After an offender has been convicted, the process of imprisonment begins at the time that the court orders the term of imprisonment. From that point on and for the remainder of the sentence the prisoner is legally in the custody of the Chief Executive of the Department for Correctional Services [see Correctional Services Act 1982 s 24].
In most cases, time already spent in custody awaiting trial or sentence is taken into account when the sentence is finally imposed, or the sentence may be 'back dated' to the date the person was taken into custody.
The Chief Executive of the Department for Correctional Services decides where each prisoner is sent [see Correctional Services Act 1982 (SA) s 22]. Each prisoner who has been sentenced to more than six months imprisonment must be assessed by the Chief Executive as soon as possible after admission and from then on, at least once every twelve months [s 23]. This is to determine whether the prisoner should be transferred, either within the prison or to another prison. Following an assessment, the prisoner is classified as high, medium or low security. A Prisoner Assessment Committee assists and advises the Chief Executive with this task and considers factors under subsection 23(3) of the Act such as:
- the prisoner's age and sex
- the prisoner's social, medical, psychological and vocational background (that is, working or professional)
- the nature of the prisoner's offence(s) and the length of the sentence
- the prisoner's needs for treatment or education
- the prisoner's suitability for particular forms of training or work
- the prisoner's behaviour while in prison
- maintaining the prisoner's family ties
- proposals for the prisoner's release and rehabilitation
- other relevant matters.
The committee must take into account a prisoner's written or verbal representations when they consider the assessment.
On arrival, prisoners are only entitled to retain minimal personal property and the storage of other personal property is by their own arrangement or at their own cost [see Correctional Services Regulations 2016 (SA) reg 7]. The total value of the personal property that they are entitled to retain cannot exceed a total value of $500 and it must be capable of being stored in a receptacle of 60 litres.
Each prisoner is personally searched on entering prison or moving from one part of a prison to another [see Correctional Services Act 1982 (SA) s 37(1)(a)] and they or their belongings can also be searched when:
- there is reasonable cause to suspect that the prisoner has a prohibited item in their possession [s 37(1)(c)];
- for the purpose of detecting prohibited items all prisoners or randomly selected prisoners are searched [s 37(1a)]; or
- the prisoner is required to provide a biological sample for analysis [s 37(1)(c)].
The Act sets out strict rules as to how body searches must be carried out, particularly where the prisoner is required to strip. Searches must be carried out quickly, and undue humiliation of the prisoner must be avoided [see s 37(5)].
Each prisoner can be required to undergo drug testing on entering prison or returning to prison following an absence [see Correctional Services Act 1982 (SA) ss37AA(1)(a) and (b)]. Prisoners can also be required to undergo drug testing when:
- there is reasonable cause to suspect that the prisoner has unlawfully used a drug [s 37AA(1a)(a)] ; or
- for the purpose of determining unlawful drug use all prisoners or randomly selected prisoners are tested [s 37AA(1)(d)]; or
- the Chief Executive of the Department otherwise thinks fit [s 37AA(1)(e)].
The penalties for failing to submit or comply with all reasonable directions in relation to drug testing can be quite severe including loss of privileges for up to six months, exclusion from work for up to 84 days and a fine of up to $150 [see ss 43(2), 44(2) and Correctional Services Regulations 2016 (SA) reg 38(5)]. A prisoner has a limited right of appeal, see Hearings and inquiries.
Allowances, other monies and expenditure
Every prisoner is entitled to a basic allowance at a rate fixed by the Chief Executive [see Correctional Services Act 1982 s 31(1)].
Every prisoner (except those on remand) is also required to work while in prison, although the old penal notion of hard labour does not apply today [see Correctional Services Act 1982 s 29(1)]. Remand prisoners may work if they wish to do so and if work is available in the institution they are held [see s 29(2)]. The Chief Executive must ensure that the work provided to prisoners helps them gain skills which may be useful when they are released [see s 29(3)]. At Yatala Labour Prison, for example, industries include boot making, bakery, laundry work, spray painting, engineering, furniture making and tailoring.
