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Rapid Build Prison Dormitories

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The NSW Government has adopted a new concept in prison architecture to allow an urgent response to an unexpected surge in prisoner numbers. This nw form of imprisonment, holding 800 maximum security prisoners in dormitories of 25 together, is being constructed without public discussion about the consequences. The CJC has researched the international experience of prisoners dormitories and is concerned that this sytem raises levels of violence, bullying and fear, with damage to prisoner health and recividism. The uncertainty surrounding the concept of a dormitory styled prison is exhibited by plans to demolish the Wellington complex within 5-7 years.

Cubicles in the dormitories will be 3m by 2m with partitions 1.5m high and no door. An increased level of activity will be offered using computers with educational access and potential for email.

The CJC says that an informed public discussion is necessary before they are used.

Here is the Report.

Unacceptable Pressure Cooker Prisons
Media Release 16 November 2017

"The Community Justice Coalition met with Corrective Services NSW on Monday 13th, after expressing grave concern to the Minister about plans to hold 800 prisoners in 25 person dormitories being built at Wellington and Cessnock. We presented them with a Report (link) analysing the effects of dormitory style accommodation on prisoners' privacy and safety. The Report, based on international experience, shows that this system raises levels of violence, bullying and fear, with damage to prisoner health and recidivism" said CJC President, the Hon John Dowd AO QC.

"CJC had asked for reports that dealt with the psychological and social effects on prisoners held for long periods in such dormitories. Although CSNSW had said the new system had 'been subject to a robust review process where any problems identified were given full consideration and mitigation strategies put in place where required', it has not yet provided us with any analysis of this kind" said Mr Dowd. CJC also pointed out that, while there may have been limited local consultation, there had been no consultation with prisoners' advocacy groups about these highly significant changes.

"Such a major change in the form of imprisonment, not used in Australia's 200 years' experience, requires open community consultation. That hasn't happened and local community groups say they have not been engaged. CSNSW said they talked to Health and the Ombudsman had made comments. They plan to open the Wellington Dormitory Prison on the 16th of December with Cessnock to follow in mid-February 2018. We think an informed public discussion is necessary before they are used" said Mr Dowd.

"It is gratifying that they intend to offer a range of facilities, and an increased level of meaningful activities such as education, including up to four Certificate three TAFE courses per year, using computers with educational access and potential for email and other use. The cubicles will be 3m by 2m with partitions 1.5m high and no door. Although CSNSW intends to provide heightened security, necessary for this configuration, the risks to personal security will be increased; the noise of people in adjacent cells will make distractions necessary for it not to become a pressure cooker for emotionally disturbed people" said former Chief Justice of the Family Court of Australia, the Hon Elizabeth Evatt AC.

Comments: The Hon John Dowd
The Hon Elizabeth Evatt by arrangement

Media Release: Northern Territory Juvenile Justice Exposure

Graphic footage aired on the ABC’s Four Corners Program has exposed the brutal mistreatment of young boys in the Juvenile Justice System between 2010 and 2015. The Four Corners footage showed detainees as young as thirteen being repeatedly stripped naked, thrown against walls, kneed and knocked to the ground. Furthermore, detainees were placed in solitary confinement for excessive periods of time and sprayed with tear gas in confined spaces.

Following the extensive media coverage and public outcry against these revelations, the Northern Territory’s Chief Minister Adam Giles removed and replaced the Northern Territory’s Minister for Corrections John Elferink. Furthermore, Prime Minister Malcolm Turnbull has ordered a Royal Commission into Darwin’s Don Dale Detention Centre. Although Justice Action believes the Commission will be a positive presence in highlighting the terrible injustice done to young people, we do not believe that it goes far enough. Justice Action would like to see the Royal Commission extended beyond the Northern Territory. The crisis facing young people in juvenile detention is a national issue for both young people and adults.

The treatment of young boys in Darwin’s Don Dale Detention centre amounts to torture and constitutes a breach of Australia’s international obligations under [OPCAT]. In 2009, Justice Action produced a report to the Australian Human Rights Commission. If these recommendations had been adopted in 2009 these terrible conditions may have been rectified sooner.

Justice Action condemns the atrocities perpetuated towards young people within the criminal justice system. These are places where young people need the most support. Unfortunately, the history of the penal colony is littered with the continuation of such incidents, and will inevitably continue without the crucial intervention of our elected representatives, legal officers, non-government organisations and advocates, and the general public. It is up to society to keep our representatives accountable for such tragic oversights, and force them to intervene rather than ignore these travesties.

As a result of these recent events, Justice Action acknowledges that the following changes should be enacted promptly:

1. Expansion of the Royal Commission to include investigation of all places of detention in all states and territories.
2. Adoption of the recommendations made by Justice Action’s international Consultation regarding the OPCAT treaty.
3. Implementation of an NPM (National Preventative Mechanism) ensuring regular inspection of all places of detention, including juvenile detention centres in Australia.

Media Summary: Northern Territory Juvenile Justice Exposure

Prisoner Education Forum 2016

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Community Justice Coalition (CJC) and the International Commission of Jurists (ICJ) are presenting a public forum on Prisoner Education.

Several key speakers including Shadow Minister Guy Zangari MP, The Greens Spokesperson David Shoebridge MLC, Former Chief Justice of the Family Court of Australia Elizabeth Evatt AC, and President for NSW Teachers Federation Maurie Mulheron.

Tuesday 23 August 2016
Time: 5:30pm to 7:30pm
Venue: Parliament House Sydney, Macquarie Room
Come along! Please email RSVP to This email address is being protected from spambots. You need JavaScript enabled to view it.
For more information, and Forum Paper visit CJC or ICJ website

Northern Territory Juvenile Justice Exposure

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Graphic footage aired on the ABC’s Four Corners Program has shed light on the brutal mistreatment of young boys in the juvenile justice system between 2010 and 2015. Detainees as young as thirteen were repeatedly stripped naked, thrown against walls, kneed and knocked to the ground, forcefully restrained, placed in solitary confinement for extended periods and sprayed with tear gas in a confined space. This constitutes to torture and is a blatant violation of Australia’s obligations under OPCAT.

This endemic violence occurs when vulnerable people are kept in secret places where no one is watching. It constitutes a breach of Australia’s international obligations under OPCAT that should be rectified.

At the Human Rights Commission Seminar on the adoption of the OPCAT treaty on 25 November 2009, Justice Action represented the detainees and proposed a number of recommendations on the issue, with which the world-leading expert on torture Silvia Casale agreed. The adoption of the recommendations would have prevented the atrocities that have occurred in Northern Territory.

Following media coverage and public outcry against this incident, the Northern Territory’s Chief Minister Adam Giles removed and replaced the Northern Territory’s Minister for Corrections John Elferink. Prime Minister Malcolm Turnbull has announced a Royal Commission into the acts of abuse in Darwin’s Don Dale Detention Centre.

Turnbull’s commission was initially criticised due to its limited scope (to the NT, Don Dale in particular) and the appointment of former Northern Territory Supreme Court Chief Justice Brian Martin to head of the inquiry. However, Brian Martin resigned as head of the commission just 4 days after his appointment leading to Aboriginal and Torres Strait Islander social justice commissioner Mick Gooda and Justice Margaret White being appointed as co-commissioners.

