Prisoners - Legal Information Access Centre - NSW Government

HOTTOPICS
2008 > hot topics 67
LegaL issues in pLain Language
This is the sixty-seventh in the series Hot Topics:
legal issues in plain language, published by the Legal
Information Access Centre (LIAC). Hot Topics aims to
give an accessible introduction to an area of law that is
the subject of change or public debate.
Prisoners
1 introduction
Australia’s convict origins – emergence of the prison – ‘panopticon’
versus NSW.
2 the prison population
Costs – community corrections – imprisonment rates – prisoner
characteristics – inmate health – socio-economic status – offences
committed – changing prison environment – recidivism and post-release
– prison performance indicators.
7 how imprisonment rates vary
Australian states and territories – high Indigenous imprisonment rates
– international imprisonment rates – United States prison population –
Scandinavian countries.
11 prisoners’ legal issues
Criminal justice issues – civil issues – family issues – legal services –
barriers to justice – prisoners and the media – prisoners as legal subjects.
14 international human rights laws applicable to prisoners
ICCPR – standard minimum rules – UNCAT and OPCAT –
‘Supermax’.
19 prisoners as citizens
Attempted removal of prisoner franchise – R v Benbrika – Roach v
Australian Electoral Commission.
22
27
imprisonment in nsW
Laws and policies – prisons in NSW – correctional centre security
classifications – reception – induction processes – prisoner classification
– separation and segregation – searches – personal property – discipline
and punishment – banking and purchasing – mail – telephone calls –
visits.
Further information
AUTHOR NOTE: Emeritus Professor David Brown
taught criminal law and criminal justice for 34 years at
the University of NSW, Sydney, Australia. He has been
active in criminal justice movements, issues and debates
for three decades and is a regular media commentator.
He has published widely in the fields of criminology,
imprisonment and prisoners’ rights.
DESIGN: Bodoni Studio
ACKNOWLEDGMENTS: The publisher wishes to
thank both the Australian Institute of Criminology
(p 3) and the Australian Bureau of Statistics (p 7) for
permission to reproduce graphical information.
PHOTOS: Main cover image – Age fotostock; pp 9 &
17 – FairfaxPhoto; p 12 – Photolibrary; p 14 – Newspix;
p 27 – Chicago History Museum.
state Library of nsW
cataloguing-in-publication data
Author: Brown, David (David Bentley).
1948-
Title:
Prisoners/[author: David Brown;
edited by Cathy Hammer].
Publisher: Sydney, N.S.W.: Legal Information
Access Centre, 2008 (2009).
Subjects: Prisoners – Legal status, laws, etc. –
Australia
Civil rights – Australia
Other Authors/
Contributors: Legal Information Access Centre
Series: Hot topics (Sydney, N.S.W.); no. 67
Dewey Number: 344.940356
hot topics, issn 1322-4301, no. 67
Hot Topics is intended as an introductory guide only and should not be interpreted as legal advice. Whilst every effort is made to provide the most
accurate and up-to-date information, the Legal Information Access Centre does not assume responsibility for any errors or omissions. If you are
looking for more information on an area of the law, the Legal Information Access Centre can help – see back cover for contact details. If you want
specific legal advice, you will need to consult a lawyer.
Copyright in Hot Topics is owned by the State Library of New South Wales. Material contained herein may be copied for the non-commercial purpose
of study or research, subject to the provisions of the Copyright Act 1968 (Cth).

Introduction
this issue of Hot Topics aims to provide a range
of information about prisons and prisoners in
australia and nsW in particular. there are many
issues to examine within our prison system –
how imprisonment functions as a method of
punishment, the statistics that demonstrate
the backgrounds of disadvantage of most
prisoners and highlight the over-representation
of indigenous australians in the criminal justice
system. there is some detail provided on the
day-to-day regime for prisoners in nsW and a
discussion of prisoners’ legal rights, including
their right to full citizenship.
AusTrAliA’s cOnvicT Origins
Australia’s first prisoners, British convicts, were centre
stage in the establishment of a European colonial
settler society on Australian shores, placing prisoners
at the heart of a ‘national story’. This experiment in
colonisation through the exile of convicted criminals,
beginning with the establishment of a penal colony at
Botany Bay in 1788 caused ‘the original dispossession of
the indigenous people of this country’. 1
The establishment of the Botany Bay penal colony and
later penal settlements in Van Diemen’s Land (now
Tasmania), Western Australia, Norfolk Island, Moreton
Bay in Queensland and Port Phillip in Victoria, enabled a
revival of British transportation as a form of punishment
after transportation to the American penal colonies
ceased in 1775. Approximately 160 000 convicts were
transported to Australia between 1787 and 1868, most
in the 1820s and 1830s.
emergence Of THe prisOn
Prisons as we know them today are seen by historians
as emerging in the late 17th and early 18th century.
Their emergence is linked to the earlier establishment
of institutions such as the poorhouse and workhouse
in Holland, Germany, France and England in the
17th century. During the feudal period punishment
was predominantly corporal or capital punishment but
with the growth of mercantilism and early capitalism
expressive bodily punishments were curtailed or moved
out of sight and replaced by the prison.
‘pAnOpTicOn’ versus nsW
The ‘panopticon’ (meaning ‘all seeing’) is a rounded
building composed of backlit tiered cells which enabled
one person standing in a darkened tower in the centre
of the circle to keep large numbers of people under
continuous observation. The original design of the
panopticon was published in 1791 by Jeremy Bentham,
an English philosopher and social reformer, trained in
the law.
Bentham published a pamphlet, the Panopticon Versus
New South Wales (1802) arguing that panopticons should
be built in Britain rather than imprisoning people on
hulks or transporting them to NSW. 2 He argued that
the uncertainty of transportation undermined equality
of justice making it ‘a giant lottery’ and that the moral,
economic and reforming benefits of the panopticon
made it superior to transportation. 3 No panopticon-style
prison was ever built in Britain or Australia.
Transportation continued to NSW and to other penal
colonies in Tasmania, WA, Queensland and Victoria,
but by the late 1830s the system came under increasing
attack. In NSW, resistance to being used as a ‘dumping
ground for convicts from Britain’ grew with the demand
to be a ‘free, self governing colony’. In Britain, the
forced labour in the assignment system was increasingly
equated with slavery; floggings and cruelties in the
system were seen as barbaric and uncivilised. Bentham’s
‘lottery’ argument was used to argue for the prison or
penitentiary as the most appropriate form of punishment
– leading to a prison building program in Britain.
Transportation to NSW effectively ended by 1840;
Tasmania followed in 1853, and WA in 1868.
The ending of transportation consolidated both the place
of the prison and that of the State, and displaced the
private interests in convict labour that were influential
under transportation. As the whole Australian continent
was seen as a ‘landscape of exile’ early prisons were
military rather than penal in style without ‘identifying
stylistic or symbolic features’, 4 an example being Francis
Greenway’s Hyde Park Barracks. Later NSW prisons such
as Berrima, Darlinghurst and Parramatta were based on
an English radial design modelled on Pentonville prison
in London, featuring radial corridor wings fanning off
a chapel in the centre. Following a late 19th century
building program, there were three main types of penal
institution:
> penitentiaries housing hundreds of long term
prisoners
> metropolitan and local prisons housing reception,
remand and short and medium term prisoners
> police gaols or lock ups holding remands and
transfers. 5
1. M Finnane, Punishment in Australian society, Oxford University Press, 1977, at p 1.
2. J Bentham Panopticon 1. Selected writings available online at http://oll.libertyfund.org
3. J S Kerr, Out of sight out of mind: Australia’s places of confinement 1788-1988, National Trust of Australia, 1988, introduction by J Kerr, at p 1.
4. Finnane, at p 12.
5. J S Kerr, at pp 3 & 11.
introduction 1

The Prison
Population
there were 27615 prisoners in australian prisons
on 30 June 2008, which is an imprisonment rate
of 169 prisoners per 100 000 adult population.
this does not include people held in police
stations. (the National Police Custody Survey
2002 revealed that in the month of october 2002
there were 27 047 instances of police custody
throughout australia. 6 )
The imprisonment numbers exclude those held in
juvenile detention centres, immigration detention,
psychiatric hospitals, military detention centres, and
other places of involuntary detention. Also excluded
are people serving community corrections orders across
Australia – a daily average of 52 658 in 2006-07, which
is a rate of 329.4 per 100 000 adults. 7
Note: Imprisonment rates expressed per 100 000
adult population are a more sophisticated measure
than the rate per 100 000 total population which is used
elsewhere, including in the international comparisons
set out on p 9.
Prisoners are held in 118 custodial facilities around
Australia, of which seven (holding 17% of the total
prison population) are privately run. More than threequarters
of Australia’s prisoners are held in secure
facilities (76.2%) with 23.8% in open prisons. 8 New
South Wales and the ACT also provide for periodic
detention of prisoners – for example, weekend detention
in custody, allowing prisoners to return home and
continue work commitments during the week.
It is important to note that unlike other federations such
as the US or Canada, in Australia the administration
of and responsibility for prisons has rested with state
and territory governments. There is no federal prison
system and prisoners convicted and sentenced under
Commonwealth legislation are housed in state and
territory run prisons.
cOsTs
In 2006-07 Australian prisons cost $2.3 billion to
run, an average cost per prisoner per day of $245. 9 The
equivalent figure for people in community corrections
is $0.3 billion. So, nearly eight times as much is spent
on prisons as is spent on community corrections, which
handle nearly twice the number of people at any one
time.
In NSW, the Department of Corrective Services reported
in 2001 that the average cost per offender per day on a
community based program delivered by the Probation
and Parole Service was $8.63 compared with $138.93
per day for a minimum security inmate in full time
custody. 10
cOmmuniTy cOrrecTiOns
Community corrections are non-custodial programs
which vary in the extent and nature of supervision, the
conditions of the order, and the restrictions on a person’s
freedom of movement in the community. They generally
provide either a non-custodial sentencing alternative or
a post-custodial mechanism for reintegrating prisoners
into the community under continued supervision. 11
Community corrections in NSW include:
> home detention orders;
> Drug Court orders;
> community service orders;
> probation;
> parole.
The NSW Department of Corrective Services has
responsibility for offenders in the community through
its Community Offender Services.
6. N Taylor and M Bareja, 2002 National Police Custody Survey (2005) AIC Technical and Background paper No 13, p 19.
7. Report on Government Services 2008 at 8.7.
8. As above at 8.4.
9. Report on Government Services 2008 at 8.3 and 8.21.
10. NSW Legislative Council, Select Committee on the Increase in Prisoner Population, Final Report, November 2001, p 107;
available at www.parliament.nsw.gov.au click on ‘Committees’ and from the left under ‘Reports/Gov Responses’ select ‘All (1999+)’, then in
the drop-down menu select ‘Increase in prisoner population’ and click on ‘go’.
11. Information taken from Crime facts info No. 100: Community corrections in Australia, Australian Institute of Criminology, 2005.
2
HOT TOPICS 67 > Prisoners

