears overarching responsibility for monitoring performance of all correctional services (s.7) and exercises numerous specific powers, including delegation (s.8), nomination of Governors (s.25), and management of prisoner compensation quarantine funds (Part 9C).

• The Commissioner, who assesses performance, performs functions under the Serious Offenders Act, and may authorise employees to exercise certain removal powers (ss.8A, 79M, 104AAB).

• The Adult Parole Board (established by s.61), whose membership, procedure, and decision-making criteria are prescribed in detail. The Board’s Serious Violent Offender or Sexual Offender Parole division exercises exclusive jurisdiction over certain high-risk cases (s.74AAB).

• The Post Sentence Authority, which directs conditions on supervision orders that engage Parts 9B and 9E.

• Prison officers, community corrections officers, escort officers, security officers, and police custody officers, all of whom are subject to specific duties, powers, and immunities (Parts 5, 9, 9A, and Divisions 1A and 1B of Part 8).

• Victims, who are entitled to notification, inclusion on the victims register (ss.30A–30I), and the opportunity to make victim submissions to the Board (ss.74A, 74B). Victims also have priority access to prisoner compensation quarantine funds (Part 9C).

• Contractors and sub-contractors engaged to provide correctional services under Parts 2A and 9A, who must comply with minimum standards, reporting, and indemnity requirements.

• Independent prison visitors, lawyers, judges, magistrates, and other authorised visitors whose access is regulated by Division 2 of Part 6.

• The public, who are protected by the paramount consideration of community safety in parole decisions (s.73A) and by the terrorism risk provisions inserted in 2018.

The Act therefore creates a complex web of rights, duties, and liabilities that extends from the individual prisoner to the highest levels of executive government and includes third-party service providers and victims.

Prisoners’ rights are expressly enumerated in s.47(1). These include the right to at least one hour in the open air daily (weather permitting), adequate food and clothing, reasonable medical and dental care, access to religious practice, one half-hour visit per week, and annual classification review. Prisoners have a qualified right to send and receive correspondence without censorship (ss.47B–47D), subject to security exceptions. Change of name and acknowledgement of sex applications require prior approval (Divisions 5 and 6 of Part 6). Prisoners may not be subjected to disciplinary proceedings without proper investigation and hearing (Part 7).

Officers’ duties are set out throughout the Act. Prison officers must take all reasonable steps for the security and welfare of prisoners (s.20(1)–(2)), report immediately any matter that might jeopardise security (s.22), and are subject to the Governor’s directions (s.19). Use of force is permitted only where necessary and must be reported (s.23). Community corrections officers are subject to the Regional Manager’s directions (s.89) and must report on offenders as required (s.90). All officers are protected from personal liability when acting in good faith (e.g. s.55O, s.78T, s.104I(4)).

The Secretary’s duties include monitoring performance of all correctional services (s.7(1)), preparing minimum standards for contractors (s.9E), maintaining the victims register (s.30C), and managing prisoner compensation quarantine funds (Part 9C). The Secretary must ensure that prisoners are not accommodated with sentenced prisoners under Commonwealth detention orders except in limited circumstances (s.6K(3)–(4)).

The Adult Parole Board’s duties are prescribed in ss.69–74AAC. The Board must give paramount consideration to the safety and protection of the community (s.73A). When terrorism risk information is provided, the Board must determine whether there is a risk that the prisoner will commit a terrorism or foreign incursion offence and, if so, may only grant parole in exceptional or compelling circumstances (s.74AAC). The Board must also consider victim submissions (s.74B) and, in restricted prisoner cases, whether a declaration under s.74AAG should be made.

Victims’ rights include the right to be notified of parole decisions (s.30A(1A)–(1D)), to make submissions to the Board (s.74A), and to have priority access to prisoner compensation quarantine funds (Part 9C). Victims may request that their details not be disclosed if there is a risk of endangerment (s.30D).

Contractors’ duties include compliance with all relevant legislation, performance standards, reporting, and indemnities (ss.8C, 9AB). Contractors must provide monitors with unfettered access (s.9D) and are subject to emergency intervention powers (s.8F).

These duties and rights are not absolute; each is expressly qualified by considerations of security, good order, and public safety. The Act repeatedly emphasises that powers must be exercised only where “reasonably necessary” or where the decision-maker “believes on reasonable grounds”.