MORE INFORMATION:

Media Summary: Northern Territory Juvenile Justice Exposure

Media Release: Northern Territory Juvenile Justice Exposure 

JA Report The benefits of monitoring places of detention – from a prisoner’s perspective

 

Analysis of Committee - Lifers' Report

On the 4th of April 2016, the Standing Committee on Law and Justice (Law and Justice Committee) submitted a Report to Parliament regarding the security classification and management of inmates sentenced to life imprisonment. It responded to an intervention made by David Elliot (Minister for Corrective Services) on the reclassification of lifer Andrew Garforth.

In July 2015, Andrew Garforth was reclassified from maximum (A2) to medium (B) security on the recommendation of the Serious Offenders Review Council (SORC). Another 11 inmates serving a natural life sentence had also been reclassified to either medium or minimum security. Reacting to an outcry from the victims family and the public, the Commissioner of Corrective Services reclassified him and then later all natural lifers from their lower security back to maximum.

The Inspector of Custodial Services examined what had occurred and found that the Minister’s action in response to media attention and pressure was illegal. Minister Elliott was legally required to consult the Serious Offenders Review Council before his decision. He then went through the motions of consultation and made the same decision, reclassifying the lifers in maximum security. The classification and treatment of lifers based on anything other than security offends many principles within the justice system.

Summary of analysis

The Law and Justice Committee’s report contains 9 recommendations. One is to establish a separate classification called ‘lifers’ for those sentenced to life imprisonment, with little or no prospect of being released from custody. The Report also noted the community upheaval stemmed from the failure of Corrective Services NSW to educate the public and victims on the classification and correctional systems. The Law and Justice Committee recommended Corrective Services NSW undertake an extensive education and communication strategy so the public and victims will be better informed in the future.

This report is now before the Government for consideration. Corrective Services NSW has stated that the movements of lifers to maximum security would be reviewed after the Inquiry had been completed (page 18, para 2.53, 2.55). We are asking for that to happen now.

Under the new ‘lifer’ classification system, only prisoners who are serving a natural life term or an existing life sentence and subject to non-release recommendations would be included. The new classification will be based on the risk they pose to the community, preserves the good order of correctional facilities and ensures the safe and effective management of the inmates. These life prisoners will be managed by the SORC and will not be reclassified.

However, this does not mean that lifers do not have the prospect of release. Every individual is legally entitled to the prospect of being released, which comes in the form of a Royal Prerogative of Mercy under section 114 of the Crimes (Appeal and Review) Act 2001. The right was unchallenged in the Law and Justice Committee’s report, citing Justice Action’s Submission in that ‘individuals serving a life sentence are entitled to apply for a review of their sentence if they can argue, for example, that they have paid sufficient penalty, are no longer a public risk, or have changed as a person and should be given conditional liberty’ (page 6, para 1.34).

Lifers would be placed in correctional facilities on recommendation of SORC. They will not be placed in conditions below medium security (page 32, para 3.53), unless in exceptional circumstances (page 32, para 3.53). We think exceptional circumstances would include those who previously had lower security and respected that trust. Placement of lifer’s in medium security correctional facilities also allows for access to a greater variety of work opportunities and programs, than would be provided in maximum-security settings.

Access to a pre-release rehabilitation programs would be restricted. The Law and Justice Committee supported Corrective Services NSW’s current practice to not make these rehabilitative programs available for lifers, unless there is an imminent risk of criminal behaviour in custody (page 38, para 3.91), and are thus for internal management purposes. Other programs for personal development and education continue as before.

The Committee supported the provision of privileges to lifers, as with other prisoners, at the discretion of prison management, providing those privileges are a tool to elicit good behaviour (page 38, para 3.93). The Committee agreed that victims should not be involved in those decision-making processes because the matters are for internal prison management (page 51, para 4.64). SORC will continue to determine the placement of ‘lifers’. If the recommendations of the Council are not adopted, the Commissioner must provide reasons as to why (page 55, para 5.15). This requirement increases the transparency of decisions made regarding lifers, ensuring they are not made in response to pressure from the public, media or victims.

 

Corrective Services NSW Obligation to Educate the Public

The Committee effectively blamed Corrective Services NSW for the debacle and disturbance of peoples lives caused by the reclassification of lifers. They said the general public and victims have not been adequately informed and educated by Corrective Services about the classification system and prison system more generally, noting the need for “greater engagement directly with the public” (page 32, para 3.57). The Committee recommended that Corrective Services NSW develop a strategy to educate the public on the operation of the correctional system. This is an important step towards creating a greater understanding of the correctional systems, leading to a change in the community’s harsh perceptions and expectations. More communication and community education will lead to the recognition of issues faced by prisoners and be instrumental in the prevention of further out-cries regarding inmate reclassification or relocation, as occurred with the reclassification of Andrew Garforth.

The Committee also recommended introducing a range of measures to improve communication with victims of lifers including an opt-out Victims Register (Recommendations 2, 4, 5, 6, page xi). The register will contain “a list of matters that victims can nominate to receive updates about” (page 49, para 4.52). Corrective Services NSW is negotiating with victim support groups to create a list of matters which are both practical for Corrective Services NSW and of use to victims. However, the updates and information provided to victims should not violate a prisoner’s right to privacy. Registered victims should only be notified of changes to a prisoner’s management if it relates to safety concerns. Any other position only disturbs the victim and interferes with the public policy of rehabilitation of the prisoner.

 

The Right to Privacy

The Committee failed to comment on victims’ and prisoners’ right to privacy. This would have dealt with the whole area more sensitively in the future. We proposed, in our Submission, that in high profile cases, the media is easily able to exploit public interest for commercial gain. Before a trial there are already significant restrictions on reporting. There is a need to also create privacy rights for victims of crime after the trial. This needs to also apply to prisoners, as they are the other part of the relationship.

When confidential prisoner details are released by Corrective Services, it impedes on an offender’s right to privacy, affects their dignity and may negatively impact on their psychological wellbeing. There is no positive outcome to be gained by informing politicians or the media about changes to the management of a sentence, unless it could affect the safety of victims and the community.

Once the trial is over and the offender has been sentenced, the offender should have the right to serve the court’s sentence without interference from the media, the victim or politicians. This right is inherent in the controlled environment of a prison managed by the state, and the current legal obligation of staff not to use their trusted access to sell information to the media. Registered victimsshould only be notified of changes to a prisoner’s management if it relates to safety concerns. Any other position only disturbs the victim and interferes with the public policy of rehabilitation of the prisoner.

Analysis of the Committee’s findings in relation to the submission of Justice Action

Law and Justice Committee Recommendation 1:
Lifers New Classification

That the NSW Government amend the Crimes (Administration of Sentences) Regulation 2014 to establish a separate classification for inmates sentenced to life imprisonment with little or no prospect of being released from custody that is based on the risk they pose to the community, preserves the good order of correctional facilities and ensure the safe and effective management of the inmates.

Committee Comment
The committee acknowledges that some inquiry participants expressed the view that lifers should be permitted to be reclassified to a lower security classification than maximum security, as this is important for the safety and good management of correctional facilities and it provides a reason for lifers to be well-behaved towards staff and other inmates.

However, there remains considerable community unrest regarding this matter and we note that one victim support group strongly opposed lifers being reclassified below maximum security. In addition, other victim support groups recommended that lifers should not be classified lower than medium security because they believed that it is inconsistent with the community’s expectations and minimum security inmates have access to certain rehabilitation programs that are unsuitable for lifers, who will never be released.

The committee notes the view of Corrective Services NSW that the current security classification system is not appropriate for this cohort of inmates. Further, we note that there is an alternate option, which was supported by the department, which is to create a new classification for lifers. Corrective Services suggested that the inmates in this new category would never be subject to reclassification, and that the Review Council would be responsible
for managing secure custody arrangements for these inmates and would make recommendations to the Commissioner regarding placement within the correctional system based on an assessment of risks and needs.