imprisOnmenT rATes
Australia’s imprisonment rate has doubled since the early
1980s. A significant part of the growth in the prison
population is the growth in remand prisoners who are
awaiting trial and have been denied bail. The proportion
of remand prisoners has nearly doubled in the decade
1997-2007 (see graph below) and is approaching one in
every four prisoners.
In NSW the increasing proportion of remand prisoners
stems from an ever expanding list of exceptions to the
presumption in favour of bail created in the Bail Act
1978 (NSW). In particular, 2002 amendments targeting
repeat property offenders have made bail much harder
to obtain, including for juveniles, as has a recent change
which restricts bail applications to one.
Australian prisoners, rate per 100,000 adults,
1984-2007
200
160
120
80
40
0
Sentenced
Remand
Total
84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07
Source: Australian crime: facts and figures 2007, Australian Institute
of Criminology 2008, available online at http://www.aic.gov.au/
publications/facts/2007/
Having one prisoner out of four unconvicted challenges
the practical effect of fundamental principles like the
presumption of innocence. Some people on remand
will be acquitted and some will be convicted but not
given a custodial penalty. Compensation is not paid to
people held on remand who are acquitted. The average
time spent on remand is between 2.5 and 3 months.
Those appearing for trial on remand are more likely
to be convicted. Remand prisoners are more likely to
lose employment and there are significant effects on
family and dependents. Such high remand figures also
challenge the assumption that punishment is what
comes after the trial and a finding of guilt. For remand
prisoners, rather than punishment following conviction,
it begins upon arrest.
Other factors behind the rapidly increasing prison
population are harder to pin down. Factors identified by
the NSW Select Committee into the Increase in Prisoner
Population in NSW include:
> patterns of offending;
> policing practices;
> legislative changes;
> tougher sentences;
> guideline judgments;
> increased drug use, particularly heroin;
> increasing poverty and disadvantage;
> extent of the availability and accessibility of services. 12
prisOner cHArAcTerisTics
The 2008 national survey, Prisoners in Australia, produced
by the Australian Bureau of Statistics summarises key
features of the Australian prison population: 13
> the average age of male prisoners is 33, and for
females, 34;
> approx 68% of prisoners are aged between 20 and 39;
> substantial increase in the proportion of women
prisoners from1998-2008;
> substantial increase in the proportion of Indigenous
prisoners from1998-2008;
> 55% of prisoners have been imprisoned before;
> proportion of remand prisoners (those held in custody
waiting trial) has nearly doubled in ten years.
inmATe HeAlTH
While there is no national reporting on the health status
of Australian prisoners, the information that is available
indicates that this substantial population group is mostly
from a disadvantaged socioeconomic background, often
has poor physical and mental health status, frequently
engages in risk-taking behaviour and, as a result, has
special health needs. Prisoner health surveys are available
from some states – the 2001 NSW Inmate Health
Survey; the 2002 Queensland Women Prisoners’ Health
Survey and the 2003 Victorian Prisoner Health Study.
Important findings from these surveys include:
> more than half of all male and female prisoners
surveyed reported a history of injecting drug use;
> high proportions of prisoners tested positive for
communicable diseases, particularly hepatitis C,
which is strongly associated with injecting drug use;
> approximately 80% of prisoners were current smokers,
which was over four times the rate of the general
population;
> mental health concerns were common among
inmates.
The NSW Legislative Council Select Committee on
the Increase in Prisoner Population Final Report (2001)
noted that in NSW prisons: 14
> 80% of inmates were incarcerated for offences relating
to alcohol and other drug use;
> 60% of males and 70% of females had a history of
illicit drug use;
12. NSW Legislative Council (see Note 10) at p 33.
13. Australian Bureau of Statistics Prisoners in Australia 2007, (2008), 4517, p 16.
14. NSW Legislative Council (see Note 10) at pp 19-20.
the prison population 3

approximately one-third of males and two-thirds of
females were Hepatitis C positive;
> approximately one-third of males and half the females
had been assessed or treated for mental illness by a
psychiatrist or psychologist at some time;
> 13% of inmates have an intellectual disability;
> 16% of inmates have been sexually abused before the
age of 16;
> 21% of inmates have attempted suicide;
> 40% of inmates meet the diagnosis of personality
disorder.
sOciO-ecOnOmic sTATus
The Final Report quoted NSW Department of Corrective
Services figures which showed:
> 60% of inmates are not functionally literate or
numerate;
> 44% of inmates are long term unemployed;
> 60% of inmates did not complete year 10 schooling;
> 64% of inmates have no stable family;
> many inmates have had contact with the Department
of Community Services, with a high proportion of
those being state wards. 15
The Final Report went on to note that research by
Professor Tony Vinson found that in NSW most offenders
were drawn from the ‘top 30’ most disadvantaged
neighbourhoods which accounted for:
> four and a quarter times their share of child abuse;
> three and a quarter times their share of emergency
assistance;
> three times their share of court convictions and long
term unemployment;
> twice their share of low income households;
> a little under one and a half times their share of school
leavers before 15 years. 16
In terms of their health and socio-economic status
prisoners are disproportionately affected by drug and
alcohol problems, intellectual disability, illiteracy and
innumeracy, low educational attainment, unemployment,
having been the victim of child sexual assault, being
state wards, and having weak or no family ties.
Offences cOmmiTTed
In 2007 across Australia, the most common offences
(sentenced and unsentenced) were:
> acts intended to cause injury (various forms of assault)
(19%);
> sexual assault (11%);
> unlawful entry with intent (break and enter) (12%);
> homicide (10%);
> illicit drug offences (10%);
> robbery and extortion (9%).
In terms of the sentences prisoners were serving at the
time of the survey:
> 5% of all sentenced prisoners were serving a life
sentence or other indeterminate sentence;
> 21% were serving from 5-10 years;
> 23% were serving from 2-5 years;
> 34% were serving less than two years;
> the median expected time to serve was 1.8 years. 17
Note: This survey is of prisoners on one day so that
it is more likely to catch long term prisoners on more
serious offences. Examining total prisoners in Australian
prisons over the course of a year would find many more
short-term prisoners serving sentences for less serious
offences such as public order offences and drunkenness.
This would be even more the case if it included those
being held in police custody as distinct from prisons.
For receptions in NSW in 2001, 63% of receptions
(5011 of the total 8005 receptions) were of prisoners
serving less than six months imprisonment. 18
In 2000:
> 7.2% of sentenced prisoners received in that year were
serving sentences of two years and over; 19
> 10% were serving 1-2 years;
> 24.7% were serving 3-6 months;
> 19.8% were serving 6-12 months;
> 37.8% were serving less than 3 months.
The NSW Legislative Council Select Committee
concluded:
the prison population consists of men and
women who are on average of lower socioeconomic
status, poorer health and lower levels
of education than the rest of the population.
indigenous men and women and those with an
intellectual disability or a mental illness are
significantly over represented. the average
age of the inmate population is increasing.
although significant numbers of inmates have
been sentenced for serious offences and are
in maximum security classified institutions,
the majority of prisoners who pass through
the system serve sentences of less than six
months and are in minimum security or serving
periodic detention. almost a quarter of the prison
population are awaiting sentence. 20
15. NSW Legislative Council (see Note 10) at p 20.
16. As above, quoting Tony Vinson, Unequal in Life: The Distribution of Social Disadvantage in Victoria and NSW (1999) Jesuit Social Services:
Melbourne, available online at http://old.jss.org.au/research/pdfs/unequal_full_life.pdf
17. Australian Bureau of Statistics, Prisoners in Australia 2007, (2008) 4517.
18. NSW Legislative Council (see Note 10) at p 110.
19. NSW Legislative Council (see Note 10) at p 29.
20. NSW Legislative Council (see Note 10) at p 32.
4
HOT TOPICS 67 > Prisoners

cHAnging prisOn envirOnmenT
Prisoners in Australia in the 21st century play a far
more peripheral role in contemporary life than did the
early convicts. Public awareness was raised during the
1960s and 1970s after a series of major riots and protests
over brutality and poor conditions. The Bathurst riot
of 1974 led to the establishment of the Nagle Royal
Commission which issued a Report in 1978 which was
highly critical of the NSW prison system and led to a
period of penal reform. 21 Since then public attention
has waned despite significant increases in imprisonment
rates from the 1980s on, and increased cultural visibility
through popular films such as Chopper and prison based
television shows.
Since the Nagle Report, NSW Parliament set up a
Legislative Council Select Committee Inquiry into the
Increase in Prisoner Population which has issued two
reports:
> Interim Report on Inquiry into the Increase in Prisoner
Population: Issues Relating to Women 2000;
> Final Report of the Select Committee on the Increase
in Prisoner Population, 2001 (Parliamentary paper no.
924).
There have been some changes for the better, but also
some areas of major concern. Here is a snapshot of how
prisons have changed recently:
> there have been major increases in the prison
population as a rate, and of Indigenous and remand
populations in particular;
> sentencing changes include ‘truth in sentencing’, loss
of remission, and restrictions on bail all resulting in
longer sentences;
> drug use has had a huge impact as a factor in increases
in property crime, and on prison culture, security and
health issues;
> prisoner-on-prisoner violence, some engendered by
racial and ethnic streaming, seems more prevalent and
deaths in custody have increased;
> there is less official physical violence, systematic
bashings have stopped and animosities between
prisoners and prison officers have diminished;
> riots, major disturbances and escapes are down;
> physical conditions have improved;
> the prison officer’s role is being restructured in a
welfare direction through case management;
> there is a proliferation of programs oriented around
education and rehabilitation, although largely
unevaluated in their effects, uneven in their reach
and often subject to risk-based assessments and
classification decisions;
> there has been little change in time out of cells;
> a new ‘supermax’ section has concentrated a slightly
different group of prisoners as a replacement for
previous ‘intractable’ regimes based on sensory
deprivation (Katingal) and bashings (Grafton);
> the prison disciplinary system was legalised in the
Nagle era and then more recently changed to internal
administrative governance;
> limited privatisation (one prison) has taken place in
NSW (more extensive privatisation has occurred in
Victoria and Queensland) and some prison services
have been privatised;
> performance indicators on a range of criteria have
been introduced as a form of monitoring at a national
level (see box opposite for more detail) while at the
same time NSW prison watchdog agencies such as the
Ombudsman have increasingly been muzzled and the
Inspector-General’s position abolished in 2003. 22
recidivism And pOsT releAse
Reliable data on how many prisoners leave Australian
prisons every year is not available, but researchers
have guessed that ‘yearly flow numbers may be around
45-50,000. 23 This high rate (double the total numbers
of prisoners in Australian prisons on any given day) is
because the majority of prisoners are serving sentences of
less than 12 months.
Recidivism rates are difficult to measure and contentious,
varying according to the criteria used, for example
police arrest, conviction or return to custody. 24 All the
measures are to some extent underestimates as they do
not include undetected offences. The usual measure
of recidivism for corrective services is return to prison
within two years of release, but this will be affected by
sentencing practices, options and severity across different
states, and does not include non-custodial sentences.
A review of Australian recidivism research found:
> about two in every three prisoners will have been
previously imprisoned;
> about one in four prisoners will be reconvicted within
three months of being released from prison;
> between 35 and 41% of prisoners will be imprisoned
within two years of being released. 25
21. See Report of the Royal Commission into NSW Prisons (1978), J Nagle, Sydney: NSW Government Printer. For commentaries on the lead up,
conduct and aftermath of the Nagle inquiry see Findlay, M. (2001) The State of the Prison, Bathurst: Mitchellsearch; Vinson, T (1982) Wilful
Obstruction Methuen, Sydney; Zdenkowski, G. and Brown, D. (1982) The Prison Struggle, Melbourne: Penguin Books.
22. D Brown, ‘Continuity, rupture, or just more of the ‘volatile and contradictory’? Glimpses of New South Wales’ penal practice behind and
through the discursive’, in J Pratt et al, The New Punitiveness (2005) Willan: Devon 27-46 at 34-5.
23. Eileen Baldry, ‘Throughcare: Making the policy a reality’ powerpoint presentation, undated, http://www.sydneyshove.orga/throughcare_
policy.pdf accessed 24 February 2009.
24. See generally Jason Payne, Recidivism in Australia findings and future research, AIC No 80 (2007); available at www.aic.gov.au/publications/
rpp/80/rpp80.pdf
25. As above at p xi.
the prison population 5

