On March 14th 2022, Justice Action received correspondence from Senior Solicitor Tom Allchurch, on behalf of the Commissioner of Corrective Services, regarding the ongoing proceedings pertaining to the Supreme Court case of COVID-19 in NSW prisons. 

The Commissioner of Corrective Services has labelled the proceedings as ‘untenable and nugatory’ due to two reasons. Firstly, the Court concluded in the case of ‘Francom v Commissioner of Corrective Services’ that the Commissioner cannot be forced to exercise the power to release inmates on parole. Secondly, the provision which granted the Commissioner with this power under the Crimes Administration of Sentencing Act 2017 (NSW) (‘Crimes Act’) will expire on the 26th of March.

Consequently, Allchurch, on behalf of the Commissioner of Corrective Services, has requested that Justice Action withdraw the proceedings and in doing so, not become liable for the legal costs incurred by the Commissioner. Allchurch also stated that if Justice Action does not withdraw the proceedings, they will seek the costs of proceedings.

It is important to note that other states and territories do not enforce a similar provision to that of the Crimes Act yet they seek to ensure the health and safety of prisoners. There are currently hundreds of prisoners infected with COVID-19 in NSW and this is likely to increase due to the lack of social distancing within prisons. The court must uphold their responsibility in protecting the health and wellbeing of prisoners especially during this health crisis.

JA is yet to determine what it will do.