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 2^nd2014 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 1^st 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.Prisoners Right to Storage 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.

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[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, 3^rd sess, 183^rd 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.