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Placement and separation orders

Information about placement and separation orders.

Isolation of prisoners first entering prison

During the COVID-19 pandemic, prisoners entering the prison system are isolated for 14 days to reduce the risk of spreading COVID-19 throughout the prison system.

For details see the Prisons section in Criminal law and COVID-19.

Deciding where a prisoner will be placed

The prison and security level where a prisoner is placed (also called their allocation) can impact greatly on a prisoner’s welfare. Placement should take into account any special needs the prisoner has.

Placement refers not only to a prison location, but can also include a specific unit within a prison location. A prisoner’s placement will be reviewed throughout their sentence, depending on their individual circumstances.

When a decision is being made about a prisoner’s classification (which includes placement), the decision-maker (Sentence management panel) must consider:

  • the offence for which the prisoner has been charged or convicted
  • the risk of the prisoner escaping
  • the risk of the prisoner committing a further offence
  • any risk the prisoner poses to prison management, good order and security
  • the length of the prisoner’s sentence (or if remanded, the maximum sentence applicable to the offences in respect of which the prisoner has been charged)
  • any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

When a decision is being made about a prisoner’s placement, the decision-maker (Sentence management panel) must consider:

  • the prisoner’s security rating and risk factors (length of sentence, risk of escape)
  • the programs or other processes a prisoner requires to lower the risk of further offending
  • the risk the prisoner poses to themselves or to others
  • any drug or alcohol use or treatment
  • their prison or other relevant institutional history
  • any medical or psychiatric condition
  • any physical limitations or disability
  • their cultural background
  • all relevant family issues
  • any sentencing remarks, if known
  • and transitional requirements for re-entering the community
  • any other relevant matters.

These broad factors should be reviewed where the placement causes the prisoner significant discomfort and places them in a position of foreseeable harm.

See r. 30 and r. 31—Corrections Regulations 2019 (Vic)(opens in a new window) and AC4 in Part 2 of the Sentence Management Manual(opens in a new window).

Transgender, intersex and gender diverse prisoners

In Victoria, transgender, intersex and gender diverse prisoners are supposed to be placed in a facility that aligns with how they identify. However, sometimes this does not happen and prisoners are held in a prison of their birth sex. The decision behind this may be based on security and safety reasons or if prison authorities think the person's trans status is not 'authentic'.

Policies differ between states.

See ABC news—Why are transgender women jailed in men's prisons around Australia?(opens in a new window)

Separation orders

Prisoners may be separated from other prisoners under a separation order. A separation order will be made if it is deemed necessary for the safety or protection of the prisoner or others, or for the security, good order or management of the prison.
An order will be needed to transfer a prisoner (to a high security or management unit or to have a medical or psychiatric observation) or any time when the separation is expected to last for more than 24 hours.

When a prisoner is separated, they must be managed in the least restrictive conditions that are necessary. This will depend on the reason that the prisoner was separated. Staff must comply with the Charter of Human Rights and these rights may be limited, but only to the extent that it is reasonably necessary and can be justified.

Prisoners may be separated in:

  • high security units
  • management units and cells
  • intermediate regimes
  • medical and psychiatric observation.

Unless the prisoner is serving loss of privileges because of a General Manager’s Disciplinary Hearing process, the period of initial separation must not be more than 7 days.

The prison management must complete a separation order and forward to the Sentence Management Branch for review and endorsement. Sentence Management Branch is also responsible for maintaining a separation register which records details of the separation, including date of separation, date the order was received and whether a copy of the separation order was given to the prisoner.

Separation of a young person

If the prisoner separated is under the age of 18, the Sentence Management Branch must also notify the Chief Practitioner, Child Protection and Youth Justice, Department of Health and Human Services.

See r. 32 of the Corrections Regulations 2019 (Vic)(opens in a new window) and Policy Framework Part 1 and PM 3 in Part 3—Sentence Management Manual(opens in a new window).

Possible restrictions under a separation order

There are a variety of separation regimes for which a separation order can be made. Separation affects a prisoner’s access to services, privileges and education. The prisoner’s medical and psychiatric conditions must be taken into account before a separation order is made.