NSW has the highest official recidivism rate at 43.5%,
against a national average of 38.4%. 26 The NSW
Government’s State Plan has set a target of a 10%
reduction in this figure by 2016. However, doubts
have been expressed that NSW Corrective Services will
achieve this goal unless significant resources are directed
to post release services. 27
Barriers to reintegration
Rates of reoffending appear to be highest in the three
month period immediately following release. In addition
to all the issues of mental illness, social disadvantage,
poor education, fractured employment histories, drug
and alcohol problems and general marginalisation, which
provide the backdrop to the offending and imprisonment
in the first place, there are also specific difficulties faced
by prisoners on release from prison, including:
> inadequate personal identification, such as driver’s
licences, Medicare cards, etc resulting in difficulties
and delays in accessing welfare benefits, health services,
establishing bank accounts etc;
> limited financial resources, compounded by limited
access to welfare benefits and accumulated debt from
justice sanctions;
> limited information about social, health and mental
health support services;
> a chronic lack of accommodation for released prisoners
and consequent high levels of homelessness;
> loss of personal belongings and resources while in
prison;
> institutionalisation and the decreasing ability to
live independently, excessive vigilance, aggression,
emotional over-control and a loss of self worth;
> the strengthening of criminal social networks. 28
A study of released prisoners in Victoria and NSW
found that these specific barriers are linked to wider
institutional policies and practices:
‘Reduction in poor communities of publicly
provided transport, affordable decent housing,
employment, health services – especially drug
and alcohol services, relevant education services,
and legal aid, leaves those, like ex-prisoners, who
cannot afford to participate in private market
solutions, without capacity to address these
exclusions.’ 29
Also, that a prisoner’s return to prison was significantly
associated with moving often, or moving in and out of
homelessness – from a parent’s house to the street to a
friend’s sofa to a homeless shelter.’ 30
prisOn perfOrmAnce indicATOrs
in 1995 the federal government started publishing an
annual Report on government services which includes
a section on corrective services. certain objectives
for corrective services and specific performance
indicators have been agreed across all jurisdictions.
performance indicators include:
> apparent unnatural deaths (prisoners);
> assaults in custody;
> out of cell hours;
> employment (prisoners);
> community work (offenders);
> education (prisoners);
> offence related programs;
> cost per prisoner/offender;
> escapes/absconds;
> completion of community orders.
as part of their agreed objectives, corrective services
aim:
‘to reduce the risk of re-offending among prisoners
and offenders by providing services and program
interventions that address the causes of offending,
maximise the chances of successful reintegration
into the community, and encourage offenders to
adopt a law-abiding way of life’.
Source: Report on Government Services 2008
throughcare
The major mechanism for addressing these issues has
been the policy of ‘Throughcare’ which has been taken
up in all Australian states. 31 Key aspects of this policy
are:
> assistance and support during the sentence;
> whole of sentence planning;
> integrated case management;
> partnerships between custodial and community
corrections staff so that services can follow released
prisoners into community settings. 32
Commentators who are sympathetic to the aims
of Throughcare point out a number of difficulties,
including:
> the chronic lack of services and programs available;
> bureaucratic and administrative requirements taking
precedence over service provision;
> rapidly increasing prison populations.
Also noted is a rising refusal of parole and an increased
tendency to breach parolees, as politicians demand
‘no-risk’ outcomes, undermining the therapeutic and
rehabilitative programs essential for Throughcare to
work. 33
26. See note 24, at p 61.
27. Malcolm Knox and Edmund Tadros, ‘Plan to arrest high rates of return’, Captive State: A Special Investigation, SMH Dec 8 2008 p 8.
28. See J Payne (note 24) at p 98.
29. E Baldry et al, ‘Ex-Prisoners, Homelessness and the State in Australia’, 39(1) The Australian and New Zealand Journal of Criminology (2006) 31.
30. As above at p 30. See also M. Borzycki (2005) Interventions for Prisoners Returning to the Community. A Report Prepared by the AIC for the
Community Safety and Justice Branch of the Australian Government Attorney-General’s Department, AG’s Dept, Canberra.
31. See NSW DCS (2002) Throughcare Strategic Framework 2002-2005, NSWDCS, Throughcare and E-Case Management Unit, Sydney.
32. See E Baldry (note 23) at pp 4-7.
33. As above at pp 7-17.
6
HOT TOPICS 67 > Prisoners

How Imprisonment
Rates Vary
AusTrAliAn sTATes And TerriTOries
The Australian imprisonment rate in 2007 was 169.4
per 100,000 but this obscures the significant state and
territory differences. The Northern Territory rate was
595.2, more than double that of the next highest state
which was Western Australia with 241.9. New South
Wales is next with 195.4, followed by Queensland 174,
South Australia 143.9, Tasmania, 140.6, Victoria 104.6
and the Australian Capital Territory 90.6. 34
Historically the high imprisoning states and territories
have been those with high Indigenous populations: the
NT and WA, followed by Qld, NSW and SA. These
figures are clearly not a function of population size for
the two territories, which have the smallest populations,
the NT and ACT have both the highest and lowest
imprisonment rates with the NT over six times that of
the ACT.
Change in Imprisonment Rates, between 30 June
1997 and 30 June 2007, states and territories
600
400
200
0
1997
2007
NSW(b) VIC QLD SA WA TAS NT ACT(c) AUST
(a) Rate per 100,000 adult population.
(b) Data for NSW exclude ACT prisoners held in NSW prisons.
(c) Data for ACT include prisoners held in NSW prisons.
Source: ABS Prisoners in Australia 2007 (2008).
An interesting contrast is that between NSW and
Victoria, two high population eastern seaboard states.
Since the 1980s Victoria has managed to maintain an
imprisonment rate around half that of NSW. Attempts
to explain this disparity have pointed to higher volumes
of criminal cases entering NSW courts, higher serious
offending rates, more punitive sentencing, the existence
of periodic detention and greater use of imprisonment
for fine default in NSW, but all these factors are partial
explanations only. 35 The crime rate in the NT is only
50% higher than Victoria and the same as NSW,
which suggests that when comparing crime rates to
imprisonment rates, a broader range of factors are
relevant. 36 In particular, local sentencing preferences
and policies may lead to a form of ‘discretionary
imprisonment’. 37
Explaining the difference in imprisonment rates between
NSW and Victoria, requires looking at the effects of
a whole range of social, political, legal and cultural
factors. Among these are:
> what kinds of behaviour the legislature and judiciary
define as criminal;
> the level of police funding and political and media
pressure for certain sorts of policing;
> how the police define their priorities and exercise their
considerable discretion;
> the availability of police diversionary schemes such as
warnings, cautions and conferencing;
> how prosecutors exercise their discretion not to
prosecute or to discontinue prosecutions;
> whether defendants are represented by lawyers;
> the range of sentencing alternatives available in
particular jurisdictions and the sentencing practices
and traditions among magistrates and judges in
different jurisdictions;
34. Australian Bureau of Statistics, Prisoners in Australia 2007, (2008) 4517 at p 18.
35. See, P Gallagher, ‘Why does NSW have a higher imprisonment rate than Victoria?’ Crime and Justice Bulletin No 23 May 1995
NSWBOCSAR: Sydney.
36. A Freiberg and S Ross, Sentencing Reform and Penal Change (1999) 61.
37. J Walker, ‘Keeping People Out of Prison – Which Jurisdictions Do It Best?’ in S McKillop (ed) Keeping People out of Prison (1991) AIC:
Canberra; available at www.aic.gov.au/publications/proceedings/11/walker.html
how imprisonment Rates Vary 7

the level of provision of rehabilitative programs,
literacy, education, work skills, psychological,
psychiatric, drug and alcohol programs in the prison
context;
> the provision of remissions and parole;
> the level of provision of post-release services such
as housing, education, employment and training
assistance, drug and alcohol and other programs;
> the portrayal of crime problems in the media;
> the degree to which criminal justice issues have
become politicised and the subject of ‘law and order
‘auctions’ between political parties, especially in the
lead up to elections; 38
> public attitudes and sensibilities towards crime,
offenders and rehabilitation.
HigH indigenOus imprisOnmenT
rATes
The marked over-representation of Indigenous
Australians is one of the distinguishing features of
Australian imprisonment. On 30 June 2007 Indigenous
prisoners made up 24% or one in four of all Australian
prisoners. Nationally, Indigenous persons were 13 times
more likely to be in prison than non-Indigenous persons
and in WA, 21 times more likely.
The national imprisonment rate per 100 000
Indigenous adults in 2006-07 was 2142.2 compared
with a rate of 122.4 for non-Indigenous prisoners
Prisoners/100 000 adults
4 000
3 500
Indigenous prisoners
3 000
Non-Indigenous prisoners
2 500
2 000
1 500
1 000
500
0
NSW VIC QLD WA SA TAS ACT NT AUST
Source: Report on Government Services 2008.
© Commonwealth of Australia.
The disproportion is also steadily increasing. Indigenous
prisoners comprised around 5% of the New South Wales
(NSW) prison population in the early 1980s, but four
times that proportion (20%) by 2007. 39 Nationally
the proportion of Indigenous prisoners increased from
18% in 1996 to 24.4% in 2006. 40 With a national
Indigenous imprisonment rate of 2142.2 per 100,000
Indigenous adults in 2006-07 compared with 122.4 for
non-Indigenous prisoners the question arises whether
the imprisonment of Indigenous people in Australia
has taken on the characteristics of ‘mass imprisonment’
(as discussed in relation to the US on p 9). The
‘normalisation’ of the prison for Indigenous communities
can be seen in the fact that 20% of Indigenous children
in Australia have a parent or carer in prison, raising the
prospect of increasing inter-generational transmission of
prison culture and experience. 41
The higher incarceration rates of jurisdictions like the
Northern Territory and Western Australia may be due
to having more punitive ‘frontier’ cultures in which
disputes over colonial dispossession of Indigenous people
are both more visible and continuing. 42 Also, high
Indigenous incarceration rates in the last quarter of the
20th century coincide with the end of predominantly
administrative forms of segregation and control through
the mission system, the granting of citizenship and entry
into the labour market. 43
The following quote makes a similar point about the
climb in Indigenous incarceration rates and the issue of
deaths in custody:
By removing the majority of indigenous people
from the spheres of everyday life and establishing
a separate criminal justice apparatus to regulate
their lives in isolation, the reserve system
actually postponed the inevitable passage of
large numbers of the dispossessed victims
of colonisation into the state penal systems
… Moreover, the incapacitating effects of the
reserve system itself – its destruction of cultural
traditions and independence, and the erosion of
health and wellbeing – without doubt exacerbated
the post protection process of incarceration. 44
Child ‘separation’ policies (more commonly known as
the ‘stolen generation’) as revealed in the Australian
Human Rights and Equal Opportunity Commission
(HREOC) report, Bringing them home: Report of the
National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from Their Families (1997)
also had clearly criminogenic (crime producing) effects.
Removal from the family and institutionalisation
in juvenile homes cut Indigenous children off from
the protection and influence of their families and
communities and socialised them into the often brutal
regimes of institutional life. This process generated
institutional careers, juvenile homes proving to be
training grounds for prison.
38. See R Hogg and D Brown, Rethinking Law and Order (1998) Pluto Press: Sydney.
39. ABS Prisoners in Australia 2007 (2008) 40.
40. As above, at p 43.
41. M Levy, Presentation to National Criminal Justice Forum, Canberra, September 29 2008.
42. As suggested by R Broadhurst, in Aborigines and Crime in Australia’ (1997) in M Tonry (ed) Ethnicity, crime and immigration: Comparative
and cross-national perspectives on crime and justice –a review of research, Volume 21 Chicago, Univ of Chicago Press 453-64.
43. R Hogg, ‘Regulating Indigenous Peoples in Australia’ (2001) Punishment and Society 3(3) 355-379.
44. M Finnane and J McGuire, ‘The uses of punishment and exile: Aborigines in colonial Australia’ (2001) Punishment and Society 3(2) 279-298
at 294.
8
HOT TOPICS 67 > Prisoners

The removals and the attempt to expunge Aboriginality
which went with them generated a profound loss of
personal identity and security, despair and alienation,
manifest in heavy drinking and other damaging (to self
and others) behaviours, offending and criminalisation.
Recent research has demonstrated the significant
association between removal of Indigenous children and
adverse long term social and mental health effects.
In a study based on interviews with Indigenous prisoners
in NSW prisons, prisoners who had been removed from
their parents were:
> twice as likely as Indigenous prisoners who were not
so removed to have been imprisoned on more than five
previous occasions (35.8% compared to 17.1%);
> nearly three times as likely to have been victims of
sexual assault (30.9% compared to 11.5%);
> and nearly twice as likely to have attempted suicide in
the past (38.2% compared to 20.8%). 45
In short, even among a highly economically, socially
and culturally disadvantaged group, significantly higher
levels of adverse outcomes had been experienced by
Indigenous people who had been removed from their
parents as children.
inTernATiOnAl imprisOnmenT rATes
The significant variation in imprisonment rates seen
across the Australian states and territories is even greater
when we look at the international picture. The following
table shows the huge variations across a selected group
of countries. 46
ImPrISoNmeNt rate
(per 100 000 population)
united states . . . . . . . . . . . . . . . . . . . . . . . 762
Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635
south africa . . . . . . . . . . . . . . . . . . . . . . . . 342
new Zealand . . . . . . . . . . . . . . . . . . . . . . . 178
united Kingdom . . . . . . . . . . . . . . . . . . . . . 154
australia . . . . . . . . . . . . . . . . . . . . . . . . . . 130
china . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
canada . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
germany . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
indonesia . . . . . . . . . . . . . . . . . . . . . . . . . . 52
india . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Source: Compiled from the larger table provided at the Kings
College London, International Centre for Prison Studies, World
Prison Brief site, http://www.kcl.ac.uk/depsta/law/research/icps/
worldbrief/wpb_stats.php
uniTed sTATes prisOn pOpulATiOn
image unavailable
Prisoners in the exercise yard at the Metropolitan
Remand and Reception Centre of Silverwater gaol,
Sydney, 2000.
Andrew Taylor, SMH.
The US has an imprisonment rate nearly six times
that of Australia and 12 times that of Japan.
As one US journalist put it:
the us has less than 5% of the world’s
population. But it has almost a quarter of the
world’s prisoners. indeed, the united states
leads the world in producing prisoners, a
reflection of a relatively recent and now entirely
distinctive american approach to crime and
punishment. americans are locked up for their
crimes – from writing bad checks to using drugs
– that would rarely produce prison sentences in
other countries. and in particular they are kept
incarcerated far longer than prisoners in other
nations. 47
45. S. Egger and T. Butler, ‘The Long-term factors associate with removal from parents amongst Indigenous Prisoners in NSW’ (2000) 24(4)
Public Health Journal 454.
46. Go to http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php for the full table including 216 countries ranked from highest
(US at 762 per 100,000 population) to lowest (Liechtenstein at 20).
47. Adam Liptak, ‘American Exception Inmate Count in US Dwarfs Other Nations’, NY Times April 23 (2008).
how imprisonment Rates Vary 9