The Act creates a hierarchy of offences and disciplinary measures. Prison offences (s.50) are dealt with internally by disciplinary officers and Governors, with penalties including reprimand, fine up to 1 penalty unit, or withdrawal of privileges for up to 14 days per offence (s.53(4)). More serious conduct may be referred for criminal prosecution.

Breach of a custodial community permit carries up to 3 years’ imprisonment (s.58). Breaching a term or condition of parole is an offence punishable by 3 months’ imprisonment or 30 penalty units (s.78A). Failure to comply with a notice to produce or attend before the Board attracts 30 penalty units or 3 months’ imprisonment (s.71H). Publishing victims-register information in the media without authorisation carries 60 penalty units (natural person) or 1200 penalty units (body corporate) (s.30I).

Contravention of the prohibition on operating a remotely piloted aircraft near a prison is punishable by 2 years’ imprisonment (s.32A(1)). Escape from custody under an interstate permit carries up to 7 years’ imprisonment (s.84E).

Enforcement mechanisms include:

• Internal disciplinary hearings (Part 7).
• Cancellation of parole by the Board (s.77), with automatic cancellation for certain serious offences committed on parole (s.77(6)).
• Arrest without warrant by prison officers, escort officers, or police (ss.32(4), 77B, 78B, 79I, 84D, 108).
• Use of reasonable force, including discharge of firearms in prescribed circumstances (ss.23A, 55EB, 55EC).
• Seizure of prohibited items (ss.46, 78J, 101, 104D).
• Electronic monitoring and testing for alcohol or drugs (ss.30, 76A, 99A, 78P).

The Act contains numerous offence provisions with graduated penalties, reflecting the need to maintain internal discipline while reserving the most serious sanctions for conduct that threatens security or public safety.

The Act is not a standalone code. It expressly cross-references and is subject to:

• The Sentencing Act 1991, which supplies the definitions of many “correctional orders” (s.3(1)) and governs the imposition of community correction orders, parole periods, and pre-sentence reports.
• The Serious Offenders Act 2018, which interacts with the Act at multiple points. Supervision orders may require attendance at community corrections centres (Part 9B) or visits from officers. The Post Sentence Authority’s directions engage the Board’s parole functions. Terrorism risk information provisions (ss.3A–3B, 74AAC) mirror federal counter-terrorism legislation.
• The Crimes Act 1958 (ss.15A–17, 21A, 63A, 75–77, 197A, etc.) supplies the list of “serious violent offences” and “sexual offences” that trigger stricter parole scrutiny.
• Federal legislation, including the Criminal Code (terrorism offences), the Migration Act 1958, and the National Disability Insurance Scheme Act 2013, which are expressly referenced in information-sharing provisions (s.104ZY).
• The Bail Act 1977, Children, Youth and Families Act 2005, Family Violence Protection Act 2008, Personal Safety Intervention Orders Act 2010, and Mental Health and Wellbeing Act 2022, all of which are listed in the definition of “Corrections-related legislation” (s.104ZX) and trigger information-sharing authorisations.
• The Public Administration Act 2004, which governs employment of the Secretary, Commissioner, and many officers (ss.8, 12).
• The Births, Deaths and Marriages Registration Act 1996, which is expressly overridden in relation to change of name and acknowledgement of sex applications by prisoners (Divisions 5 and 6 of Part 6).

The Act also interacts with the common law of false imprisonment, the Charter of Human Rights and Responsibilities Act 2006 (expressly disapplied in certain parole contexts: ss.74AAA(9)–(10), 74AB(4)–(5), 74AC(9)–(10)), and federal privacy and data-protection legislation (s.104ZY(2)(fa)).

Section 5 provides that the Act binds the Crown in all capacities “as far as the legislative power of the Parliament permits”, while s.111A limits the Supreme Court’s jurisdiction in relation to certain liability and compensation provisions.

The Act has been amended more than 160 times since 1986. Key recent changes illustrate evolving policy priorities:

• 2013–2014 parole reforms (Corrections Amendment (Parole Reform) Act 2013 and Corrections Amendment (Further Parole Reform) Act 2014) introduced the Serious Violent Offender or Sexual Offender Parole division (s.74AAB) and required the Board to give paramount consideration to community safety (s.73A). These changes responded to high-profile cases in which serious offenders were released on parole and re-offended.

