Hidden prison disciplinary hearings lack scrutiny, Victorian Ombudsman finds
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Fairness for prisoners may not be a popular subject, but the lack of it damages our reputation as a civilised society.
I didn’t plead guilty. I said, “Listen, I think you’ve made a mistake.” … The [Hearing Officer] said, “You have to plead guilty to something to get out of the slot”.
My latest investigation looks into good practice when conducting prison disciplinary hearings - which sees about 10,000 conducted annually across Victoria’s 14 prisons.
I’ve just been told “no” that I can’t [call a witness]. I just think it’s unfair and biased for them not to let me call a witness when they’re calling witnesses.
My investigation found undocumented pre-hearing discussions were potentially widespread, and that prisoners were not being given written reasons. And their only avenue of review was the Supreme Court.
They basically said, “If you plead not guilty, we’ll get the other person’s statement again and we’ll just find you guilty.” … They basically just said either way they were going to find me guilty of this.
There were prisoners with mental health issues and cognitive impairment who were not always offered adequate support and information.
I was asking for an independent third person to come in to deal with me because I’ve got serious complex mental health issues. …
There was no assistance to give me any help. … I haven’t got a chance to put my case forward or even defend myself.
The ramifications for prisoners found guilty in the hearings can be big – some can lose opportunities for parole and can have other privileges such as telephone calls and out-of-cell time withdrawn. In some cases, prisoners may even miss out on contact visits with family and children.
It doesn’t seem fair to me, I’ve been pinning my hopes on getting parole.
For the vast majority of Victorians, people in prison are out of sight, out of mind. Yet as Nelson Mandela said: A nation should not be judged by how it treats its highest citizens, but its lowest ones.
A Victorian Ombudsman investigation has found prisoner disciplinary hearings are still done “in the dark” and the potential for unfairness remains rife.
The probe into the prison disciplinary process, which deals with prisoners who break prison rules, also found prisoners with mental health issues and cognitive impairment were not always offered adequate support and information.
The investigation into prisoner hearings, which sees about 10,000 conducted annually across Victoria’s 14 prisons, also found undocumented pre-hearing discussions were potentially widespread, and prisoners were not given written reasons for decisions or sufficient information about the charge, leading to procedural unfairness.
It also identified a lack of discretion in taking forward minor offences to a formal disciplinary process – adding to the burden on prisons, the prison officer and prisoners.
Victorian Ombudsman Deborah Glass said despite improvements being implemented, following a report by the previous Ombudsman in 2011 on the same issue, reports and complaints to the office continued.
“Fairness for prisoners may not be a popular subject, but the lack of it damages our reputation as a civilised society,” Ms Glass said
“Disciplinary hearings in Victorian prisons are still carried out in the dark with insufficient scrutiny, oversight or transparency.
“While we observed some good practices and decisions, the potential for unfairness is still rife.”
There was also a perception of bias identified in some cases with the same prison officer issuing the charge and then presiding over the hearing, and an overall lack of transparency when requests for different hearing officers were refused.
Some of the cases the investigation reviewed were:
- A suicidal prisoner with mental health conditions was charged – despite apologising a day later – after he resisted a strip-search while being moved to an observation cell
- A prisoner officer reportedly reneged on a back room offer of to a prisoner after telling him he was told he would not be taken off the methadone program if he pleaded guilty
- A prisoner with an intellectual disability whose charges were dismissed after an independent advocate demonstrated they did could not remember the incident or understand the proceedings
- Hearing officers not considering prisoners’ intellectual disabilities when handing out fines or ensuring they had independent support.
Prisoners found guilty in the hearings can lose opportunities for parole and can have other privileges such as telephone calls and out-of-cell time withdrawn. In some cases, prisoners may even miss out on contact visits with family and children.
The current legislation provides no right of review of a decision – if a prisoner wishes to challenge a decision, their only option is to apply to the Supreme Court for judicial review.
Ms Glass said written reasons and internal reviews were key to good administrative decision-making – and Corrections Victoria should not fear implementing her recommendations.
“The recommendations I make in this report would not only increase fairness and transparency in a notoriously opaque process, they support good decision-making,” she said.
The Victorian Ombudsman's Investigation into good practice when conducting prison disciplinary hearings was tabled in Parliament today.
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