On 30 June 2007, 2.3 million prisoners were held in
US federal or state prisons or in local jails. 48 In 2004,
nearly 7 million people were on probation, in jail or
prison, or on parole – 3.2% of all US adult residents or
one in every 31 adults. 49 As with the over-representation
of Aborigines in Australia (discussed previously) there is
a striking racial imbalance in the US prison population.
Black males are imprisoned at six times and Hispanic
males nearly three times the rate of white males. In the
25-29 years age group, 8.4% of black males were in State
or federal prison, compared with 2.5% of Hispanic males
and 1.2% of white. 50 The Sentencing Project calculated
that one in nine African-American males aged 20-29 are
in prison at any one point in time and one in three are
either in prison or on probation or parole.
Mass imprisonment?
Such statistics have resulted in leading criminologists
analysing the US situation as one of ‘mass imprisonment’,
defined as when imprisonment ‘is markedly above the
historical and comparative norm for societies of this
type’ and ‘ceases to be the incarceration of individual
offenders and becomes the systematic imprisonment
of whole groups of the population’. 51 In this situation
imprisonment:
becomes part of the socialisation process. every
family, every household, every individual in these
neighbourhoods has direct personal knowledge of
the prison – through a spouse, a child, a parent,
a neighbour, a friend. imprisonment ceases to be
the fate of a few criminal individuals and becomes
a shaping institution for whole sectors of the
population.
The social and financial costs of mass imprisonment
are acute:
Reduced state budgets for other spending; the
alienation of whole sectors of the population; the
normalisation of the prison experience and the
transfer of prison culture into the community;
the criminogenic* consequences of custody for
inmates and their families and their children; and
the disenfranchisement of whole sectors of the
community.
*Criminogenic = crime-producing
From 1925 to 1975 the US imprisonment rate was around
110 per 100,000 population, increasing suddenly with
the ‘war on drugs’, ‘three strikes’ laws and mandatory
minimum sentences. 52 Between 1970 and 2005 there
was a 628% increase in the US prison population. 53
scAndinAviAn cOunTries
The Scandinavian countries of northern Europe: Sweden,
Norway, Denmark and Finland are a group of countries
which historically have enjoyed low imprisonment rates.
According to a study by John Pratt, the origins of low
imprisonment rates and exceptional prison conditions
can be found in cultures with a history of equality. The
welfare state was particularly strong in the Scandinavian
countries, institutionalising high levels of trust and
solidarity through the provision of state-guaranteed
security. Pratt identifies the following characteristics of
low imprisoning countries:
> strong state bureaucracies with significant autonomy
and independence from political interference;
> mass media largely controlled by public neo-corporate
organisations rather than market forces … providing
its already well informed public with objective rather
than sensationalised crime knowledge;
> traditions of social welfarism which reduced
criminogenic tendencies and led to a less severe
punishment mentality;
> high levels of social capital;
> and the power and influence of expertise. 54
Pratt sees these characteristics as coming under threat
through welfare restructuring, immigration, declining
levels of security and solidarity, and the ‘growth of
intolerance and punitiveness against outsider groups’. 55
Nevertheless such comparisons ‘tell us that there are
other choices available to us in how to respond to crime
and how to manage prisons’. 56
48. US Department of Justice, Bureau of Justice Statistics, Prison Statistics, http://www.ojp.usdoj.gov/bjs/prisons.htm accessed 18/9/2008.
49. US Bureau of Justice Statistics, Bulletin October 2005 1-2.
50. J Walker (see Note 37).
51. David Garland, ‘The meaning of mass imprisonment’, (2001) 3(1) Punishment and Society 5-6.
52. Christopher Shea, ‘Life Sentence: How Prison is Reshaping the USA’ (2007) The Boston Globe 24 September.
53. D Steman, Vera Institute of Justice, New York, Reconsidering Incarceration (2007) 1; available at http://www.vera.org/publication_
pdf/379_727.pdf
54. As above at p 135.
55. John Pratt, ‘Scandinavian Exceptionalism in an Era of Penal Excess’, Part 11: Does Scandinavian Exceptionalism Have A Future?’ British
Journal of Criminology (2008) 48, 275-292 at 288.
56. As above at p 290.
10
HOT TOPICS 67 > Prisoners

Prisoners’
Legal Issues
prisoners face a range of legal issues including
most obviously criminal justice issues associated
with their principal offence, but also including
a wide range of debt, civil law and family law
matters. a recent survey by the Law and Justice
Foundation of nsW, taking Justice into Custody
(2008) 57 identified the following issues.
criminAl jusTice issues
There may be a range of issues connected with their
principal offence; obtaining bail, meeting bail conditions,
facing internal disciplinary charges; apprehended violence
orders; warrants for other offences which may need to be
‘called in’ (executed); warrants for the collection of DNA
samples; eligibility for parole; breaching parole; being
subject to police attention after release.
civil issues
There is a broad range of issues to do with business
and employment; housing, obtaining public housing or
privately rented housing; caring for personal property
which remains outside the jail; obtaining personal
identification in order to obtain access to housing,
Medicare, receive social security benefits, open bank
accounts etc; protecting property taken into custody;
social security problems on entry into prison and on
release from prison; pre existing debts and debts which
accrue in prison (eg unpaid rent; child support agency
payments); liability for victims compensation payments;
payment of fines; injury and illness in prison; injury
arising from assault in prison; media issues; immigration
issues and potential deportation.
fAmily issues
Legal issues including: separation; divorce; substitute
care for children; custody issues and housing.
legAl services
The first point of legal contact for most people arrested
is with a Court Duty Solicitor, Legal Aid lawyer or, if
Aboriginal or Torres Strait Islander, a member of the
Aboriginal Legal Service (ALS), when they appear in
court for the first time. Some people in custody may
have been permitted to contact a private lawyer to attend
the police station or court. The police are required to
contact the ALS if the person in custody is an Aboriginal
or Torres Strait Islander person. If remanded in custody
to a prison, inmates can make an application through
the Prisoners Legal Service (PLS) or Legal Aid for a
solicitor to represent them if they are entitled to legal
aid. The Inmate Handbook contains contact details for
Legal Aid and ALS, some library facilities are available
such as legal resources from the State Library’s Legal
Information Access Centre (LIAC) and phone calls can
be made to LawAccess, a free statewide telephone service
which provides legal information, advice and referrals.
The Prisoners Legal Service also provides advice and
representation in relation to Parole hearings, life sentence
determinations, segregation appeals, and visiting justice
hearings (although there are few of the latter as most
internal disciplinary offences are now dealt with by the
Superintendent of the prison).
BArriers TO jusTice
The Law and Justice Foundation Report, Taking Justice
into Custody (2008) identified a number of ‘barriers’ to
inmates’ access to justice. These barriers were of four
types.
1. Prisoner capacity to actively participate in legal
processes is affected by their lives before prison
which may have been chaotic; involved damaged
and damaging personal relationships; involved poor
relationships with governmental agencies and service
providers; shown a lack of awareness of the extent
of legal issues facing them; involved a reliance on
informal relationships; and been affected by limited
financial capacity and resources. In addition some
prisoners manifest problems of cognitive capacity,
literacy and comprehension; their interpersonal skills
may be affected by depression and despondency,
passivity and withdrawal, and aggressive behaviour.
The impact of all of these characteristics on access to
justice may be exacerbated in a custodial setting (see
Report: Chapter 6).
57. A Grunseit, S Forell, and E McCarron, Law and Justice Foundation of NSW, Access to Justice and Legal Needs Volume 5 Taking Justice into
custody The Legal Needs of Prisoners July 2008 chapter 4. Full report available at http://www.lawfoundation.net.au/report/prisoners
prisoners’ Legal issues 11

2. The Systemic Environment. A range of factors
to do with the overall environment can ‘disrupt
or impede the ability of inmates to address their
legal needs’. These include: insufficient Legal Aid
and PLS lawyers to meet the demands for services,
especially in rural areas; custodial staff shortages; the
frequency of lockdowns; reallocation of DCS staff;
a shortage of welfare officers; no internet access (for
security reasons); insufficient access to telephones;
lack of access to courses (which may affect eligibility
for parole); constant transfers of prisoners to other
institutions; and the stress associated with transit
to and from court (although this is being partly
addressed by expanded audio visual links (AVL) (see
Report: Chapter 7).
3. Pathways and Intermediaries. ‘In the absence of an
ability to act directly, inmates rely to a high degree
on other people either to act on their behalf or to be
a relay point in the process of preventing, identifying
or addressing a legal problem.’ The intermediaries
include custodial officers, welfare officers, library/
education staff, inmate peers, and friends and
family. Difficulties arise in identifying appropriate
intermediaries and pathways to legal assistance;
the fact that assistance was seen as a discretionary
matter; delays; the development of a relationship of
dependence; and variable quality in the information,
advice and assistance provided by intermediaries (see
Report: Chapter 8).
4. Prison Culture can affect prisoners’ capacity and
willingness to access justice. For example where an
‘Us versus Them’ inmate code, sometimes referred
to as ‘green’ (inmates’ uniform) v ‘blue’ (officers’
uniform) is in force, reporting to prison authorities
matters such as assault or sexual assault can be
hazardous and lead to being stigmatised as a ‘dog’ or
informer. This can cast suspicion over any approach
to prison officers for assistance including with legal
issues. Another aspect of culture is the acceptance of
violence as integral to prison life and as a solution
to conflict. The normalisation of violence leads
to significant under reporting, trivialisation and
‘rationalises a lack of resort to formal processes of
legal redress’. Forms of inmate subjectivity, notions
of being seen as ‘undeserving’, ‘criminal’ or ‘guilty’
can operate to ‘validate prejudicial treatment’ and
‘de-motivate the inmate to act on future legal
issues’. Finally the formal culture of the prison
encourages compliance and passivity in inmates
which undermines the persistence, independence
and skills required to face up to and resolve legal
issues.
prisOners And THe mediA
Media treatment of prisons tends to fluctuate between
sensationalist exploitation of public fears and fascination
with notorious prisoners and their crimes, reformist
critiques of prison conditions, and largely ignoring
image unavailable
Razor wire fence at Fremantle prison, WA.
Roel Loopers.
12
HOT TOPICS 67 > Prisoners