• 2016–2018 terrorism amendments (Justice Legislation Amendment (Parole Reform and Other Matters) Act 2016, Corrections Legislation Miscellaneous Amendment Act 2017, Justice Legislation Amendment (Terrorism) Act 2018) inserted definitions of “terrorism record” and “terrorism risk information” (ss.3A–3B), required the Board to assess risk of terrorism or foreign incursion offences (s.74AAC), and imposed stricter tests for prisoners with terrorism records or who are charged with such offences (ss.77(3A)–(3H)). These changes were driven by the need to align Victorian corrections with national counter-terrorism strategies following several high-profile incidents.

• 2018 Serious Offenders Act integration replaced the Serious Sex Offenders (Detention and Supervision) Act 2009, expanded the Board’s interaction with the Post Sentence Authority, and updated definitions of “sexual offence” and “serious violent offence”.

• 2019 amendments (Justice Legislation Amendment (Serious Offenders and Other Matters) Act 2019) refined terrorism risk information rules, expanded victims’ notification rights, and clarified restricted prisoner declaration procedures.

• 2023 amendments (Corrections Amendment (Parole Reform) Act 2023) introduced restricted prisoner declarations (s.74AAG) and additional conditions for parole where the body of a deceased victim has not been located (s.74AABA). These responded to public concern about offenders refusing to disclose the location of victims’ remains.

Each wave of amendment has been justified by reference to community safety, victim rights, and alignment with contemporary risk-assessment practices. The cumulative effect has been to transform the Act from a relatively straightforward prison-management statute into a complex risk-management instrument that interfaces with federal counter-terrorism, mental health, and post-sentence supervision regimes.

The Act has generated significant litigation, primarily in the Supreme Court and Court of Appeal.

• Parole decisions and natural justice. In R v. Parole Board; Ex parte Smith and subsequent cases, courts have held that the Board is not bound by the rules of natural justice (s.69(2)) but must nevertheless afford procedural fairness where a prisoner’s legitimate expectations are engaged. The insertion of terrorism risk provisions has led to challenges concerning the use of closed-source intelligence and the weight to be given to “association” evidence (see note to s.3B).

• Restricted prisoner declarations. The 2023 amendments creating restricted prisoner declarations (s.74AAG) have already generated controversy. Prisoners subject to such declarations have argued that the power constitutes additional punishment and engages Charter rights. The Act expressly disapplies the Charter in several analogous contexts (e.g. ss.74AAA(9)–(10)), but the courts have yet to rule definitively on the validity of the new regime.

• Electronic monitoring and privacy. Challenges to the lawfulness of continuous GPS tracking under ss.30 and 78P have focused on whether the intrusion is proportionate. Courts have generally upheld the provisions where the Board can demonstrate a rational connection to community safety.

• Compensation quarantine funds. Part 9C has been criticised for effectively creating a de facto victims’ compensation scheme funded by individual prisoners rather than the state. Constitutional arguments based on acquisition of property on other than just terms have been raised but not yet resolved at appellate level.

• Use of force and restraint. Cases arising from ss.23, 55E, 78H, and 104AH have examined the limits of “reasonable force”. The courts have emphasised that the belief on reasonable grounds must be both subjectively held and objectively justifiable.

Controversies have also arisen in the political arena. The repeated tightening of parole criteria has been criticised by prisoner-advocacy groups as punitive and contrary to rehabilitation principles. Conversely, victims’ organisations have argued that the Board still grants parole too readily in high-risk cases. The 2018 terrorism amendments were controversial for their reliance on intelligence that may not be tested in open hearing.

Most practitioners are aware of the broad discretion conferred on the Board and the Secretary, but several less obvious traps exist:

• Terrorism risk information is not binary. Even where a prisoner has no formal “terrorism record”, the Board may still be provided with terrorism risk information under s.70(4). The obligation to assess risk of a terrorism or foreign incursion offence then arises (s.74AAC). The note to s.3B warns that decision-makers cannot have regard to “association” evidence unless they are satisfied the prisoner knew the relevant facts. Failure to make this explicit finding can render a decision vulnerable to judicial review.

• The “imminent danger of dying” exception is narrowly construed. Sections 74AAA(5), 74AB(3), 74AC(8), and 74AAG(8) permit parole only where the Board is satisfied the prisoner is in imminent danger of dying or is seriously incapacitated and no longer has the physical ability to do harm. The Board has interpreted “imminent” strictly; medical evidence showing a prognosis of months rather than days has been held insufficient.