Prisoners who work can earn a further allowance [see s 31(2)]. In addition, the Chief Executive can establish a system of bonus payments for those who work well in prison [see s 31(2a)]. The Chief Executive keeps money earned by a prisoner in an account in the prisoner's name and the Chief Executive has a discretion to allow or refuse withdrawals from the account [see s 31(4)].
If a prisoner receives other money, the Chief Executive may either:
- hold the money until the identity of the payer and the circumstances of the payment are known;
- return all or part of the money to the payer;
- credit all or part of the money to the prisoner's account;
- hold all or part of the money until the prisoner's discharge from prison;
- if prisoner not lawfully entitled to receive money but it cannot be reutned to the payer, pay it to the Treasurer as unlcaimed money under the Unclaimed Monies Act 1891 (SA); or
- hold it as evidence of an offence.
See Correctional Services Act 1982 s 31(5a).
Since 9 November 2012, there is a restriction on former prisoners giving or depositing money into the account of a prisoner, without the approval of the Chief Executive, within 12 months of the date that they were released from prison. If money is given or deposited without approval, the Chief Executive must try to return it to the person who paid it [see ss 31 (5b) and (5c)].
The Chief Executive can pay up to 30% of the prisoner's weekly income into an account in the prisoner's name to be used in assisting the prisoner to resettle in the community when released. The prisoner may not draw on that account while in prison unless the Chief Executive considers that special reasons exist [see Correctional Services Act 1982 ss 31(4a) and (4b)].
The Chief Executive may sell any items for personal use or consumption, which may be purchased by prisoners using money from their earnings [Correctional Services Act 1982 s 32]. Items are sold at cost price, but any surplus that may arise is paid into a Prisoner Amenity Account, the funds of which may be used for the provision of services to prisoners [see s 32A].
Compensation Quarantine Fund
Under section 81F of the Correctional Services Act 1982 (SA), any compensation over $10 000 paid by the State for a civil wrong (not including false imprisonment [s 79(2)]) committed against a prisoner (while imprisoned and in relation to their imprisonment) is quarantined. Compensation specified for medical and legal costs [s 81] is not quarantined [s 81B(2)]. Compensation is initially quarantined for 12 months, but this may be extended until the final determination of all legal proceedings that may be commenced by victims and notified to the Chief Executive [ss 79 and 81J]. Creditors may also notify the Chief Executive of any debts they are owed by the prisoner [s 81K]. The Chief Executive must then pay out of the fund any amounts awarded to a victim or debt owed to a creditor within 45 days of the end of the quarantine period [s 81L].
Education and training
One of the special privileges a prisoner may be granted (which may also be removed if the prisoner misbehaves) is the freedom to visit the prison library in the evenings. Prisons also provide technical and further education courses for prisoners.
Each prison provides medical assistance either by a nurse or a visiting doctor. There is no reason why a prisoner cannot consult his or her own medical practitioner provided that the medical practitioner is prepared to visit the prison. However, a private medical practitioner may not be permitted to use prison medical facilities to examine a prisoner. In cases requiring specialist treatment the manager must, if asked, make special arrangements to transport the prisoner to a hospital or other institution. At Yatala Labour Prison, there is an infirmary for prisoners when they are ill. The Adelaide Remand Centre also has a small infirmary. James Nash House can treat those needing psychiatric care. This facility was the first in Australia that was built by a correctional services department but administered by a department of health. Since its opening, similar institutions have opened in both Western Australia and Queensland.
South Australian (State) elections
Under section 29 of the Electoral Act 1985 (SA), a prisoner may be enrolled for, and may vote at, State elections, either in the electoral district where the prisoner previously resided or, in certain circumstances, in the prison's electoral district. A vote sent by a prisoner to a returning officer can only be opened by the returning officer or the returning officer’s delegate [see Electoral Act 1985 s 120(2)].
Commonwealth (Federal) elections
Under section 93(8) of the Commonwealth Electoral Act 1918 (Cth), a person serving a sentence of imprisonment of three years or longer cannot vote in Federal elections. In Roach v Electoral Commissioner  HCA 43, the High Court held that while a blanket denial of all prisoners' right to vote was unconstitutional, the denial to prisoners serving sentences of three years or more was not.