prison issues. Prison administrators and Ministers of
Corrections departments are often judged as successful
if prisons are kept off the front page of the tabloids.
Among the key conditions helping to keep prisons and
prisoners out of the media are increased emphasis and
resources devoted to security, the prevention of escapes
and a tight policy of internal administrative control of
media access to prisoners and prisons.
The ‘principle of lesser eligibility’, that prison conditions
must always be kept below those of the honest poor was
first expressed by Jeremy Bentham in 1780. 58 This has
an echo in media accounts of prisoners enjoying ‘motel
conditions’ and particular notorious prisoners having
access to electric hot water jugs and televisions.
Securing greater media access by and to prisoners for
all forms of media, especially the ‘new media’, enables
prisoners to speak for themselves and most importantly
to ‘personalise and humanise issues’. 59 Central to this are
the media produced by prisoners and prison movement
organisations such as Justice Action, which in 2005
initiated a court action seeking to require the NSW
Department of Corrective Services to distribute an
election issue of their newspaper Framed on the grounds
that its prohibition was an illegitimate infringement of
the implied constitutional right of freedom of political
communication and participation. 60
prisOners As legAl suBjecTs
Such legal actions seeking to utilise the forums of the law
and the judicial process, highlight the limited protections
for prisoners available in law in the Australian context,
in the absence of any express constitutional or statutory
rights of the sort enacted in comparable jurisdictions in
constitutional (US, Canada, South Africa) or statutory
form (UK, NZ). The clearest expression of what has
been called the ‘hands off’ doctrine is the judgment of
Dixon CJ in Flynn’s 61 case in 1949 that the courts should
be wary of recognising prisoners as legal subjects because
to do so would shift management of the prison from
prison administrators to the courts, in the process
undermining prison authorities and opening the
floodgates. This has been described in an article by
Richard Edney, as having the ‘disturbing implication’
that an important area of social concern is ‘beyond the
jurisdiction of the law’. 62
The ‘prisoners as outlaws’ approach was undermined
by the findings of inquiries such as Nagle in NSW
(1978) and Jenkinson in Victoria (1973) after riots and
disturbances at Bathurst and Pentridge and many other
prisons in Australia, the USA, UK and Europe, giving
rise to a qualified legal ‘retrieval’ of prisoners rights
in the 1960s and 1970s, a judicial move to conceive
of prisoners as legal subjects given their ‘unique and
vulnerable position.’ 63 Edney argues that this judicial
scrutiny was always limited so that ‘decisions dealing
with the transfer of prisoners between and within a
prison, segregation of prisoners, and other aspects of
prison administration concerning matters such as the
provision of condoms and syringes and the general
concern of the good order and security of the prison’
remained largely beyond the reach of judicial review and
that a new form of ‘hands off by stealth’ was achieved
by the courts giving deference to the judgment and
expertise of prison administrators.
Even where applications for judicial review are
successful victories can be shortlived, as they are often
countermanded by prison administrators or legislators.
In Middleton, 64 the NSW Supreme Court in 2004
held that the decision of the NSW Corrective Services’
Commissioner to refuse a prisoner access to a laptop
computer in order to complete a University degree
course was an ‘abrogation of the proper exercise of
the discretion’ and should be re-determined. The
Commissioner’s ‘re-determination’ was to again refuse
access, followed by a blanket ban on access to laptop
computers by all prisoners regardless of security
classification.
In an article examining judicial decisions on the
interpretation of correctional legislation, the author
concludes that they have not: ‘yielded principles by
which the decisions of prison officials may be subjected
to rigorous scrutiny by the courts in applications for
judicial review. Legislative attempts to grant rights
to prisoners have also provided few clear benefits to
prisoners’. 65 The limited jurisdiction of HREOC
‘prevents that body from operating as an effective
grievance mechanism for prisoners’ and the effects
of international instruments such as the ICCPR have
been slight, and judicial attitudes present a ‘significant
obstacle’, for Australian courts have proved ‘extremely
reluctant to draw on international instruments in the
interpretation of correctional legislation. 66
58. The Principles of Morals and Legislation, J Bentham – text available online from http://oll.libertyfund.org search ‘Bentham’.
59. C Lumby, ‘Televising the Invisible: Prisoners, Prison Reform and the Media’ in D Brown and M Wilkie (eds) Prisoners as Citizens (2002) 105.
60. See AHRC, No 32 Report of an inquiry into a complaint made on behalf of federal prisoners detained in NSW correctional centres that their
human rights have been breached by the decision to ban distribution of the magazine ‘Framed’ (2006). See http://www.humanrights.gov.au/
legal/HREOCA_reports/index.html
61. Flynn v The King (1949) 79 CLR 1; available at www.austlii.edu.au/au/cases/cth/HCA/1949/38.html
62. R Edney, (2001) ‘Judicial deference to the expertise of correctional administrators: The implications for prisoners’ rights’ Australian Journal of
Human Rights 5, 1-35 at 8; available at http://www.austlii.edu.au/au/journals/AJHR/2001/5.html
63. As above, at p 10.
64. Middleton v Commissioner of Corrective Services of NSW [2004] NSWSC 136; see www.austlii.edu.au/au/cases/nsw/NSWSC/2003/136.html
65. ‘International Law and Australian Prisoners’ by Matthew Groves (2001) UNSWLJ 11 at 20; available at http://www.austlii.edu.au/au/journals/
UNSWLJ/2001/11.html
66. As above at p 21.
prisoners’ Legal issues 13

International
Human Rights Law
applicable to Prisoners
the two international treaties of most relevance
to prisons and prisoners are the international
convention on civil and political Rights (iccpR)
and the united nations convention against
torture and other cruel, inhuman or Degrading
treatment or punishment (uncat).
The International Covenant on Civil and Political Rights
(ICCPR) was opened for signature in 1966 and entered
into force in 1976. It was ratified by the Australian
government on 13 November 1980. Australia also
ratified the Optional Protocol of the ICCPR which
establishes the enforcement mechanisms for the ICCPR,
the international monitoring body being the Human
Rights Committee. Express recognition of parts of
the ICCPR are found in several Australian statutes. 67
Australia has signed the UNCAT and has accepted
individual complaint procedures under both the ICCPR
and UNCAT so that individual prisoners can bring
complaints to the Human Rights Committee and the
Committee Against Torture if they have exhausted all
domestic remedies. The Rudd Federal Government has
image unavailable
indicated an intention to ratify the Optional Protocol to
UNCAT (OPCAT).
There are several difficulties in attempting to successfully
apply international standards in Australian domestic law
in the absence of a Bill of Rights:
> International treaties ratified by the Australian
government have no direct effect in Australian law
unless expressly adopted by Australian domestic
legislation;
> Where international treaties have merely been
ratified and not incorporated in domestic legislation
then the current position is that such ratified treaty
provisions may be of assistance to domestic courts in
the interpretation of legislation or the common law
where there is ambiguity or uncertainly. This is known
as the ‘interpretive principle’. So that international
standards are not easily raised in specific cases because
of the difficulty of showing common law or statutory
ambiguity;
> Individual complaints against Australia may not be
brought before one of the UN human rights treaty
bodies with individual communications procedures
unless Australia has accepted the competence of
the committee in question to entertain individual
complaints;
> All domestic remedies must have been exhausted
before such a complaint can be made;
> A UN Committee ruling is essentially advisory only
and may have little effect save moral embarrassment in
view of the lack of enforcement mechanisms and lack
of interest on the part of governments;
> Even where an individual is successful a remedy is not
guaranteed.
An inmate reading in his cell, Canning Vale, WA,
February 2000.
Andy Tyndall, © Newspix/News Ltd.
67. The Human Rights and Equal Opportunity Commission Act 1986 (Cth) Sch 2, the Disability Discrimination Act 1992 (Cth), the Human Rights
(Sexual Conduct) Act 1994 (Cth) and the Privacy Act 1988 (Cth) – Art 17.
14
HOT TOPICS 67 > Prisoners

iccpr
The main rights of relevance to prisoners contained in
the ICCPR are:
article 6
1. Every human being has the inherent right to life.
This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
article 7
No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular,
no one shall be subjected without his free consent to
medical or scientific experimentation.
article 9(1)
1. Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such
procedures as are established by law.
2. Anyone who is arrested shall be informed, at the
time of arrest, of the reasons for his arrest and shall
be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge
shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power
and shall be entitled to trial within a reasonable time
or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody,
but release may be subject to guarantees to appear for
trial, at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the
judgment.
4. Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before
a court, in order that that court may decide without
delay on the lawfulness of his detention and order his
release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest
or detention shall have an enforceable right to
compensation.
Note that the ICCPR also contains a number of articles
of relevance to remand prisoners in particular as they
cover the right to a fair trial and due process rights
(eg Articles 14, 15, 17 and 26).
A leading commentator has suggested that ‘the state may
be considered to have a special duty towards persons
deprived of their liberty, such that failure to provide
them with food or medical treatment, or to prevent
suicide, may amount to a violation of article 6.’ 68
Similarly an issue under article 6 might be raised if ‘a
prisoner is killed by another prisoner in circumstances
indicating that officials were aware of the existence of a
risk and in a position to prevent the killing yet failed to
do so’. 69
sTAndArd minimum rules
The key provision for prisoners is article 10 of the ICCPR
and the Standard Minimum Rules for the Treatment of
Prisoners (SMRs). 70 Whereas article 10 is general, the
SMRs are detailed but they are not formally binding on
states, although they are used to determine the scope of
article 10. Gifford in a review of decisions by the United
Nations Human Rights Committee in relation to article
10 notes the following factors which have ‘consistently
contributed to a finding of violation’ including:
> overcrowding and solitary confinement;
> restrictions on contact with relatives or legal
representatives;
> inadequate opportunities to leave the cell, failure to
provide a mattress, inadequate sanitation, inadequate
ventilation, absence of natural light, inadequate food
and water, and lack of medical assistance or denial of
medical treatment. 71
The principles in the SMRs have been adopted in
Australia in the Standard Guidelines for Corrections in
Australia. Although not binding on Australian States
and Territories the Guidelines are to be used in drafting
prison rules. The following table sets out the principles
of general application elaborated upon by the SMRs.
article 10
1. All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent
dignity of the human person …
3. The penitentiary system shall comprise treatment
of prisoners the essential aim of which shall be their
reformation and social rehabilitation.
68. Camille Giffard, ‘International Human Rights Law Applicable to Prisoners’ in Brown and Wilkie (eds) Prisoners as Citizens (2002) 184.
69. Giffard, as above.
70. Available in fulltext from the UNHCHR website: www.unhchr.ch/html/menu3/b/h_comp34.htm.
71. Giffard, as above 190.
international human Rights Law applicable to prisoners 15

generAl principles deTAiled in THe sTAndArd minimum rules
A register of prisoners must be kept in all places of detention, containing a number of required pieces of
information.
SMR 7
Different categories of prisoner should be kept separate. SMR 8
Accommodation must comply with certain conditions, in particular with regard to size, number of occupants,
lighting, ventilation and sanitation.
SMRs 9-14
Facilities should be provided for personal hygiene. SMRs 15-16
Clothing and bedding must be provided to a specific standard. SMRs 17-19
Food and water of adequate quality must be provided. SMR 20
Opportunities for exercise must be provided. SMR 21
Various medical services must be made available on a regular basis, including outside the institution if
necessary.
Methods and procedures for discipline and punishment are strictly regulated, including through the absolute
prohibition of certain forms of punishment.
SMRs 22-26
SMRs 27-32
Instruments of restraint may only be used in very limited circumstances and never as a punishment. SMRs 33-34
Prisoners must be informed of the rules of the institution and given an opportunity to make complaint. SMRs 35-36
Contacts with the outside world are to be allowed in certain forms, including through communication with
family and friends.
SMRs 35-36
Access to books should be permitted. SMR 40
Prisoners should be allowed to practice their religious beliefs as far as practical. SMR 41-42
Prisoner’s property must be dealt with in accordance with specific rules. SMR 43
Notification of death, illness or transfer must be passed on to relatives or the prisoner as appropriate. SMR 44
The removal of prisoners must respect certain conditions. SMR 45
Detailed rules exist as to the selection and functions of institutional personnel. SMRs 46-54
Regular inspections of the institution should be carried out by an appropriate authority. SMR 55
Source: Camille Giffard, ‘International Human Rights Law Applicable to Prisoners’ in Brown and Wilkie (eds) Prisoners as Citizens (2002) 192
uncAT And OpcAT
Also of relevance to prisoners is the United Nations
Convention Against Torture (UNCAT). Article 1 of
UNCAT defines torture as:
any act by which severe pain or suffering,
whether physical or mental, is intentionally
inflicted on a person for such purposes as
obtaining from him or a third person information
or a confession, punishing him for an act he or
a third person has committed or is suspected of
having committed, or intimidating or coercing
him or a third person, or for any reason based
on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a
public official or other person acting in an official
capacity. it does not include pain or suffering
arising only from, inherent in or incidental to
lawful sanctions.
Particular forms of treatment of prisoners that may
come within this definition include prolonged solitary
confinement, corporal punishment, and the use of
instruments of physical restraint which may cause
unnecessary pain and humiliation.
However Article 16(1) of UNCAT extends the definition
to any form of degrading treatment by placing an
obligation on each State Party to:
‘undertake to prevent in any territory under
its jurisdiction other acts of cruel, inhuman or
degrading treatment or punishment which do not
amount to torture as defined in article 1, when
such acts are committed by or at the instigation
of or with the consent or acquiescence of a
public official or other person acting in an official
capacity.’
16
HOT TOPICS 67 > Prisoners