• Electronic monitoring conditions survive variation or suspension of the underlying order. Once a requirement for electronic monitoring is attached under s.74(5A), the statutory conditions in s.74(5A)(a)–(d) continue to apply until the device is lawfully removed. A prisoner who damages monitoring equipment after the underlying parole condition is varied may still commit an offence under s.74(5C).

• Quarantine funds survive sentence expiry. A prisoner compensation quarantine fund continues for the full quarantine period even if the prisoner’s sentence expires during that period. Victims have 12 months from publication of the s.104Y notice (plus any extension arising from notified proceedings) to commence action.

• Protective services officers’ powers are location-specific. A protective services officer may exercise powers under Part 9A only at or in the vicinity of a designated place (s.104AB, s.55P). An arrest effected outside that vicinity may be unlawful.

• The SVOSO division’s jurisdiction is exclusive but its reasoning is not. Although only the SVOSO division may grant parole to a prisoner who meets the criteria in s.74AAB(2), the reasoning of the referring division is not binding. The SVOSO division may reach a different conclusion provided it gives adequate reasons.

• Section 6K(3) is not a blanket prohibition. A person subject to a Commonwealth continuing detention order may be accommodated with sentenced prisoners if it is reasonably necessary for rehabilitation, treatment, work, education, or general socialisation, or for the safe custody or welfare of the person or other prisoners, or if the person elects to be so accommodated.

These “gotchas” frequently catch practitioners who assume the Act’s plain language reflects its practical operation. The interplay between statutory text, ministerial guidelines, and Board policy creates numerous hidden reefs.

Compliance with the Act requires a multi-layered approach:

For correctional agencies and officers:

• Maintain comprehensive records of all searches, use of force, and seizures (ss.46, 55M, 78M, 101, 104D, 104DD).
• Ensure every direction given to a prisoner or offender is documented, justified by reference to security, good order, or safety, and communicated clearly.
• When providing terrorism risk information to the Board, include the statutory note required by s.3B and ensure any “association” evidence is accompanied by evidence that the prisoner knew the relevant facts.
• For electronic monitoring, obtain written consent where possible and document any refusal; removal of devices must follow the procedure in ss.79L–79M or 104AAA–104AAB.

For legal practitioners advising prisoners:

• Advise clients that parole is not a right; the Board must give paramount consideration to community safety (s.73A).
• In terrorism-related cases, obtain and scrutinise all material provided to the Board under s.70(4). Challenge any reliance on “association” evidence that does not satisfy the knowledge threshold in ss.74AAC(4) and 77(3G).
• When preparing change of name or acknowledgement of sex applications, obtain the required written approval (ss.47I, 47P, 79C, 79HD) before lodging with the Victorian Registrar.
• For victims’ compensation claims, lodge notice under s.104ZE(1) within the initial 12-month quarantine period; failure to do so may bar recovery from the fund.

For victims and their representatives:

• Apply for inclusion on the victims register as soon as possible after sentencing (s.30B). Provide nominee details if desired (s.30D).
• Make victim submissions addressing the specific matters listed in s.74A(2) and any proposed conditions.
• Monitor the Government Gazette for s.104Y notices and lodge claims under s.104ZE(1) promptly.

For contractors:

• Ensure all agreements contain the mandatory clauses required by ss.8C and 9AB.
• Maintain minimum standards and provide monitors with unfettered access (s.9D).
• Implement robust policies for emergency intervention (s.8F) and reporting of incidents.

Board members and staff:

• Document every step in the parole decision process, particularly the assessment of terrorism risk information and the application of the “exceptional circumstances” or “compelling reasons” thresholds.
• When a restricted prisoner is involved, obtain the Secretary’s report under s.74AAF and expressly consider each of the matters in s.74AAG(5).
• Ensure reasons for decision address the statutory criteria in ss.73A, 74, 74AAB–74AAC, and 74AAG.

Compliance is not merely a matter of following the letter of the Act; it requires an understanding of the Board’s policies, the Secretary’s guidelines, and the evolving jurisprudence on procedural fairness, proportionality, and the Charter. Regular training, audit of decision records, and early engagement with victims are essential to minimise litigation risk and maintain public confidence in the corrections system.