The committee supports this option. We therefore recommend that the NSW Government introduce this new classification for all inmates serving a sentence of life imprisonment for the term of their natural lives or serving an existing life sentence and subject to non-release recommendations as defined in cl 1, sch 1 of the Crimes (Sentencing Procedure) Act 1999 and that it be based on the risk they pose to the community, preserves the good order of correctional facilities and ensures the safe and effective management of the inmates.

The placement of these inmates should also take into account the extremity of these individuals’ crimes. The committee is therefore of the view that the current practice of not placing lifers in conditions that equate to a C1 classification should be maintained, unless there are exceptional circumstances.

Perspective of Justice Action
Justice Action supports the Committee’s recommendation on the establishment of a new ‘lifer’ classification system. Under this system, prisoners who are serving a natural life term, or an existing life sentence that is subject to non-release recommendations, will be managed by the Serious Offenders Review Council and will not be reclassified. This does not mean lifers are denied the prospect of release or their right to hope. Every individual is legally entitled to the prospect of release. For lifers, this comes in the form of a Royal Prerogative of Mercy under section 114 of the Crimes (Appeal and Review) Act 2001 (Cth). This prospect of release was unchallenged by the Law and Justice Committee, citing Justice Action’s Submission in that ‘individuals serving a life sentence are entitled to apply for a review of their sentence if they can argue, for example, that they have paid sufficient penalty, are no longer a public risk, or have changed as a person and should be given conditional liberty’ (p. 6, par. 1.34).

Justice Action also supports the placement of lifers in different correctional facilities based on the recommendations of the Serious Offenders Review Council under the new classification system. The placement of lifers in facilities with medium security conditions, or minimum security in exceptional circumstances, allows for greater access to a variety of work opportunities and programs. This can significantly contribute to the personal development of lifers and provide a positive basis for an application for a Royal Prerogative of Mercy.

This Law and Justice recommendation reflects Justice Action’s stance on prisoners right to hope and development as reflected in our Submission to the NSW Legislative Council Inquiry: Every prisoner should be encouraged to improve their behaviour and develop personally, with the prospect of hope and reconciliation with the community. (Recommendation 4)

Law and Justice Committee Recommendation 2:
Communication and Education with Community

That Corrective Services NSW develop and action a comprehensive communication strategy to educate the public on the operation of the New South Wales correctional system.

Committee Comment
The Committee found that there is a lack of understanding and education in the community regarding the classification system and the prison system more generally. This contributes to the difficulty in effectively balancing the views of the community with sound custodial management practice. Despite updating fact sheets on the Department of Justice website, the Committee stated much more needs to be done by Corrective Services to educate the public, through greater engagement directly with the public. The Committee suggested information about the day-to-day lives of inmates and the security classification systems are important areas that need to be addressed in the education of the public.

Perspective of Justice Action
Justice Action support the Law and Justice Committee’s recommendation, recognising the importance of community education on the operation of the NSW correctional system. This practice is an important step towards creating a greater understanding of the correctional systems, leading to a change in the community’s harsh perceptions and expectations. More communication and community education will also lead to a greater understanding of the issues faced by prisoners and acceptance of the classification of lifers. The education of the public will be instrumental in the prevention of further out-cries when changes regarding an inmate occur, as followed with the reclassification of Andrew Garforth.

Law and Justice Committee Recommendation 3:
Victim Registers

That the NSW Department of Justice consider merging the victims registers of the Mental Health Review Tribunal, Juvenile Justice and Corrective Services NSW.

Committee Comment
The committee is pleased with Corrective Services NSW and their increased involvement with victims through their work in finding better modes of communication with them. They however are encouraging the Department of Corrective Services NSW to facilitate a greater exchange of information across the juvenile sector to better assist victims.

They support the suggestion for the merge of Mental Health Review Tribunal, Juvenile Justice and Corrective Services NSW as it provides easier access to information for victims.

Perspective of Justice Action
Justice Action acknowledges the importance of victim registers in providing support, empathy and education to victims. However, it is necessary to ensure these registers do not breach prisoners’ right to privacy by disclosing personal details and information on prisoners. Justice Action similarly recognises the importance of victims’ right to privacy, as outlined in Recommendation 5 of Justice Action’s Submission to the NSW Legislative Council Inquiry:
Both the victim and the offender should have the right to privacy protected in legislation.

Law and Justice Committee Recommendation 4:
Victim Registers (Opt-Out)

That Corrective Services NSW trial an opt-out Victims Register for victims of inmates sentenced to life imprisonment.

Committee Comment
The committee is supportive of victims calling for the register to be ‘opt-out’. Victims of lifers might find it emotionally difficult to be proactively seeking and joining the victim’s register during a time of great distress. They recommend, for a smooth process, the Corrective Services NSW should make the register an ‘opt-out’ system.

The committee recommend a trial of an opt-out victim register for victims of lifers.

Perspective of Justice Action
Justice Action supports the Law and Justice Committee’s ‘opt-out’ recommendation, believing it will assist victims with an opportunity to come to terms with what has occurred, allowing them to gain comfort and closure, and move forward with their life.

Law and Justice Committee Recommendation 5:
Victim Registers (Re-Joining)

That, as part of the opt-out system at recommendation 4, Corrective Services NSW establish a policy whereby the Victims Register conduct a one-off follow up of victims of inmates sentenced to life imprisonment who have opted-out of the register to ask if the victim would like to reconsider joining the register, and that victims be informed of this policy when they initially make the decision to opt-out.

Committee Comment
Furthermore to recommendation 4, the committee feel as if victims who may choose to opt-out of the Victims Register may change their minds at a later date. The recommendation is that the register complete a one off follow up after the victim has opted out, to consider their re-joining of the register.

Perspective of Justice Action
Justice Action acknowledges and respects the right for victims to change their mind about their involvement and the amount of knowledge they receive about inmates sentenced to life imprisonment. However, a one-off follow up of victims who have opted-out of the Victim Register may cause traumatic memories to resurface and question the closure they received when opting out. This may result in the victim contemplating to opt back into the register, reversing the progress they had made in moving forward with their life and coming to terms with what occurred. This notion was not considered by the Law and Justice Committee when making their recommendation. Justice Action proposes that when opting-out of the register, victims are given the choice to receive a one-off follow up rather than employing a compulsory follow-up policy.

Law and Justice Committee Recommendation 6:
Information Packages

That Corrective Services NSW establish a policy whereby, as soon as possible following sentencing, the Victims Register provide an information package to victims of inmates sentenced to life imprisonment and offer to telephone or meet with them to explain the correctional system, custodial management practices and the day-to-day life of an inmate and that it consider doing this in the presence of a counsellor.

Committee Comment
The committee states that it is important for the Victims Register to communicate with victims of lifers as soon as possible after sentencing. Victims should be well educated and informed about the register, possibly through an information package provided by Corrective Services NSW. Committee recommends options of offers to telephone or meet the victim and explain to them the correctional system, custodial management and day to day life of an inmate in the presence of a councillor.

Perspective of Justice Action
Justice Action recognises the important role victim education and communication has in shaping their perception, expectation and acceptance of the correctional system. Direct engagement with Corrective Services NSW and education on correctional system, custodial management and day to day life of an inmate, will allow the victim to better understand the classification process and therefore more accepting of decisions made regarding changes for lifers.

As Justice Action outlined in their submission to the Legislative Council Inquiry (Recommendation 2, 5), prisoner’s have the right to privacy, and the information provided to victims should not reveal personal details of offenders, rather a general overview of the system and processes.