Article 11 requires every State Party to:
‘Keep under systematic review interrogation
rules, instructions, methods and practices as well
as arrangements for the custody and treatment
of persons subject to any form of arrest,
detention or imprisonment in any territory under
its jurisdiction, with a view to preventing [such
treatment or punishment].’
proposed ratification of opcat
The proposed ratification by the Rudd ALP Government
of the Optional Protocol to the Convention against Torture
and other Cruel, Inhuman of Degrading Treatment or
Punishment (OPCAT) requires State Parties to ‘set up,
designate or maintain at the domestic level one or several
visiting bodies for the prevention of torture and other
cruel, inhuman or degrading treatment or punishment –
national preventive mechanisms (NPMs)’. 72
In December 2008 the Australian Human Rights
Commission (AHRC) released Implementing the
Optional Protocol to the Convention against Torture:
Options for Australia, a report to the Australian Human
Rights Commission. 73 This Report argues that the
national coordinating NPM must play a ‘proactive,
visits-based role, ... be truly independent’ and be based
on an existing agency. 74 The Report identifies the
AHRC as the appropriate agency but notes that it must
be properly funded. As the Report puts it: ‘the evidence
is clear that fully accountable detention processes work
for the ultimate benefit of the detaining authorities, the
persons who work in places of detention and, above all,
for detainees themselves’. 75
The recommendations of the AHRC Report and the
requirement for an NPM are currently the subject of
consultation between the Commonwealth and State and
Territory governments. In NSW, the ALP government
abolished the position of Inspector General of Prisons in
2003 and has since refused to extend the Ombudsman
powers. A NSW Ombudsman official dealing with
prisons has confirmed that ‘the Ombudsman does not
have the power to conduct unannounced visits into
prisons and only has the resources to visit some prisons
every two years.’ 76 In addition the role of Official
Visitors has been cut back so they cannot initiate their
own inquiries and a number of the more independent
Official.
image unavailable
Correctional officers in the exercise yard of the high-risk management unit (HRMU) at Goulburn Correctional Centre
NSW, 2001.
Narelle Autio, SMH.
72. Committee Against Torture (CAT), First Annual Report of the Subcommittee on Prevention of Torture 29 April-16 May 2008 para 6.
73.

cAse sTudy
scott simpson, an inmate who was clearly
mentally ill, was held in segregation on remand
at the hRMu for almost 12 months, given
anti-psychotic medication but no therapeutic
treatment. When later he was placed in a cell at
the MRRc he killed a cell mate within 15 minutes.
two years later he was found not guilty of murder
on the grounds of mental illness. two weeks
after the verdict he hanged himself in a cell at
Long Bay. the report of the coroner is available
at http://www.agd.nsw.gov.au/lawlink/coroners_
court/ll_coroners.nsf/vwFiles/simpsoninquest.
doc/$file/simpsoninquest.doc
see also www.humanrights.gov.au/legal/
submissions_court/intervention/simpson.html
‘supermAx’
Supermax is an American term which has recently
gained currency in Australia. In the US something like
25 000 prisoners are in designated supermax facilities,
whereas their take up in Europe has been minimal.
Australia still has relatively small numbers of prisoners
in designated ‘supermax’ facilities such as Goulburn
High Risk Management Unit (HRMU) in NSW and
Barwon in Victoria.
The extent to which ‘supermax’ is presented as something
completely new is highly misleading, as it obscures the
long history of ‘secondary punishment’, ‘intractable’,
‘punishment’ and ‘segregation’ sections and conditions
in Australian prisons from the penal colonies on. The
emergence of ‘supermax’ must be put in the context of
the particular Australian history of punishment sections,
of the ‘prison within the prison’, from places like
Port Arthur, Morton Bay, Norfolk Island, through to
Grafton, Katingal, Pentridge, Jika Jika, and Goulburn
HRMU.
An insight into ‘supermax’ practices and into the potential
for the ratification of OPCAT to lead to monitoring of
conditions in Australia’s ‘supermax’ prisons is provided
by the NSW Council for Civil Liberties in its Shadow
Report prepared for the UN Committee against Torture,
27 July 2007 and the Concluding Observations of the
Committee Against Torture in Relation to Australia,
15 May 2008. The Shadow Report recommended that
‘the State party (Australia) invite the Special Rapporteur
on Torture to visit the ‘supermax’ prison within a
prison (HRMU) at the Goulburn Correctional Centre’.
In an Addendum to the Shadow Report the Council for
Civil Liberties later considered the HRMU in greater
detail 77 and after setting out a brief history of the
HRMU it argued that:
> the conditions in the HRMU are having an adverse
impact on the mental health of its inmates;
> mentally-ill prisoners are being placed in the HRMU
under segregation conditions rather than in the
specialist acute psychiatric wing of the prison hospital
at Long Bay;
> those held on terrorism related charges are not, but
should be permitted to see the Official Visitor;
> there is no mechanism for HRMU inmates to
challenge their placement and continued detention in
the facility. The courts have no power to intervene and
the NSW Commissioner of Corrective Services has
suggested that some HRMU inmates will remain in
the facility for the term of their natural lives;
> there have been allegations of political interference in
the running of the HRMU and a constant stream of
selective government and departmental leaks from the
HRMU to the popular media.
The UN Committee Against Torture in their Concluding
Observations in relation to Australia stated that it was
concerned over the harsh regime imposed on detainees in
‘supermax’ prisons’ and in particular ‘over the prolonged
isolation periods detainees, including those pending trial,
are subjected to and the effect such treatment may have
on their mental health.’ The Committee recommended
that the ‘State Party should review the regime imposed
on detainees in super-maximum prisons, in particular
the practice of prolonged isolation’. 78 The Committee
also recommended that the Australian government
should advise on what they done about this within one
year. 79
The Committee also noted with concern the situation
of overcrowding in prisons, the disproportionately high
number of Indigenous Australian incarcerated and the
continued reports of Indigenous deaths in custody.
77. NSW CCL, Addendum Shadow Report, 2007; available at www.nswcch.org.au/issues/prisoners/hrmu.php
78. Concluding Observations of the Committee Against Torture in Relation to Australia, 15 May 2008 para 24.
79. As above, rec 37.
18
HOT TOPICS 67 > Prisoners

Prisoners as
Citizens
Feudal conceptions of prisoners as ‘civilly dead’, far
from being consigned to history have undergone
somewhat of a revival, evident in Australia in the Dugan
decision as recently as 1979 where the High Court
held that the doctrine still applied to Australian capital
felons, meaning in Dugan’s case he could not sue for
defamation. 80 Echoes of civil death can be found in a
host of recent exclusionary practices:
> in the 2004 and 2006 federal disenfranchising
legislation, discussed below and in the Roach case –
see box);
> in State provisions restricting prisoner access to victims
compensation for injuries suffered in prison;
> in the Civil Liability Act 2002 (NSW) and subsequent
amendments which ‘substantially removes any effective
redress for negligence or abuse by prison authorities
and other prisoners’; 81
> in long standing exclusions in most jurisdictions from
jury service;
> in post release disabilities suffered by those with
criminal records such as gaining insurance;
> and in attempts to deny male prisoners access to medical
services in order to store sperm when undergoing
potentially debilitating surgery; to mention but some.
Positions range between those who argue that prisoners
should lose all rights including citizenship by virtue
of being convicted and imprisoned – that they have
forfeited their right to exercise citizenship – through to
those who argue that prisoners are simply citizens behind
bars and should lose none of their rights of citizenship
except those necessarily involved in imprisonment such
as the freedom of movement and assembly.
Perhaps prisoners can be seen as ‘conditional’ or ‘partial
citizens’, neither enjoying full citizenship, nor entirely
outside it. For example, Vaughan argues that ‘for
punishment to be meaningful, it must entail that some
rights and privileges are forgone; the process of inclusion
cannot be total.’ 82 In practice, the force operating in
and through the prison, its architecture, rules and
regulations, routines, enclosures, separations, effects on
the body, subservience to authority, in short the ‘pains
of imprisonment’, mean that prisoners’ citizenship is
indeed somewhat less than full.
As a political aim, partial or conditional citizenship
should be rendered fuller and more complete. The focus
should be on the necessary conditions under which
prisoners might participate in a democratic citizenship.
To enable this:
prisoners must be secured under regimes which
are healthy, not conducive to or tolerant of
violence; conditions which promote contact with
family and friends and the various associations
of civil society; conditions which promote the
maximum ability to participate in public discourse
through access to all forms of media, including
the internet; conditions which encourage
participation in meaningful literacy, education,
work skills and other programs; and conditions
which do not permit the isolation and segregation
of prisoners for the purposes of punishment or
convenience, except on justifiable grounds which
can be tested against clearly articulated legal
standards. 83
ATTempTed remOvAl Of prisOner
frAncHise
In 2006, the Howard Federal Government attempted
to completely remove serving prisoners from the
franchise in federal elections, taking the position back
to before federation. 84 Notably absent from government
contributions to the 2004 and 2006 parliamentary
debates was any reference to the importance of the
franchise as a manifestation (indeed under the Electoral
80. Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583.
81. A Morrison (2007) ‘The duty of care to prisoners’ 81 Precedent, July/August 8-12.
82. B Vaughan (2000) ‘The Civilizing Process and the Janus-Face of Modern Punishment’ Theoretical Criminology 4:1: 71-91 at 26.
83. D Brown, ‘Prisoners as Citizens’ in Prisoners as Citizens, D Brown and M Wilkie (eds) Federation Press 2002 at p 324.
84. See G Orr, ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners’, (1998) 26 Federal Law Review 55; J Fitzgerald and G
Zdenkowski, ‘Voting Rights of Convicted Persons’ (1987) 11 Criminal Law Journal 11; J Davidson, ‘Inside Outcasts: Prisoners and the Right
to Vote in Australia’ (Current Issues Brief No 12 2003-04, Australian Parliamentary Library, 2004) http://www.aph.gov.au/library/pubs/
CIB/2003-04/04cib12.pdf; M Ridley-Smith and R Redman, ‘Prisoners and the Right to Vote’, in D Brown and M Wilkie (eds) Prisoners as
Citizens (2002) 283.
prisoners as citizens 19

