The power of Corrections Victoria and private prison operators to run a prison and to make decisions comes from the law. If they go beyond what they have the power to do, or if they get it wrong at law, then it is possible to take any decision to the Supreme Court for a judicial review.
On a judicial review, the judge will only consider if they have gone beyond their power or got it wrong at law. The Court will not ask itself if it would make a different decision, or if it was fair. The Court only asks, “was it in their power?” or, “was it lawful?”.
If the Court finds that it was not in their power to do what they did, or it was unlawful, then the Court will quash the decision and tell them to do it again, but to get it right this time.
What decisions may be reviewed
The decisions that may be reviewed include:
- a prison disciplinary finding, but only if they do not follow the procedure in the Corrections Act and Regulations
- a decision about a Local Management Plan or your classification, but only if they didn’t give you a chance to be heard, or they took irrelevant things into account
- a decision to separate you to “the slot” under investigation or for your own protection, but again only if they did not do it according to the law.
The Local Operating Procedures (LOPs) of the prison may include rules that impact on a prisoner’s rights. The LOPs are made subject to the Corrections Act and Regulations. If a Prison Manager relies on a rule that is beyond the scope of this legislation, the decision may be reviewable. Under the Administrative Law Act (1978) it is possible to apply for judicial review of an administrative decision that impacts on the legitimate rights or expectations of an individual.
On what grounds will a decision be reviewed
Judicial review may be granted if you can prove a decision was improperly made, for example:
- the rules of natural justice were breached
- the procedure required by law, as in a prison disciplinary hearing, was not followed
- that the person who purported to make the decision did not have jurisdiction to do so, or exercised their power improperly
- that the decision was not authorised by an enactment under which it was said to be made
- the decision involved an error of law
- the decision was induced or affected by fraud
- there was no evidence or material to justify the making of the decision
- the decision was otherwise contrary to law
What to do
If you feel a decision has been made improperly, it is advised that you:
- keep a written record of what has occurred between you, or anyone acting on your behalf, and the correctional operators or administrators
- in the first instance, request an internal review of the decision, refer to fact sheet #20: Complaints in how to proceed with making a request or complaint
- request a statement of reasons for the decision within 28 days in writing
- if the decision-maker fails to provide a statement of reasons or refuses to do so and are legally obliged to provide reasons, an application can be made to the Supreme Court compelling them to provide reasons
- obtain legal advice before proceeding with an application for judicial review
Note that there are strict time limits for bring a case for judicial review. These are:
- within 30 days of the decision, or the giving of reasons, for an application made under the Administrative Law Act 1978 (Vic)
- within 60 days of the decision, or the giving of reasons, for an application made to the Supreme Court under the General Civil Procedure rules.
This fact sheet contains general information only and is not a substitute for obtaining legal advice. If you would like advice regarding a specific problem please contact one of the legal services listed in contacts or contact the Law Institute of Victoria’s Legal Referral Service on 9607 9311.