Justice Action Submission Recommendation 2:
Victims should not be notified of changes to the security classification of a prisoner unless it could affect their safety.

Justice Action Submission Recommendation 5:
Both the victim and the offender should have the right to privacy protected in legislation

Law and Justice Committee Recommendation 7:
Victim Updates on Offender

That the Corrective Services NSW develop, in consultation with victim support groups and Commissioner of Victims Rights, a form to be provided to victims of inmates sentenced to life imprisonment following sentencing that includes a list of matter that victims can nominate to receive updates about, and that this form also be made available to current victims of inmates sentenced to life imprisonment.

Committee Comment
The committee stated that concerns regarding reclassification will no longer exist if recommendation 1 is adopted, where lifers will be subject to a separate ‘lifer’ classification system and cannot be reclassified.

The committee notes that victims should not be involved in the reclassification or custodial decision-making processes of lifers because they are matters for internal management of prisons. They emphasise that the consideration of the victim where the offender is a lifer is not less worthy, rather than to say that victims will never need to review the custodial management of the life prisoners, given that they will never be released.

The committee’s conclusion is that victims of lifers should be educated about the custodial management and classification systems enough to be able to interpret the rationale behind any processing decisions.

Perspective of Justice Action
As outline in its Submission (Recommendation 2), Justice Action supports the Committee’s view that victims have no influence in the custodial decision-making processes of lifers because they are matters for internal management of prisons. Instead, victims should be educated about the process so that they are able to understand the rationale behind the decisions made. The information updates provided to victims, based on a list of matters to be determined, should not breach a prisoner’s right to privacy. Information should not disclose an offender’s personal information unless there is a risk to the safety of the victim. This may include placement in a correctional facility within close proximity to the victim. Justice Action advocated these issues in their Submission to the NSW Legislative Council Inquiry, as outlined in the recommendations below.

Recommendation 1
In accordance with principles of the Rule of Law, victims should have no influence on the sentencing or post-sentencing processes of the justice system relating to the offender.

Justice Action Submission Recommendation 2:
Victims should not be notified of changes to the security classification of a prisoner unless it could affect their safety.

Recommendation 5
Both the victim and the offender should have the right to privacy protected in legislation.

Law and Justice Committee Recommendation 8:
Commissioner for Corrective Services

That the NSW Government amend the Crimes (Administration of Sentences) Regulation 2014 to state that, in cases where the Commissioner for Corrective Services does not adopt the recommendations of the Serious Offenders Review Council, reasons as to why the recommendations were not adopted must be provided.

Committee Comment
The Serious Offenders Review Council has the important role of recommending to the Commissioner the most appropriate course of action regarding the management of serious offenders and makes these recommendations based on extensive consultation with prison management and health professionals.

The committee notes the evidence received during the inquiry that the Commissioner sometimes only makes short statements when not implementing these recommendations. As such the committee recommends that the Government amend the Crimes (Administration of
Sentences) Regulation 2014 to state that the Commissioner must provide reasons for not adopting the recommendations of the Review Council.

Perspective of Justice Action
Justice Action supports the recommendation requiring the Commissioner for Corrective Services to provide reasons on why he/she did not adopt recommendations of the Serious Offenders Review Council. This requirement increases the transparency of decisions made regarding lifers, and does not allow for decisions to be made based on pressure from the public, media or victims. Justice Action similarly addressed this issue in its submission to the NSW Legislative Council Inquiry (Recommendation 3).

Justice Action Submission Recommendation 3:
Ministerial intervention in administrative matters relating to individuals should not be permitted. This should be the responsibility of the Commissioner upon the advice of expert Committees and Boards appointed for the purpose. The issues are too emotional to expect politicians to resist taking short term political benefit.

Law and Justice Committee Recommendation 9:
Improvements for Aged and Frail Inmates

That the NSW Government consider measures to improve the capacity of the prison system to adequately house, manage and care for aged and frail inmates, including to establish designated units and areas in more correctional centres in New South Wales.

Committee comments
The committee noted that aged inmates who are frail should still retain their classifications despite their limited security threat due to their age or condition. The committee is anticipating the Corrective Services NSW’s classification review that considers the aged and incapacitated inmates.

Perspective of Justice Action
Justice Action supports the humane treatment of all prisoners, including the aged and frail. The provision of designated units and areas in NSW correctional centres allows the aged and frail to serve their sentence in comfortable conditions suitable to their needs. This issue is particularly prominent for lifers, who are serving lengthy imprisonment periods which may see them in prison as an aged or frail individual.

Gaps in Standing Committee on Law and Justice Recommendations

Right to Privacy
When confidential prisoner details are released by Corrective Services, it impedes on an offender’s right to privacy, affects their dignity and may negatively impact on their psychological wellbeing. There is no positive outcome to be gained by informing politicians or the media about changes to the management of a sentence, unless it could affect the safety of victims and the community. This issue could be dodged by solving the problem in a structured and respectful way.

With high profile cases, the media is easily able to exploit the experiences of both victims and offenders for commercial gain. Before a trial there are already significant restrictions on reporting. However, there is a need to create privacy rights for victims of crime after the trial. This needs to also apply to prisoners, as they are the other part of the relationship.

Once the trial is over and the offender has been sentenced, the offender should have the right to serve the court’s sentence without interference from the media, the victim or politicians. This right is inherent in the controlled environment of a prison managed by the state, where there is a current legal obligation for staff not to use their trusted access to sell information to the media. Registered victims should only be notified of changes to a prisoner’s management if it relates to safety concerns. Any other position only disturbs the victim and interferes with the public policy of rehabilitation of the prisoner.” (Life Prisoners Inquiry, p. 7, par. 1.6, p.21).

Analysis of Submissions

Analysis of Submissions to the NSW Legislative Council’s Standing Committee on Law and Justice

Inquiry into the Security Classification and Management of Prisoners Sentenced to Life Imprisonment

There have been 26 submissions made to the Inquiry as of 11th November 2015.

Government Body Submissions

- Serious Offenders Review Council
- NSW Ombudsman
- Inspector of Custodial Services
- NSW Department of Justice
- Legal Aid NSW

Government submissions agreed on the need for rehabilitative programs for life prisoners, as part of the human right to development and as a tool for Corrective Services staff to manage the prison population.

Improved communication with victims was common ground between government submissions. The Inspector of Custodial Services makes special mention of the processes by which the Victims Register communicates with registered victims and states that it is not sufficient (pg. 12-15). Legal Aid NSW specifies that victims should be informed of procedures in classification, but should not have a role in influencing these decisions (pg. 6).

There was also a general consensus that Corrective Services and the Commissioner should act without external influence from sources such as the media. The Serious Offenders Review Council and Legal Aid NSW emphasise that prison is given as punishment; there should not be further punishment inside prison through manipulation of security classifications and exclusion from prison life and rehabilitative programs (pg. 1; pg. 6). The Inspector of Custodial Services (Inspector) emphasises the need for an objective classification system that would stabilize prison management (pg. 18-19). Legal Aid NSW supports this argument (pg. 5). 

The NSW Ombudsman stated that while the views of victims should be considered, they ‘should not carry disproportionate weight’ (pg. 2) and that all inmates should have the opportunity to make reparation to the community (pg. 3). Importantly, the NSW Ombudsman stated the importance of dealing with life prisoners individually and not as a class of persons (pg. 4).