Act, a ‘duty’) of citizenship, a basic human right, and a
mechanism of participation in a democratic polity. The
independent country-based MP, Peter Andren, and the
leader of the Greens, Senator Bob Brown raised these
broader arguments.
Peter Andren:
‘the right to vote – to have a say in who governs
the country and even, at a state level, who runs
the prisons – is a basic human right. as a right,
it is not something that should be taken away by
politicians.’ 85
Bob Brown:
‘the whole basis of the respect for the rule of
law rests on the participation of citizens through
the democratic selection of their representatives
making the law. how will prisoners subject to
this feudal concept of civil death have respect for
the law if they are banned from participating in
its formation? one has to remember that it is our
job to encourage people to take part in society,
to feel empowered to be in society and to feel
they have a role in society – not to take away that
role.’ 86
The government argument seemed to be that
disenfranchisement of prisoners enhances civic
responsibility and the rule of law. That same argument
had been put by the UK, South African and Canadian
governments previously and rejected by the courts each
time. 87 In the case of Sauvé the Canadian Supreme
Court stated:
the legitimacy of the law and the obligation to
obey the law flow directly from the right of every
citizen to vote. to deny prisoners the right to vote
is to lose an important means of teaching them
democratic values and social responsibility. 88
When challenged in the Australian High Court in the
Roach case (see separate box) it was unsuccessful as
well and the 2006 legislation totally disenfranchising
prisoners from voting in federal elections was struck
down as unconstitutional. The court upheld the 2004
legislation which restricted the vote to those serving
sentences of less than three years.
cAse sTudy – r v BenBriKA
in r v Benbrika and ors (Ruling no 20) [2008] Vsc 80
(20 March 2008), Justice Bongiorno upheld a defence
submission for a stay of proceedings on the basis that
the conditions of imprisonment in the acacia unit at
Barwon were such that a fair trial was not possible.
the defence argument was that the oppressive
conditions in which they are currently incarcerated and
transported is having such an effect on their capacity to
attend to their own interests in defence of the charges
against them that the trial they are currently engaged in
is unfair and will become more so as time passes.
r v Benbrika [2008] Vsc 80, para 80.
Justice Bongiorno ruled that:
the minimum alterations to the accuseds’ conditions
of incarceration and travel which would be necessary
to remove the unfairness currently affecting this trial
are as follows:
1. they be incarcerated for the rest of the trial at the
Metropolitan assessment prison, spencer street.
2. they be transported to and from court directly
from and to the Map without any detour.
3. they be not shackled or subjected to any other
restraining devices other than ordinary handcuffs
not connected to a waist belt.
4. they not be strip searched in any situation where
they have been under constant supervision and
have only been in secure areas.
5. that their out of cell hours on days when they do
not attend court be not less than ten.
that they otherwise be subjected to conditions of
incarceration not more onerous than those normally
imposed on ordinary remand prisoners, including
conditions as to professional and personal visitors.
(see para 100)
an adjournment was granted to enable these changes to
be made, following an earlier ruling that screens in the
court had to be removed.
on 15 september 2008 Benbrika was found guilty
of intentionally directing the activities of a terrorist
organisation and of being a member of a terrorist
organisation. Five of Benbrika’s followers were found
guilty of intentionally being members of a terrorist
group and four others were acquitted. in February 2009,
Benbrika was sentenced to 15 years in prison.
Available online at http://www.austlii.edu.au/au/cases/vic/VSC/ 2008/80.
html
85. Hansard, House of Representatives, 10 August 2004.
86. Hansard, Senate, 12 August 2004.
87. In the UK case of Hirst v United Kingdom (No 2) 74025/01 ECHR 2004; the South African case of Minister of Home Affairs v National
Institute for Crime Prevention (NICRO) (2004) 5 BCLR 445 (CC) and the Canadian case of Sauvé v Canada (Chief Electoral Officer) [2002]
3 SCR 519.
88. [2002] 3 SCR 519, pp 4-5.
20
HOT TOPICS 67 > Prisoners

cAse sTudy – rOAcH v AusTrAliAn elecTOrAl cOmmissiOn
the 2004 and 2006 prisoner disenfranchisement legislation was challenged in the australian high court in June 2007
by Vickie Lee Roach an indigenous woman prisoner in Victoria. 89 Vickie Roach has completed a Masters degree in
prison, is hoping to start a phD and is active in prison based education programs and in mentoring other prisoners
over political and governmental issues affecting them. in an open letter read on aBc Radio national’s The Law Report
she wrote:
the one inescapable fact is that at any given time there are approximately 20,000 prisoners in this country,
and 99% of these will be released eventually. For most of us, re-entry to society will come sooner rather than
later. For many, during the term of whichever government will be elected later this year. excluding us from the
democratic process while we are in prison, however short our stay might be, implies we have forfeited our right to
political participation, not just for the duration of our term of imprisonment, but for however long it might be until
any subsequent election. i believe this serves only to further alienate us from society and ensures that the exiting
prisoner feels no connection, commitment, or loyalty to his or her community, and may therefore not feel bound to
respect its laws or social mores.
the human Rights Resource centre based in Melbourne organised a team of pro bono lawyers to work on the case. 90
the two key arguments were:
1. that the 2006 amendments disenfranchising all serving prisoners were incompatible with sections 7 and 24
of the australian constitution which provides that the senate and house of Representatives shall be directly
chosen ‘by the people’; and
2. that the disenfranchising provisions were invalid as contrary to either the implied freedom of political
communication, or the freedom of participation, association and communication implied in the constitution.
the high court by majority upheld Vickie Roach’s case on the first argument, without deciding the second. the court
held that the 2004 act, with its prisoner voting disqualification limited to prisoners serving sentences of three years
or more, was valid.
chief Justice gleeson argued that: ‘the words of ss 7 and 24, because of changed historical circumstances including
legislative history, have come to be a constitutional protection of the right to vote. that, however, leaves open for
debate the nature and extent of the exceptions. the constitution leaves it to parliament to define those exceptions,
but its power to do so is not unconstrained.’ section 44 of the constitution, which deals with the disqualification of
senators and members of the house of Representatives, disqualifies a person convicted and under sentence for ‘one
year or longer’. the prisoner disenfranchisement legislation attempted to impose stricter standards on the eligibility
to be a voter than the constitution imposes upon eligibility to be a politician.
in nsW, short term sentences account for some 65% of all prison sentences in one year. also, other options such as
non-custodial sentences are limited in rural and regional areas. so, according to chief Justice gleeson, using the fact
of imprisonment as the criterion for disqualification from voting, ‘becomes arbitrary’. (para 23)
While the Roach case was an important victory for prisoners and their supporters, the decision is limited.
the argument based on the implied freedom of participation, association and communication was not decided 91
and the 2004 legislation disenfranchising those serving sentences of three years or more was upheld. this meant
that the plaintiff, Vickie Lee Roach, whose sentence was five years, was still unable to vote at the october 2007
federal election.
89. Roach v Electoral Commission [2007] HCA 43, 26 September 2007; available at http://www.austlii.edu.au/au/cases/cth/HCA/2007/43.html
90. For an account of the hearing see D Brown, ‘The Disenfranchisement of Prisoners: Roach v Electoral Commission & Anor – modernity v
feudalism’ 32:3 Alternative Law Journal September 2007,132-7.
91. On the importance more generally of listening to the voices of prisoners see D Brown, ‘Giving Voice: The Prisoner and Discursive Citizenship’
in The Critical Criminology Companion, T Anthony and C Cunneen (eds) Hawkins Press: Sydney 2008, pp 228-239.
prisoners as citizens 21

Imprisonment
in NSW
92
lAWs And pOlicies
Listed below are some of the main pieces of legislation that
currently apply to prisoners and imprisonment in NSW
which can be accessed from the NSW Parliamentary
Counsel’s Office website at www.legislation.nsw.gov.au
Note: For more critical accounts of how some of these
various legal regulations apply in practice: see Sydney
Morning Herald Special Investigation, ‘Captive State’,
SMH, 6-11 December 2008.
acts
> Crimes (Administration of Sentences) Act 1999 (NSW) –
includes general obligations of inmates, circumstances
for segregation or protective custody, management of
juvenile inmates, circumstances for transfers.
> Crimes (Sentencing Procedure) Act 1999 (NSW) –
covers areas such as the purposes of sentencing and the
types of penalties that may be imposed (custodial and
non-custodial), fines, sentencing procedures, victim
impact statements, and sentencing guidelines.
> Summary Offences Act 1988 (NSW) – sets out many
offences which may lead to imprisonment; they are
generally considered less serious offences and can be
dealt with by a local court.
> Crimes Act 1900 (NSW) – deals with the more serious
offences including homicide, assault, sexual assault,
kidnapping, explosives and firearms offences, theft,
fraud, property crimes, blackmail, forgery, terrorism
and animal cruelty, as well as defences to criminal
responsibility.
> Crimes (Serious Sex Offenders) Act 2006 (NSW) –
covers extended supervision orders and continuing
detention orders for serious sex offenders.
> Bail Act 1978 (NSW) covers the circumstances
where bail will or will not be considered, which has
implications for the numbers on remand (see page 3).
> Fines Act 1996 (NSW) – deals with the circumstances
under which non-payment of fines can lead to
imprisonment.
> Crimes (Interstate Transfer of Community Based
Sentences) Act 2004 (NSW).
> Prisoners (Interstate Transfer) Act 1982 (NSW).
> Parole Orders (Transfer) Act 1983 (NSW).
> International Transfer of Prisoners Act (New South
Wales) 1997.
Regulations
> Crimes (Administration of Sentences) Regulation
2008 (NSW) – deals with the detail of admission
classification, case management, correctional centre
routine, searching, food, cleanliness, inmate services,
chaplaincy, visits, written communications, discipline,
offences, release procedure, periodic detention, home
detention, staff obligations and many other matters.
> Prisoners (Interstate Transfers) Regulation 2004.
> Crimes (Interstate Transfer of Community Based
Sentences) Regulation 2004.
The Crimes (Administration of Sentences) Act and
corresponding Regulation cover many more areas of
prison life. In addition, the Department of Corrective
Services publishes a Policy and Procedure Manual.
prisOns in nsW
The NSW Department of Corrective Services, headed
by a Commissioner is responsible for:
> 31 correctional centres – 8 maximum, 13 medium and
10 minimum security facilities;
> 8 periodic detention centres;
> 1 transitional centre for female inmates;
> 65 probation and parole district offices.
Only one NSW prison (Junee) is privately run as at
January 2009, however the NSW government has
announced plans to privatise prisons at Parklea and
Cessnock. The NSW Legislative Council will hold an
inquiry into the proposal. 93
Correctional centres are divided into four types, however,
some centres cover more than one type of security
classification.
92. Most of the information in this section has been drawn from the legislation as accessed in January 2009 from the Parliamentary Counsel’s
website www.legislation.nsw.gov.au, from the Department of Corrective Services website www.dcs.nsw.gov.au and from the May 2008 version
of the manual.
93. ‘Upper house inquiry into prison privatisation plan’ 15 December 2008 http://www.abc.net.au/news/stories/2008/12/15/2446150.htm
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HOT TOPICS 67 > Prisoners

Reception
New inmates go through a Reception, Screening and
Induction Program to identify their immediate needs
and issues such as risk of suicide, mental illness and drug
and alcohol withdrawal. Their details are recorded, as
required by Schedule 1 to the Crimes (Administration of
Sentences) Regulation 2008 (NSW).
Maximum security
Maximum security correctional centres hold inmates
whose escape would be highly dangerous to members of
the public or the security of the State.
Medium security
Medium security correctional centres are normally
surrounded by walls or high security fences, but inmates
move around inside more freely than in maximum
security.
Minimum security
Minimum security correctional centres hold inmates
who can be trusted in open conditions where there are
fewer physical barriers to escape.
cOrrecTiOnAl cenTre securiTy
clAssificATiOns
> Bathurst – medium (also has a minimum security area
and a reception and screening area)
> Berrima – medium
> Brewarrina (Yetta Dinnakkal) – minimum
> Broken Hill – medium (also has a minimum security
area and a reception and screening area)
> Cessnock – minimum (also has a maximum security
area and a reception and screening area)
> Compulsory Drug Treatment – medium
> Cooma – medium
> Dillwynia (Windsor) – medium
> Emu Plains – minimum
> Glen Innes – minimum
> Goulburn – maximum (also has a minimum security
area)
> Grafton – medium (also has a minimum security area
and a reception and screening area)
> Ivanhoe (Warakirri) – minimum
> John Moroney (Windsor) – medium (also has a
minimum security area and a reception and screening
area)
> Junee – medium (also has a minimum security area)
> Kariong Juvenile (Gosford) – medium (also has a
reception and screening area)
> Kirkconnell (Bathurst) – minimum
> Lithgow – maximum
> Long Bay – maximum
> Long Bay Hospital – maximum
> Mannus (Tumbarumba) – minimum
> Metropolitan Remand and Reception (MRRC) –
maximum (also has a reception and screening area)
> Metropolitan Special Programs Centre (MSPC) (Long
Bay) – maximum (also has minimum security area)
> Mid–North Coast (Kempsey) – medium (also has a
minimum security area)
> Nowra – to open in 2010
> Oberon – minimum
> Parklea – maximum
> Parramatta – medium
> Silverwater – minimum (also a reception and screening
centre)
> Silverwater Women’s (formerly Mulawa) – maximum
(also a reception and screening centre)
> St Heliers (Muswellbrook) – minimum
> Tabulam (Balund-A) – minimum
> Tamworth – medium (also has a minimum security
area and is a reception and screening centre)
> Wellington – minimum (also maximum and is a
reception centre)
recepTiOn
A prisoner is received at a reception gaol where staff
collect personal information (some information may have
already been gathered at the court. They are searched
and given a medical examination by Corrections Health
staff. A Welfare Officer will then undertake a crisis
assessment and offer support. If a prisoner is thought to
be ‘at risk of self-harm’ they will be referred to a mental
health professional. The prisoner is allocated to a prison
cell that is appropriate to their needs or conditions.
Formal induction usually begins the morning after
arrival.
inducTiOn prOcesses
Induction is about giving prisoners the information they
need about the correctional system and helping them to
understand what will happen to them while they are in
prison. Prisoners should be given information about the
behaviours that are considered to be offences within the
prison system and about:
> the correctional centre rules;
> the inmate’s obligations as to discipline and conduct;
> the inmate’s rights as to legal representation and
appeal;
> the case management process;
> the authorised methods of seeking information and
making complaints;
> the role of an Official Visitor;
> the functions of the Review Council in relation to the
segregation and protective custody of inmates;
imprisonment in nsW 23