After an absence of nearly nineteen years, in 1990 the concept of solitary confinement was reinstated. Under section 36 of the Correctional Services Act 1982 the Chief Executive of the Department for Correctional Services may direct that a prisoner be kept separately and apart from all other prisoners within the prison if in his or opinion it is desirable:
- to investigate an alleged offence by the prisoner (once for up to thirty days [see ss 36(2)(a), 36(3) and 36(5)])
- for the prisoner's safety or welfare
- to protect other prisoners
- to ensure security or good order within the prison.
A prisoner confined for one of the last three reasons may be kept in solitary confinement for as long as the Chief Executive wishes [see s 36(4)]. The Minister for Correctional Services must be given a report about any such confinement (of 5 days or more duration in any 10 day period) and may review the decision and either confirm or revoke it [see ss 36(9) and 36(10)]. The prisoner confined must be given a copy of the Chief Executive's direction (which must be in writing) within twenty four hours of the direction [see s 36(7)].
Remand prisoners are allowed up to three visitors at a time, three times in each week [see Correctional Services Act 1982 (SA) s 34(2) and Correctional Services Regulations 2016 (SA) reg 39(2)]. Other prisoners are allowed one visit, of up to three people, once in each two week period [see s 34(1) and reg 39(1)].
Prisoners are allowed visits from their lawyers, which do not count as personal visits if they are for legal business [Correctional Services Act 1982 (SA) s 35(2)]. Lawyers are guided by the Department for Correctional Services Professional Visits Guide.
The Chief Executive of the Department can permit extra visits for special reasons (although this is very rare) and can also stop a particular person from visiting a prisoner.
The following restrictions also apply to visitors:
- visitors must provide evidence of their identity;
- visitors may see and speak with a prisoner but are not generally permitted to touch the prisoner;
- a person who has been released from prison may not, without the approval of the Chief Executive, visit another prisoner within 12 months of the date they were released from prison;
- a person under the age of 18 years may not, without the approval of the Chief Executive, visit a prisoner if the prisoner has been found guilty of a child sexual offence;
- a person who the Chief Executive believes is a member of a criminal organisation, or associated with one, may not visit a prisoner without the approval of the Chief Executive.
See Correctional Services Act 1982 s 34(4).
If a person would like to request approval of the Chief Executive to visit a prisoner, they should do so by letter to:
Chief Executive Custodial Services
GPO Box 1747
ADELAIDE SA 5001
The letter should cover things such as:
- who they are;
- their relationship to the prisoner;
- whether they were able to visit the prisoner prior to 9 November 2012 (if applicable);
- why they should be able to visit or continue to visit; and
- any adverse affects of not be ing able to visit or continue to visit.
If the approval is sought for a child to visit a prisoner serving imprisonment in relation to child sex offences, the letter should also cover the child's relationship to the prisoner and whether the child was a victim of the offending.
The Chief Executive will respond to requests for approval by return letter.
Where the Chief Executive has:
- refused to grant approval to a person to visit a prisoner; and
- has made the decision on the basis that they are a member of a criminal organisation (or associated with one); and
- has made the decision based on information that is classified as criminal intelligence by the Commissioner of Police;
then this information may not be disclosed to any other person, and the Chief Executive is not required to provide any grounds or reasons for the decision other than it was made in the public interest [see s 6(1) and (2)].
The Chief Executive also has the ability to exclude a person from entering, or visiting a correctional institution where the person:
- is interfering with, or is likely to interfere with, the good order of the or security of the institution; or
- is a member of a criminal organisation, or associates with, or has associated with, a member of a criminal organisation.
This power extends to excluding the person from all correctional institutions of a particular class, or all correctional institutions generally.
See Correctional Services Act 1982 (SA) s 85A(1) and (2).
A prisoner is entitled to send and receive letters but the Chief Executive may cause all mail, whether it is sent from or to a prisoner, to be opened and examined to check whether it contravenes section 33 of the Correctional Services Act 1982 [see s 33(4)]. The Chief Executive must advise a prisoner of any action taken in respect of any letters sent from or to prisoners [s 33(12)].