Victims’ Group Submissions

- Enough is Enough Anti-violence Movement
- Homicide Victims’ Support Group
- Victims of Crime Assistance League (VOCAL)
- Support After Murder Inc.

Major victims’ groups all agreed that rehabilitation programs should be accessible to all prisoners. Funding was the only qualification on their arguments. Notably, the Homicide Victims’ Support Group suggested that ‘rehabilitation be directed towards providing opportunities for ‘atonement’… and respecting Australia’s fundamental human rights obligations’. Rehabilitative programs, or other privilege schemes as suggested by Victims of Crime Assistance League (VOCAL), were agreed by victims’ groups to be a tool to aid Corrective Services staff in their management of prisoners.

In reference to media and public interference in the role of Corrective Services and the Commissioner, Enough is Enough stated that ‘justice begins where revenge ends’.

All major victims’ groups agree that the information provided to victims about security classifications and prison life is sorely lacking, allowing misinformation to spread and creating the situation that occurred with Christine Simpson. The Homicide Victims’ Support Group specifically recommended that there be a regulation introduced that Corrective Services provide information to victims about the impact of classification on the day-to-day life of inmates.

The Homicide Victims’ Support Group and Support After Murder Inc. recommended that the Victims’ Register be an ‘opt-out’ rather than ‘opt-in’ service, as this would ensure victims are engaged soon after the crime and can be better managed as a representative group within society.

The submission of Support After Murder Inc. stated that victims should be consulted and involved regarding changes in classification of life prisoners. Support After Murder Inc. makes the comment that more employees are needed in the Victims Register Department. While not specifically mentioned by all victims’ submissions, increased funding to victims’ organisations would ensure the improved communication to victims that is an priority agreed upon in all submissions.  The Homicide Victims’ Support Group emphasises that its role is to support the victim and recommends expansion of financial and psychological assistance available to victims.

**While compensation schemes form an important element of victim support, increased funding to services for victims would perhaps be more beneficial to victims than compensation, especially in restorative justice terms.**

Prisoner Submissions

- Submission No 2 Name Suppressed
- Submission No 4 Name Suppressed
- Submission No 25 Name Suppressed

Prisoner submissions all acknowledge the role of the media in community understanding of imprisonment and believe that the media has skewed public opinion of prisons. It is also mentioned that living in prison without hope creates room for violent extremism. Many submissions assert that being in prison is the punishment dictated by the judge at their sentencing hearing and that restrictions inside prison add further punishment, making prison life almost unbearable.

Prisoner submissions assert that rehabilitative programs are central to their wellbeing in prison and tense situations between staff and inmates could be relieved if incentives were provided for good behaviour. Common amongst prisoner submissions is the belief that Corrective Services should act independently of external influences such as the media, and that victims should have no role in determining the treatment of prisoners.

Non-Government Organisation Submissions

- Law Society of NSW
- Community Justice Coalition
- Women in Prison Advocacy Network (WIPAN)
- Justice Action

Non-government organisation (NGO) submissions to the Inquiry agree that prisoners should have access to rehabilitative programs.

The Law Society of NSW recommends that security classifications be reformed to increase stability. All NGO submissions agree that victims should not influence classification of prisoners. The Law Society of NSW adds that victims ‘have the right to access information which informs them and supports them’ (pg. 2). The Community Justice Coalition (CJC) specifically mentions human rights law and states that ill treatment of prisoners constitutes torture (pg. 2). The CJC also emphasises the need for impartiality and objectivity in prison management (pg. 4).

The Women in Prison Advocacy Network (WIPAN) submits that victims should not have a role in sentencing or classifications, and instead supports principles of restorative justice to build an inclusive society.

Others

- Submission No 3 Name Suppressed (retired nursing sister)
- Robert Shaw Consulting
- Mr. Eric Snowball
- Dr. Martin Bibby (philosopher)
- Rev Colin Sheehan (Corrective Services Chaplain)
- Ms. Irina Dunn (Director of Australian Writers’ Network)
- Submission No 18 Name Suppressed
- Dr. Serena Wright (criminology researcher)

The remaining submissions from members of the public agree with all other submissions, that victims need more support to keep them properly informed. Like other submissions, they concur that prisoners should have access to rehabilitative programs. Submissions all mention the idea that hope is necessary to support life prisoners and that while victims need to be supported, they or the media should not affect prison management.

Dr. Serena Wright expresses grave concern that a single Minister can influence Corrective Services matters on the basis of ‘emotive…public sentiments’. Dr. Wright incorporates the notion that rehabilitative programs offer ‘hope and opportunities for engagement that act to support compliant and legitimate behaviour’. Reverend Colin Sheehan makes particular mention that retributive justice is primarily negative and emphasises that the current system is meant to be objective. 

Life Prisoners' Inquiry

NSW Legislative Council's Standing Committee on Law and Justice: Inquiry into the Security Classification and Management of Prisoners Sentenced to Life Imprisonment

This NSW Parliamentary Inquiryis about to consider a proposal for exclusion and punishment more severe than ever before. It will consider reducing prisoners serving total life to the status of “living dead”. They would be denied the opportunity for self development, and would be held under deliberately destructive high security conditions for the rest of their lives. Such changes would effectively legitimise torture and violate the United Nations Declaration on the Right to Development. The proposal violates fundamental moral and legal principles in a civilised society. 

Response to the Standing Committee's Report
Hearing report: Life Prisoners Inquiry 

Transcript of the Inquiry hearing
Channel 9 Report on the Life Prisoners' Inquiry 
The Huffington Post Report on the Life Prisoner's Inquiry 
Media release: "Life Prisoners Give Evidence - Life After Life" 23rd November 2015
Media release: "New Punishment Regime Opposed by Victims Groups" 19th November 2015
Media release: "Life Prisoners' Protest" 29th October 2015
Analysis of Submissions
Download Justice Action's Full Submission
Download the Executive Summary of JA's Submission

This situation follows the recent TV exposure of a victim’s grief and anger after hearing that the offender would be classified under reduced security.

The Inquiry was established at the request of the Minister of Corrective Services, David Elliott, following his intervention in the reclassification of lifer Andrew Garforth. The Commissioner of Corrective Services decided to reduce Garforth’s security classification from A2 to B on the recommendation of the Serious Offenders Review Council. This reclassification would have allowed Garforth to apply for work and rehabilitation courses. The Council notified Christine Simpson, the mother of the victim, of the classification change. She contacted the media and her story was broadcasted on Channel 9’s A Current Affair on the 13th of July 2015.

Mrs Simpson then created an online petition to have the reclassification revoked.  The petition gained 30,000 signatures in 24 hours.  Under media pressure Minister Elliott then ordered Commissioner Severin to revoke Andrew Garforth’s reclassification. He later ordered all other total lifers be returned to maximum security.

The Inspector of Custodial Services examined what had occurred and found that the Minister’s action in response to media attention was illegal. Minister Elliott was legally required to consult the Serious Offenders Review Council before his decision. He then went through the motions of consultation and made the same decision.

The classification and treatment of lifers based on anything other than security offends many principles of the justice system.  This submission to the Inquiry focuses specifically on the following principles.  

THE EXECUTIVE SUMMARY OF THE JUSTICE ACTION SUBMISSION IS PASTED BELOW.

Philosophy of Hope

At the core of both the criminal justice system, religious and humanist beliefs lie the notions of human dignity, the ability to atone for past mistakes and forgiveness. For example, Jesus preached the ethnic of forgiveness, reconciliation and love for each human individual, whilst Allah is the Forgiving and the Merciful. Such religious notions emphasise the importance of rehabilitation and just punishment in facilitating a safer, more moral society.  The notion of “an eye for an eye” represents a restraint on revenge or retaliation.  This principle is based on the idea that human beings were created by God, and thus will always exist in relation to God, regardless of their actions.