Restrictions resulting from a separation order may include:

  • total segregation and isolation
  • reduction in the number of hours spent out of the cell
  • reduced frequency of contact and box visits (rather than face to face visits)
  • limiting access to special and non-essential canteen purchases
  • limiting access to telephone calls and personal cell property
  • numbers on run-outs (the time that high security prisoners are allowed out of their cell each day. Some prisoners may be allowed to ‘run-out’ with other prisoners, whereas certain prisoners may be restricted in who they can interact with due to having their ‘run-out’ at different times from other prisoners).

See Part 1, PM3, part 3 of the Sentence Management Manual(opens in a new window) and for more information about loss of privileges see 1.17—Classification of prisoners—Deputy Commissioner’s Instruction.

Urgent orders

Usually an order for separation should be made in writing unless the matter is urgent. If an oral order is made the prison should confirm the separation order in writing within 24 hours of being issued. The prisoner must be told why the order is being made and be given a copy of the order within 12 hours of separation.

Ceasing separation

Separation of a prisoner ceases when:

  • A classification decision is made by a Sentence Management Panel
  • the short-term prisoner management issue has resolved and the prisoner has returned to their normal routine associating with other prisoners
  • the prisoner has been declared to be no longer at risk of self-harm and the prisoner has returned to their normal routine associating with other prisoners
  • the term imposed by the General Manager’s Disciplinary Hearing has expired.

Unless extended by a new order, a separation order ceases on the expiry of the order when the prisoner is classified by a Sentence Management Panel or when cancelled by the Secretary.

See r. 32—Corrections Regulations 2019 (Vic)(opens in a new window).

Local prison powers to separate

The prison management staff must ensure the security of the prison and must take all reasonable steps for the safe custody and welfare of the prisoners. This gives prison staff the power to hold a prisoner in a cell or room to the extent that it is necessary. However, this restriction should not last for more than 24 hours. The reasons for doing this must be placed on the prisoner’s Individual management file. The kind of situations that could lead to this urgent separation include:

  • to cool-off after a minor altercation
  • when waiting to be transferred to another prison
  • placement for their safety until accommodation is available
  • lock downs when there is a staff shortage, security issue or industrial action
  • to allow urine samples to be taken privately
  • as part of a behavioural management plan.

See ss. 20-22A—Corrections Act 1986 (Vic)(opens in a new window) and PM3—Sentence Management Manual(opens in a new window).

Review of separation

The Sentence Management Branch is responsible for making sure that prisoners are reviewed as appropriate. This will depend on the restrictions imposed and also on the risks. Representatives will visit the high security and management units (at Barwon and Port Phillip Prison) each week.

Sentence Management Branch must review all prisoners separated into High Security and Management Unit or cells within 8 days of a prisoner’s separation (except if a prisoner is separated for less than 7 days). Prisoners under the age of 18 must be reviewed weekly.

Interpreters should be used when the person has difficulties understanding English. A support person should be offered to be present for indigenous prisoners.

A prisoner must not be ordered to stay in a high security or management unit for more than 30 days. If the panel believe that this is necessary, they should make a report that recommends a long term management placement.

For more information about long term management see PM 4—Part 3 Sentence Management Manual(opens in a new window).

Natural justice

As a type of administrative decision-making process, the decision to separate a prisoner would appear to be subject to the rules of natural justice. Failure by the Sentence Management Panel to consider relevant matters may be subject to judicial review. Although in practice, it may be very difficult to challenge a separation decision in courts, as significant weight will ordinarily be given to the decisions of correctional administrators in respect of these matters.

More information

Legislation

Corrections Act 1996 (Vic)

  • s. 20—duties relating to security and welfare
  • s. 21—duties of the governor
  • s. 22—reports to the governor
  • s. 22A—powers of the governor

See Corrections Act 1986 (Vic)(opens in a new window).

Corrections Regulations 2019 (Vic)

  • r. 30—determination of classification
  • r. 31—determination of placement
  • r. 32—separation by secretary

See Corrections Regulations 2019 (Vic)(opens in a new window).

Reference

Sentencing Manual

  • Part 2 AC4—Determining a prisoner's placement
  • Part 1 PM3—Separation regimes
  • Part 3—Prisoner management

See Corrections, Prisons & Parole—Sentence Management Manual(opens in a new window).

Updated