Practitioners need to be aware of several traps in the Prisons Act 1981. First, the exclusion of the rules of natural justice for permit decisions under Part IIIA and for visitor bans under s 66(9) is explicit and broad. The CEO may refuse to issue or may suspend or revoke a permit without any duty of procedural fairness, even where the permit-holder is a contract worker whose livelihood depends on it (ss 15S(2), 15U(3)). This is a significant departure from ordinary administrative law. The permit can be revoked if the CEO thinks it ought not to have been issued, which creates a low threshold. There is no statutory right of review or appeal against permit decisions.
Second, the definition of “prison officer” in Part X (s 96) is narrow: it only covers persons engaged under s 13(1). This means that officers appointed under s 6(3) (including superintendents and other officers) are still covered by the Part X removal regime (see definition of “prison officer” in s 99 includes a superintendent or other officer appointed under s 6(3)), but the appeal provisions in Subdivision 3 apply to any prison officer as defined in s 99. However, the management of industrial action under s 114 applies to “prison officer” as defined in s 114(12), which cross-references Part X but with a different application. The careful reader must track which definition applies to each provision.
Third, the Act’s directory provisions can create traps. Section 16(3) states that the requirement to confine a prisoner only in a prison is directory only, and a breach does not affect the lawfulness of custody. This means that holding a prisoner outside a prison does not automatically render the detention unlawful, even if the Act has not been complied with. Similarly, s 47(4) states that the requirement to give a warning before using a firearm is directory only. These provisions insulate the State from civil liability or habeas corpus challenges based on technical non-compliance.
Fourth, the onus of proof is reversed in several criminal provisions. In proceedings under s 52(1) (unauthorised entry or communication), if the person has done an act that would contravene the section unless done with permission, the onus is on the person charged to prove that they had permission (s 52(2)). The same reversed onus applies to removing articles from prison under s 50(2) (s 50(7)). This is a significant departure from the usual criminal burden.
Fifth, prison officers should note that they can be required to give information or answer questions under s 9 (inquiry by reporting officer) and are not excused on the ground of self-incrimination (s 9(4)). However, the information given under requirement is not admissible in evidence against them except in proceedings for failing to give information or giving false information (s 10). If they give information voluntarily (without being required), it may be admissible (s 9(5)(b)). The reporting officer must clearly distinguish a requirement from a request (s 9(6)). Failure to comply with the advice requirement under s 9(5) is a defence to proceedings under s 10 (s 10(3)).
Sixth, the provisions on mandatory blood or body sample taking under s 46A and the aggravated offence for refusing to submit under s 70(i) operate without any requirement for a warrant or court order. The CEO’s suspicion on reasonable grounds of a transfer of bodily fluid from prisoner to prison officer is sufficient to authorise use of force to take a sample. The regulations may regulate disclosure of results, but the Act itself gives the prisoner no right to refuse.
Seventh, the interaction between Part IX (prisoner wellbeing) and Part VII (prison offences) can be tricky. A prisoner who fails to return from an absence permit commits a minor prison offence (s 69(j)), but if the same conduct amounts to escape, it becomes an aggravated offence (s 70(c)). The CEO’s power to revoke an absence permit at any time (s 83B) allows the permit to be cancelled even without breach, potentially leaving the prisoner in a situation where they are technically absent without permit and liable to be returned to prison by an officer under s 84. The officer’s opinion that a breach has occurred or is likely need only be a subjective opinion.
Eighth, visitors should be aware that they can be searched and examined without any suspicion of wrongdoing, merely because the superintendent considers it necessary for security or good order (s 49(1)). Refusal to permit a search can lead to refused entry or removal, and force may be used (s 49(3), (8)). Visitors must provide true names and addresses; providing false information is an offence (s 49(6)). The provisions on proof of identity under s 60A protect biometric data given for identity checking but make it an offence to give that data to anyone else except a prison officer for checking identity or under court order.
Ninth, the Act’s limitation periods and procedural requirements in Part X are strict. The appeal against removal must be instituted within the maintenance period (28 days) (s 106(3)). The prison officer must state reasons for the appeal and the nature of relief sought (s 106(2)). The CEO’s failure to follow procedure is not invalid unless the failure is substantive (s 110I). The chief executive officer can take removal action even if the officer has been charged with, or convicted or acquitted of, an offence relating to the same matter (s 110H). This prevents double jeopardy arguments serving as a shield against removal.