Those who commit crimes should be punished, but their punishment should never deny their dignity or humanity. Without hope and rehabilitation total life prisoners would become the “living dead”. They would have no opportunity or resources to develop spiritually and individually. Instead they would simply remain the people they were when convicted, awaiting their impending death.

The Rule of Law

The Australian justice system is based upon the Rule of Law. According to A V Dicey (The Law of the Institution (1885)), the Rule of Law embodies the notion that there should be the existence of regular law or rules as opposed to the arbitrary wishes of people. John Finnis (Natural Law and Natural Rights, 1980) further elaborated on the principle of the Rule of Law determining it requires clear prospective laws which are not open to a number of interpretations.

In so doing, rules must be coherent and sufficiently stable to allow people to be guided by their knowledge of the content of the rules. The people with authority to make, administer and apply the rules must be accountable and administer the law consistently and in accordance with its tenor. It follows that victims cannot be involved in sentencing or post sentencing processes as they lack the ability to view the case objectively.

Victims and their experiences are acknowledged through Victim Impact Statements (VIS).  According to Section 28 of the Crimes (Sentencing Procedure) Act 1999, a VIS can be read out and considered at any point after conviction and before sentencing. Victims' involvement may result in offenders being treated inconsistently, which undermines the notion of all individuals being equal in the eyes of the law.  Victim interference in the sentencing process brings the threat of introducing subjective considerations into this process.

As part of the Rule of Law, it is the judiciary who determines an offender’s sentence. The sentence is objectively determined based on considerations of proportionality to the harm caused by the crime, thus drawing on the idea of retributive justice. It is this objectivity of the court in making these assessments that secures the equality of treatment before the law and ensuring the Rule of Law is adhered to. Any attempts by victims or politicians to alter or increase punishment undermine the fundamental principles of our criminal justice system.

In contrast, the use of VIS in the reclassification of prisoners is not legislated and is provided for only under guidelines that have been written by the Serious Offenders Review Council. The use of VIS is applied in an ad hoc manner. The usage of VIS in reclassification is a breach of the Rule of Law as there is no accountability in the application of VIS and no guarantee all persons will be treated in the same manner and the policy not arbitrarily enforced in circumstances where a particularly vocal victim exists.

Reconciliation with Victims and the Community

Rehabilitation of offenders, irrespective of sentence or security classification, enables prisoners to reconcile with themselves, the victims and the community.  Part of this process of reconciliation involves reflecting upon and attempting to make sense of what has occurred. For prisoners, it is an opportunity to interpret their actions and understand the harm they have caused.  As a result, access to rehabilitative programs and services should not be dependent on the prospect of release.

The prisoner’s deeper insight into the impact of their actions can have a positive impact on the experiences of victims.  This provides victims with a means to come to terms with what has occurred, gain comfort and closure and attempt to move forward. A prisoners’ greater remorse for their actions and empathy for the victims’ experiences allows for victims’ greater closure and could provide a certain amount of comfort. Even if the victim does not currently wish to engage with the offender, the rehabilitation of the prisoner remains critical as it creates the potential for reconciliation and for victims to seek closure in the future if they later wish to do so. 

Prospect of Release

Every individual is legally entitled to the prospect of being released, even if they are serving a total life sentence. This entitlement is the Royal Prerogative of Mercy where the offender has the power to request release under Section 114 of the Crimes (Appeal and Review) Act 2001.

Individuals who are serving a sentence of total life are entitled to apply for a review of their sentence if they can argue, for example, that they have paid sufficient penalty, are no longer a public risk, have changed as a person and should be given conditional liberty.

Prisoners are therefore entitled to rehabilitative opportunities as these services prepare prisoners by putting them in a positive position to apply to be considered for release. This reaffirms the importance of rehabilitative services and necessitates their availability.

The Right to Development

The right to development is recognised by the United Nations as a human right:

“The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.” - Article 1.1, Declaration on the Right to Development

Educational and rehabilitative programs provide ways of enriching the cultural, social and spiritual lives of people in prison. All prisoners, regardless of sentence, have the right to access prison programs and services for personal development as they do not have any alternative supplier for development services while in prison.

The Right to Privacy

In high profile cases, the media is easily able to exploit public interest for commercial gain. Before a trial there are already significant restrictions on reporting. There is a need to also create privacy rights for victims of crime after the trial. This needs to also apply to prisoners as they are the other part of the relationship.

Once the trial is over and the offender has been sentenced, the offender should have the right to serve the court’s sentence without interference from the media, the victim or politicians. This right is inherent in the controlled environment of a prison managed by the state, and the current legal obligation of staff not to use their trusted access to sell information to the media. Registered victims should only be notified of changes to a prisoner’s management if it relates to safety concerns. Any other position only disturbs the victim and interferes with the public policy of rehabilitation of the prisoner.

Security Classification

The only consideration when deciding the security classification of any prisoner should be the prevention of prison escapes. Any attempt to deliberately punish certain prisoners through administrative means outside the sentencing court’s decision is an interference with the authority of the court. Changes to sentences would require a statutory change, not the personal assessment of a minister for political purposes. This is a clear breach of the Separation of Powers as the Minister has no weight with regards to the decisions of the Judiciary.

Reassessment of security classifications is an expert and informed matter for which there are very significant structures involving Committees with additional checks. The opinions of victims, media or politicians is irrelevant, and their inclusion is neither just nor efficient for the stated public purposes of imprisonment. 

Removing the possibility of reclassification and hope creates an extremely dangerous environment for staff and other prisoners. It removes any incentive for lifers to behave well and refrain from harming themselves or others.

To deliberately deprive lifers of the right to personal development would be removing their humanity - defined as torture – and places greater burdens on taxpayers and correctional facilities management. The idea of being deliberately destructive degrades us as a community.

Lifers invest decades of effort in the hope of better treatment in the future, access to rehabilitation, education programs, employment and possible freedom. It is extremely unlikely that lifers would attempt to escape, as it is counter-productive to their review for potential release. After such a period of institutionalisation, prison becomes their home isolated from the outside world.

Recommendations

Justice Action’s recommendations emphasise the key principles of hope, fairness and community building in a corrective environment for all people including those sentenced to total life.

Recommendation 1

In accordance with principles of the Rule of Law, victims should have no influence on the sentencing or post-sentencing processes of the justice system relating to the offender.

Recommendation 2

Victims should not be notified of changes to the security classification of a prisoner unless it could affect their safety.

Recommendation 3

Ministerial intervention in administrative matters relating to individuals should not be permitted. This should be the responsibility of the Commissioner upon the advice of expert Committees and Boards appointed for the purpose. The issues are too emotional to expect politicians to resist taking short term political benefit.

Recommendation 4

Every prisoner should be encouraged to improve their behaviour and develop personally, with the prospect of hope and reconciliation with the community.

Recommendation 5

Both the victim and the offender should have the right to privacy protected in legislation. 

Comparing zoos and prisons: Worse Than Animals

gorilla

This unique analysis compares the treatment of zoo animals and prisoners. The findings reveal that Taronga Zoo's gorillas are given twenty four times more space than people held inside the private Parklea prison. 

This research shows that zoos have stringent safeguards maintaining much higher standards than prisons to ensure that captive animals receive adequate care. 