Letters sent from a prisoner to certain public authorities or a legal practitioner cannot be opened [see s 33(7)]. Similarly, if the authorised officer is satisfied a letter sent from certain public authorities or a legal practitioner, they may not open the letter [see s 33(8)].
The Chief Executive has a discretion as to what goods prisoners may receive [see s 33A].
Phone calls and other communication
Prisoners may not receive telephone calls, but may make a limited number of outgoing calls each week. The rules as to the number of calls that may be made vary from prison to prison. Prison officers can also disconnect telephone calls and prisoners are only permitted to telephone a limited number of phone numbers.
The Chief Executive has the power to monitor or record a prisoner's communication with another person. Communication is defined broadly to include conversation or message in any form or combination of forms. However, the parties to the communication must be informed about the monitoring or recording. If the Chief Executive has authorised a particular communication beforehand then the Chief Executive must not monitor or record it [see Correctional Services Act 1982 (SA) s 35A].
Prison offences for which a prisoner may be punished include breaking the rules of the prison, the keeping of prohibited items in cells, gambling, assaulting prison officers, other prisoners or any other person, using indecent, abusive or insolent language and refusing or failing to carry out prison work [Correctional Services Act 1982 (SA) ss 42A, 43, 44 and 83 and Correctional Services Regulations 2016 (SA) regs 14-21].
A breach of prison regulations may be dealt with in different ways depending on the type of regulation. If the matter is categorised as a minor breach, the Chief Executive can notify the prisoner in writing of the alleged breach [s 42A]. The prisoner may, within twenty four hours of receiving notice, write to the Chief Executive (or an employee of the Department) and ask to be charged with the offence and have the matter formally heard. The Chief Executive must then conduct an inquiry into the allegation in the manner prescribed.
If the prisoner does nothing or elects not to have a formal hearing, the Chief Executive can proceed to impose penalties which include forfeiture of specified privileges for up to 10 days or be excluded from working with other prisoners for up to 10 days.
More serious breaches actually require the Chief Executive to hold an inquiry or for the Visiting Tribunal to hold a formal hearing [ss 43(1) and 44(1)].
Breaches of the Correctional Services Regulations 2016 (SA) are not dealt with by a court but instead either by inquiry by the Chief Executive of the Department or by hearing of a Visiting Tribunal [see Correctional Services Act 1982 (SA) ss 43 and 44]. The Chief Executive may only conduct an inquiry if the prisoner is charged within 8 weeks of the date of the alleged offence [s 43(1) and reg 22(1)], but may at any time before imposing a penalty refer a charge to a Visiting Tribunal for hearing and decision [s 44(1)].
The penalties that can be imposed following an hearing by a Visiting Tribunal [s 44(2)] are greater than those that can be imposed following an inquiry by the Chief Executive [s 43(2)] which in turn are greater than the penalties that can be imposed without any inquiry by the Chief Executive [s 42A(2)] (for minor breaches a prisoner can elect not to have a formal inquiry [regs 18-21]). Examples of penalties that may be imposed include fines, loss of privileges and loss of work.
The Chief Executive conducting an inquiry or Visiting Tribunals holding hearings must follow certain procedures [s 45]. The prisoner must be given notice of the charge and must be allowed to give evidence, to call and cross-examine witnesses and to make submissions, but is not entitled to legal representation in the proceedings [s 45(ba)].
A Visiting Tribunal may be constituted of a Magistrate or a special justice, and each prison may have as many Visiting Tribunals as the Minister for Correctional Services thinks necessary and desirable [s 17].
A prisoner may appeal to a Visiting Tribunal against a penalty imposed by a Chief Executive [s 46(1)]. No further appeal may be made following the decision of the Visiting Tribunal on an appeal [s 46(5)]. However, where a Visiting Tribunal hears and decides a matter in the first instance, there is a limited right to appeal on the ground that the procedural requirements of the Act were not followed by the Visiting Tribunal (i.e. not against the penalty imposed) [see s 47(1)]. If the Visiting Tribunal is constituted by:
- a Magistrate, the appeal is made to the District Court [s 47(1a)(a)];
- a special justice, the appeal is made to the Magistrates Court [s 47(1a)(b)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.