Legal actions by prisoners

Contributed by JohnRawnsley, Sam Dutaillis and Caitlin Burke and current to 1 May 2016

Criminal proceedings

As well as the laws relating to managing prisons the criminal law generaly applies to prisoners and employees of the Department of Correctional Services. Complaints can be made to Police. Legal advice can be provided to a prisoner if a prisoner has a concern about making a complaint.

Where a prisoner alleges that they or another prisoner have been assaulted by a prison officer, the matter ought to be referred to the police. This includes where the prisoner does not wish to pursue the matter. The matter is decided by a judge who must act on the information unless the allegation appears frivolous or an abuse of process [Electronic Rentals Pty Ltd v Anderson [1971] HCA 13; (1971) 124 CLR 27].

Civil proceedings

Civil proceedings can be brought on by prisoners depending on the circumstances. Legal advice should be sought by a prisoner. Strict time limits can apply to civil proceedings so prisoners are encouraged to act quickly.

A number of legal aid providers attend to the prison for 'legal clinics' on a regular basis, and appointments can be made by contacting the relevant legal aid provider (prisoners ought to have access to legal aid Free-Call numbers). Visits to prisoners by legal practitioners or phone calls between prisoners and legal practitioners have laws and rules related to whether they are audibly recorded.

Civil proceedings can be brought for an action that is also part of a complaint for a criminal proceeding. In other words, if a prisoner wants to take civil action they may be able to do so even though that same action is also part of a criminal law complaint. Legal advice should be sought.

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