The overcrowded cells article on the Sydney Morning Herald website can be viewed here.
Media Release: 
Comparing Zoos and Prisons: Worse Than Animals 23 November 2015
The report is available for download here.

In April 2015 the Report of the Inspector of Custodial Services “Full House” exposed the inhumane conditions in NSW prisons due to overcrowding caused by an exploding prison population of 12.5% increase per year.  The Inspector declared: “the state treats inmates in a way that denies them a modicum of dignity and humanity.” 

The publicly exposed lack of enforceable standards was the basis for this unique analysis comparing people locked in prisons and animals in zoos, not previously undertaken elsewhere. 

The Inspector's Report was based upon the limited space for each prisoner in breach of Health Regulations, poor access to health care and inadequacy of facilities. Health Regulations require 5.5m2 to be allocated to each person in prison, yet Corrective Services claimed a special exemption from the Health Minister and subsequently argued that 4m2 might be enough. There is no punishment for breaches and no mechanism for enforcement. 

That space compares to the 72m2 that gorillas must have under NSW legislation. Breaches of obligations to animals are enforced by imprisonment.

One explanation for the differences is that the public can see animals in zoos, see their conditions and are encouraged to understand their needs. People in prisons however are in places of isolation where they are put into cages and cells where no-one can see them or their conditions. They cannot show their anguish and are not able to talk to the public. Their conditions are not visible and therefore the administration is not accountable to the public.

Zoo enclosures simulate natural habitats in order to ensure the health and well being of the specific species. However, prison cells are homogeneously designed and don’t cater for individual needs. They hold inmates in conditions starkly different from their normal lives.  Captive animals in zoos roam in larger spaces for long periods to be seen, but incarcerated people are held in cells with strangers for around eighteen hours a day with no ability to leave.

The gorilla is dangerous by nature but the prisoner is statistically very unlikely to be dangerous.

The existing rules in place to protect the rights of inmates are largely regulatory rather than legislative. For example, the Royal Australian College of General Practitioners has codified Standards for health services in Australian prisons; the NSW, ACT, Northern Territory, Queensland, Victoria, Tasmania and Western Australia Corrective Services Departments have adopted the Standard Guidelines for Corrections in Australia. While the Crimes (Administration of Sentences) Act enshrines inmates’ rights to medical treatment it is largely concerned with legally empowering correctional facilities to detain, order and control inmates.

This report recommends greater accountability through public and media scrutiny of the prison system, subject to privacy rights. Damaging citizens through degrading treatment rather than helping them, causes greater danger upon release and creates crime. Overcrowding should cease by adopting alternative sentencing measures. Legislation enforcing living standards should be adopted. Technological advances applying to humans should give prisoners access to computers in cells as an expression of the human right to develop.

 


Prisoner Storage Rights

When people are arrested their ability to keep control of property is limited. The successful campaign in NSW has ensured this right remains safeguarded.

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Prisoners' Right to Storage

storage-unit.jpg

Prisoners in NSW are at risk of losing all of their personal possessions held in storage, from the time of their arrest. They were given less than two weeks notice to arrange for a person outside to collect their stored items or risk having them destroyed or sold. This situation occurred due to a change in government funding for Prisoners’ Aid Association. It maintained a storage facility for one thousand prisoners. This property includes documentation necessary for effective resettlement upon release. The right of prisoners to store their property after their arrest is not being respected, though it is clearly a legal and civil obligation. A video of interviews is here.

The right to store personal property after arrest is rarely respected, despite the state’s obligation to protect it. The campaign that defended the NSW storage program is being extended across not only Australia, but also internationally.

After thirty years of fulfilling this obligation, in 2013, Corrective Services NSW discontinued funding for the Prisoners Aid Association’s storage program. One thousand prisoners were told their property would need to be taken from storage or destroyed; understandably, they were outraged. This experience highlights the powerlessness of prisoners at the very beginning of their prison sentence, when they have been isolated from support.

Justice Action and the Prisoners’ Aid Association successfully campaigned to ensure that prisoners retained the right to storage, overturning the decision. The campaign resulted in $295,000 of funding for the Prisoners’ Aid Association for storage services. During this campaign, it became clear that prisoners everywhere (including mental health detainees) were also vulnerable to loss of their property.

Storage of personal property is necessary to ensure that prisoners, including those held in remand, do not lose identification documents and property necessary for future employment, housing and integration into society as well as possessions of sentimental value. Transitioning back into society after many years behind bars is difficult enough without the need to start their life from scratch. The undermining of this property right is destabilising and dehumanising for people who are already made vulnerable by removal from their homes, families and communities. Without this program, many prisoners are released owning nothing. This issue is of particular concern for those who are later acquitted and return to empty homes or to face the possibility of no home at all.

This video by Justice Action illustrates what it meant for prisoners to lose access to storage of their possessions: goo.gl/zHWtRN

Without the existence of secure storage facilities, personal items are either discarded or left under the care of family, friends, and/or the partners of the individual, leaving prisoners dependent on their support. Given that these relationships do not necessarily remain static, this is not always a stable solution, meaning that the security of prisoners’ possessions is left vulnerable to the willingness, honesty and capacity of their contacts within the wider community.

The United Nations has set minimum standards in relation to the right to personal storage. They stipulate that all items belonging to a prisoner must be placed in safe custody and returned upon release. However, even in the face of a clear pre-existing international standard, many jurisdictions lack such protections.

The Stark Reality                          

Imagine being forcibly taken away from your home and being charged by the police as you are pulled away in handcuffs.  There is no opportunity to phone a friend or make prior arrangements. There is no guarantee that your property is protected against any disasters. When rent cannot be paid because you are locked up, your landlord can discard everything you have ever owned. That includes every item, gift, photo of loved ones and clothing. Certificates and formal documentation are lost too. This could happen even though you have not been found guilty of any charge but held on remand for up to two or three years. For many prisoners, this is the stark reality.

Regardless of whether they are guilty or innocent, convicted or acquitted, when individuals are arrested, they lose control over their possessions and are unable to protect them. Many lose everything except the clothes they were wearing on arrest.

Threat to Funding for Storage of Prisoners’ Possessions

For the past thirty years, the Prisoners’ Aid Association of NSW provided facilities to store prisoners’ personal possessions. They collected property from the prisoners’ homes and from the police to have it stored at no expense to the individual, after notification by the police or contact with the prisoner. At the very least, this ensured that precious possessions were secured and would be readily available for collection upon release. 

However, in September 2013, Corrective Services NSW decided that funding for this service would be discontinued after the 30th of June 2014. Prisoners were given less than two weeks notice to arrange for a person outside to collect their stored items, or risk having them destroyed or sold. This situation occurred due to a change in government funding for the Prisoners’ Aid Association.

In light of the ramifications of the funding cut for both individuals and state government agencies, Mr. Craig Baird, manager of Prisoner’s Aid Association, stated:

“The decision to deny these services to people seen to be innocent until proven guilty is remarkable. For those eventually found guilty our services play an important role in their successful reintegration into the community post release…On so many levels the decision to cut these services defies common sense”.

This situation caused significant disturbance across the whole system, affecting one thousand prisoners. One such prisoner wrote to us complaining of how the Prisoners’ Aid Association has dealt with the matter. He had been incarcerated for twenty-four years and all his possessions from his thirty years prior are contained in a box at the storage facility.

He explained:

“I have one box of personal possessions at their storage facility. All that I have to show for my thirty years before gaol.  I’m not even exactly sure what’s in the box exactly… I know it contains photos and now I stand to lose those, Lord knows what else…What pisses me off, other than the fact that I thought my stuff was safe with them, the Association was advised in September 2013. They don’t get around to telling those affected ‘till February 2nd2014 and I don’t receive the letter ‘till today [18th February]”.

The prisoner mentioned above is only one of a thousand who was given the deadline of 1st March 2014 to retrieve their possessions or nominate a friend or relative to receive them. If this was not done, they were at risk of having their belongings disposed of without receiving the profits from sale.

Where Does the Law Stand on this Matter?

Domestic Law

In common law, a duty of care is owed if loss can be reasonably foreseen.[1] By this token, it could be argued that police officers owe a duty of care to protect the possessions of the individual they are arresting. By forcibly taking an individual away from their home and providing them with no opportunity to make arrangements for the storage of their possessions, it is reasonably foreseeable that their personal property would be damaged in the prisoner’s absence. A responsibility passes onto the person who denies the individual this capacity. In addition, the Police Act 1990 (NSW) states that one of the functions of the police is to provide protection to property from damage.[2] Moreover, the rule of law obliges them to safeguard everyone’s property, especially if their actions cause vulnerability.

While legislation in NSW affords some protection of property rights, it is clearly limited. The Crimes (Administration of Sentences) Regulation 2014 (NSW) allows for some storage of possessions (mostly identification documents) at the correctional centre or for the return of possessions to family and friends.[3] There are two major faults with these provisions. Firstly, the provisions only have the scope to cover possessions brought into the correctional facility with the individual or by police at the time of arrest. In practice, it generally amounts to a wallet and the clothes worn at the time of arrest, and not much more. This provides no protection for the individual’s possessions left in their unlocked homes when arrested. Secondly, the granting of protection of property is not guaranteed, as it is discretionary and based on the General Manager’s decisions.  

Other states vary in their approach to this matter. The Victorian Association for the Care & Resettlement of Offenders (VACRO) will hold a limited amount of prisoners’ documentation. There is also Prisoners’ Aid in the ACT that provides similar services to its NSW equivalent. In addition, it appears that Prison Fellowship has done some work in this area. Outcare in Western Australia provides accommodation for prisoners upon their release and stated that if an individual gets sent back to prison they will store their possessions. Housing Commissions also hold property for three months and then destroy it. Dealings involving the property of prisoners seem to be discretionary and even if items are stored; they may disposed of or sold at any time.[4] There is no existing facilitative right for prisoners to have their property stored by prison authorities in Tasmania.  

International Law

An individual’s right to their property is enshrined in international law. The Universal Declaration of Human Rights (UDHR), Article 17, clearly identifies this right of property ownership, stipulating, “no one shall be arbitrarily deprived of his property”.[5] Indeed, the United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) specifically advocates for the retention of prisoners’ property. Article 43 states that “all money, valuables, clothing and other effects belonging to a prisoner...shall on his admission to the institution be placed in safe custody”[6] and “on the release all such articles and money shall be returned to him”.[7]

While the Standard Minimum Rules are not legally binding, according to the Australian Human Rights Commission, “those principles elaborate the standards which the international community considers to be the minimum acceptable treatment of persons deprived of their liberty”.[8] Meeting these standards is necessary for compliance with Article 10 of the International Covenant on Civil and Political Rights, [9] which requires that persons in detention be treated humanely.[10] In an attempt to comply with the Standard Minimum Rules, the Australian government created the Standard Guidelines for Corrections in Australia, which were revised in 2012.

In 2011, Australia underwent its first Universal Periodic Review which is a review conducted by the United Nations Human Rights Council on the human rights record of each member state. The Review “aims to improve the human rights situation in all countries and address human rights violations wherever they occur”.[11] The Australian government agreed to the UN recommendation to legislate to ensure the humane treatment of prisoners. The property storage right must be part of this agreement.

It is clear that at the international level, the service of safe custody for possessions, which Prisoners’ Aid formerly provided, is the minimum standard of protection that should be afforded to prisoners. Currently, this is barely addressed within the Australian legal sphere. All jurisdictions should have these international standards in mind when it considers the discontinuation of funding or consult with prisoners regarding what services they require.

The Campaign in NSW

Initially, NSW Minister for Justice Greg Smith and his team did not show concern for this issue. On the 10th of March 2014, Justice Action asked for a meeting to ensure the long-standing service of prisoners aid existing for over 30 years was retained. On the 25th of March, Mr Smith spoke through the Department and nonchalantly explained that the Inmate Support Stream had been stopped, money had been re-prioritised and that “changes to funding arrangements can be challenging”. They stated that they have “no involvement in the disposal of property held by PAA” reflecting their dismissive attitude towards this matter. In response to our request they stated, “I regret that I am not able to meet with you to discuss this issue”.

In November 2013, Shadow Minister for Justice, Mr Paul Lynch, raised this issue in parliament.[12] He questioned why funding had been cut for Prisoners’ Aid and why the Inmate Support Stream, which previously paid for the service had been cancelled. The response of the government was that the funding program had been reviewed. Mr Smith avoided explaining why the review had abandoned prisoners’ property storage.

Neither Smith nor his department asked prisoners and their support organisations how they wanted the funding for their services to be distributed or who was to provide these services. This was a corrupt process where public money was given to third parties who didn’t supply the services prisoners required or preferred.

Prisoners’ Aid Association Receives Funding to Continue Storage Services

In November 2014, the NSW Attorney General and Minister of Justice Brad Hazzard announced that the decision to discontinue storage services had been overturned. Prisoner’s Aid Association was awarded $295,000 by Corrective Services NSW to provide storage services to Prisoners. This service is available to newly received inmates at the Metropolitan Remand and Reception Centre, Silverwater, Parklea, and Dawn de Loas.

The re-instatement of funding to the Prisoner’s Aid Association reinforces the importance of property rights and its role in aiding prisoner reintegration into the community, enabling them to rebuild a life post-release. Property rights are integral to the social and material livelihood of individuals and are necessary for an effective rehabilitation process.

In the future, it is hoped that these storage facilities will be developed into a social enterprise employing ex-inmates, providing them with employment skills in logistics. This will be a step further in developing storage programs that consider the needs of prisoners by offering the opportunity to empower prisoners and facilitate their reintegration into the community.

Conclusion

The reinstatement of storage services in NSW will ensure prisoners’ property rights and assist them to re-connect to the society after release. Unfortunately, not all states and territories have offered the same or similar service. We believe that storage service is a vital service to guarantee fair treatment of all prisoners and therefore should be provided in all states and territories.


[1]Donoghue v Stevenson [1932] AC 562.

[2]Police Act 1990 (NSW) s 6.

[3]Crimes (Administration of Sentences) Regulation 2014 (NSW) ch 2 pt 2.1 div 2.

[4] See, e.g. Prisons Regulations 1982 (WA) reg 36B.

[5] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) (‘UDHR’) Article 17.

[6]Standard Minimum Rules for the Treatment of Prisoners, ESC Res 663C (XXIV) UN ESCOR, Supp No 1, UN Doc E/3048 (31 July 1957), amended by ESC Res 2076 (LXII) UN ESCOR, Supp No 1, UN Doc E/5988 (13 May 1977) (‘Standard Minimum Rules’) Article 43.

[7]Ibid.

[8]Human Rights and Equal Opportunity Commission, A Last Resort? National Inquiry into Children in Immigration Detention (2004), 101.

[9]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976).

[10]Above n 8, 102.

[11] Attorney General’s Department, Australia’s Universal Periodic Review (2010) 1.

[12] NSW Legislative Assembly, Questions & Answers Paper No. 190 (12 November 2013) 4416.

 

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