any other matter necessary to enable the inmate to
understand the inmate’s rights and obligations and
adapt to living in the centre.
An inmate must surrender all property in their possession
to an authorised officer. Any property belonging to the
inmate brought to the prison by a police officer or
Corrective Services Officer will be handed to the general
manager. The general manager determines which items
of property are suitable for the inmate to have in their
possession. See ‘Property’ below for more detail on what
items inmates may possess.
Case management plans are made as soon as practicable
after the inmate’s arrival, and cover such things as:
> the prisoner’s classification;
> programs in which they are to be encouraged to
participate;
> health services;
> strategies to minimalise the impact of any disability eg
in relation to participation in a work program;
> strategies to minimalise the risk of self harm if that
appears to be likely;
> implementation of the recommendations from the
Report into Aboriginal Deaths in custody where the
inmate is Aboriginal;
> the provision of pre-release and post-release assistance
(such as how to access social services and drug and
alcohol programs).
prisOner clAssificATiOn
Prisoner classification is important because it determines
at which correctional facility an inmate is placed, which
has an effect on the access they have to programs. It
also determines their privileges within the system.
Classification and placement are reviewed every six
months.
When completing the Initial Case Plan form the inmate
is to have explained to him/her the factors that affect his
classification, placement and management:
> convicted/unconvicted;
> protection/not protection;
> nature of offence;
> length of minimum period of custody/and sentence;
> assessed risk/need factors;
> previous criminal record;
> previous custodial history and conduct in custody;
> vacancies in centres.
Where an inmate is identified as ‘public interest’,
‘escapee’ or ‘serious offender’, the implication of these
designations must be fully explained to the inmate,
particularly progression through minimum security to
external leave programs.
Each male inmate is classified in one of the following
categories:
Category AA – inmates who represent a special risk to
national security (for example, because of a perceived
risk that they may engage in, or incite other persons to
engage in, terrorist activities) and should at all times
be confined in special facilities within a secure physical
barrier that includes towers or electronic surveillance
equipment.
Category A1 – inmates who represent a special risk
to good order and security and should at all times be
confined in special facilities within a secure physical
barrier that includes towers or electronic surveillance
equipment.
Category A2 – inmates who should at all times be
confined by a secure physical barrier that includes
towers, other highly secure perimeter structures or
electronic surveillance equipment.
Category B – inmates who should at all times be
confined by a secure physical barrier.
Category C1 – inmates who should be confined
by a physical barrier unless in the company of a
correctional officer or some other person authorised by
the Commissioner.
Category C2 – inmates who need not be confined by
a physical barrier at all times but who need some level
of supervision by a correctional officer or some other
person authorised by the Commissioner.
Category C3 – inmates who need not be confined by
a physical barrier at all times and who need not be
supervised.
Female inmates have similar levels of classification from
Category 5 (special risk to national security) down to
Category 1 (need not be confined by a physical barrier at
all times and who need not be supervised).
Changes to classification can be made by the
Commissioner but some changes, set out in clause 27
of the Crimes (Administration of Sentences) Regulations
2008, must be considered by a Review Council.
sepArATiOn And segregATiOn
Prisoners are divided into the following classes:
> convicted inmates;
> unconvicted inmates;
> civil inmates.
As far as practicable inmates of any class are kept
separate from inmates of any other class. Within each
class, the Commissioner may direct that the following
inmates be kept separate from other inmates:
> those inmates who have not previously been
imprisoned;
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HOT TOPICS 67 > Prisoners

those inmates who would be at risk if not separated
from other inmates;
> those inmates who are forensic patients within the
meaning of the Mental Health Act 2007 (NSW);
> those inmates who are detained under a preventative
detention order within the meaning of Part 2A of the
Terrorism (Police Powers) Act 2002 (NSW);
> inmates who are imprisoned due to a fine default.
Where inmates are required to share a cell, the other
inmate must be carefully selected, and each inmate must
be supplied with a separate bed and bedding. Inmates
who have (or are suspected to have) an infectious
condition may be kept separate from other inmates. An
inmate must not enter a cell that has not been allocated
for their use unless they are authorised by the general
manager or correctional officer.
Inmates can be kept in segregated custody if it is
considered that their association with other inmates is
a threat to:
> the personal safety of any other person;
> the security of a correctional centre;
> good order and discipline.
protective custody
An inmate can be held in protective custody if the
association of the inmate with other inmates constitutes
or is likely to constitute a threat to the personal safety
of the inmate. An inmate can also be held in protective
custody on written request to the Commissioner.
Decisions on segregation and protective custody are
reviewed within a period of 21 days and every three
months after the first review.
seArcHes
An inmate may be searched by a correctional officer
(including strip-searched) as the general manager directs
or as the correctional officer considers appropriate. An
inmate must not be strip-searched by or in the presence
of a person of the opposite sex except in the case of an
emergency. Searching of an inmate must be carried out
with ‘due regard to dignity and self-respect and in as
seemly a manner as is consistent with the conduct of an
effective search’.
It is a correctional centre offence for an inmate to resist
or impede the conduct of a search.
persOnAl prOperTy
All property must be searched when first received and
before it is issued and/or stored. Any property that
is a risk to security or safety will be confiscated. An
Inmate Property Record will be generated at the time of
reception.
The amount of personal property that may be kept
by an inmate depends on the length of their sentence.
Unconvicted inmates and inmates serving sentences
of less than six months are allowed one container
each, and those serving longer sentences are allowed
two containers. All approved property must be able to
be stored in the containers with the exception of the
following additional items:
> electric kettle;
> portable radio;
> television;
> legal papers;
> art/craft item (up to 1 metre square).
Excess property may be confiscated and disposed of
as for property surrendered on reception. Property
cannot be delivered from one inmate to another without
permission. Any food or other property considered
unhygienic can be destroyed. Property in the cell must
be kept tidy (so that searches are not impeded).
clothing
Inmates receive a standard issue of clothing (3 t-shirts;
fleecy tracksuit top/sloppy joe; fleecy tracksuit pants; 2
pairs of shorts; 4 singlets; 5 pairs of underpants; 5 pairs
of socks; 1 pair of shoes).
There is a list of additional clothing items that can be
provided to inmates depending on their needs and the
location of the correctional centre.
Private clothing may be delivered to a correctional
centre for:
> court appearances;
> approved short-term leave;
> external education or employment programs; and
> prior to discharge or deportation.
discipline And punisHmenT
Inmates must comply with the correctional centre’s
routine and hours of work. They must obey any call
to muster in a particular area when asked by an officer
or notified by bell, whistle or siren etc. Inmates must
submit to breath testing for alcohol or provide a urine
sample for drug testing if it is suspected that they are
under the influence of alcohol or drugs.
Any contravention of the provisions in the Crimes
(Administration of Sentences) Act is a ‘correctional centre
offence’. There are also a number of correctional centre
offences created under the Crimes (Administration of
Sentencing) Regulation 2008. They are set out in clauses
124- 146 and Schedule 2 of the regulations. The range of
sanctions that may be imposed by the general manager
of the correctional centre includes:
> reprimand and caution;
imprisonment in nsW 25

withdrawal of privileges for up to 56 days (includes
things like access to television, radio, films, videos,
CDs and DVDs, leisure activities, ability to purchase
goods, contact visits and keeping of approved
property);
> confinement to a cell for up to 7 days with or without
deprivation of privileges;
> imposing a penalty may be deferred conditional upon
good behaviour for uup to two months;
> cancellation of payments for a period of up to two
weeks.
Serious offences are referred to a Visiting Magistrate
who can impose more extensive punishments, including
extending the inmate’s sentence by up to six months.
The Visiting Magistrate will refer the matter to the
Local Court where the offence constitutes a criminal
offence. A decision of the Visiting Magistrate may be
appealed to the District Court under Part 3 of the
Crimes (Local Courts Appeal and Review) Act 2001.
BAnKing And purcHAsing
Correctional facilities are cashless environments –
inmates have a prison account where money from their
families or from work programs is deposited. This
account is used to make purchases from the prison ‘buyup’,
items such as toothpaste, soap, tobacco, tea, coffee,
canned food, soft drinks and cereal.
mAil
Inmates are able to send and receive letters and parcels
to and from any other person. The material sent by an
inmate must not be threatening, abusive, indecent or
obscene. The general manager may open and inspect
letters and parcels, and may confiscate any prohibited
goods. There are some bodies that are exempt from
having correspondence opened, for example the Legal
Aid Commission, the Ombudsman, the Judicial
Commission. 94 Stricter regulations apply to prisoners
with the highest classification – category AA male
inmates and Category 5 female inmates.
TelepHOne cAlls
Unconvicted inmates are permitted to make up to
three local or fringe area telephone calls per week
at departmental expense. Their legal telephone calls
are also made at departmental expense. Convicted
inmates are permitted to make one local or fringe
area call per week at departmental expense. Telephone
calls for humanitarian purposes such as illness, death
in the family or birth of a child should be provided
without delay and in addition to the inmate’s normal
entitlements. Inmates are permitted to contact mobile
telephones.
Inmate calls to personal telephone numbers may be
monitored and/or recorded. Calls may be terminated by
a correctional officer if they believe that it will ‘prejudice
good order and security of any correctional centre’
(clause 110). There is a limit to the number of calls and
faxes that an inmate can make per week, which depends
on their classification and is fixed by the Commissioner.
The cost of additional calls is generally to be met by
the inmate, with some exceptions, such as calls to
the Ombudsman, Independent Commission Against
Corruption or Legal Aid Commission (see clause 111).
Possession of a mobile telephone (or camera, video or
audio recorder) is a correctional centre offence.
visiTs
A correctional centre will have set visiting hours, and
visits are usually a minimum of 30 minutes. The general
manager can authorise visits outside of visiting hours in
some circumstances. The details of all visits are recorded.
There are a range of ‘special’ visits which include visits
by a legal practitioner, visits by a diplomat to foreign
nationals, visits to Aboriginal inmates by the Aboriginal
Legal Service field officer. The Commissioner can
restrict particular people from visiting, and can restrict
the type of visit (eg make it a non-contact visit). An
inmate is entitled to refuse to see a visitor unless it is a
government official.
A visitor may be refused entry if they are believed to be
under the influence of drugs or alcohol. Visitors may
be required to provide proof of identity and a reason
for their visit. They may have their personal possessions
searched and inspected (including use of a sniffer dog
and scanner). Prior permission must be obtained for
visitors to take photographs or other recordings inside
a correctional centre. Visits must be in sight of a
correctional officer and are designated as ‘contact visits’
where physical contact is permitted, or ‘non-contact
visits’ where contact cannot take place. Visits may be
terminated:
> if the visitor is considered to have behaved in
contravention of the relevant legislation;
> if the visitor has behaved threateningly or offensively;
> in the interests of the visitor;
> in the interests of the security of the correctional
centre.
94. For the full list of exempt organisations see Crimes (Administration of Sentences) Regulation 2008 see the entry for ‘exempt organisations’ in the
dictionary section at the end of the regulation, available at www.legislation.nsw.gov.au
26
HOT TOPICS 67 > Prisoners

Further Information
The Legal information access centre (Liac)
located in the State Library can help if you need
more information about the law, including cases and
legislation. The service is free and confidential. LIAC
selects and updates a standard collection of resources to
answer commonly asked questions about the law, which
is available in all public library branches and is also in
the 36 prison libraries across NSW. See back cover for
LIAC contact details.
BOOKs And jOurnAls
The law handbook, 10th ed, R Barry (ed), Redfern
Legal Centre Publishing 2007. See Chapter 36
Prisoners. A Tool Kit title available in all public
libraries. 11th edition available August 2009.
Brown, Farrier, Neal and Weisbrot’s criminal laws:
materials and commentary on criminal process in
NSW, Brown, Farrier, Egger, McNamara and Steel,
Federation Press, 2006. See Chapter 12 Sentencing and
penalty. A Law Books for Libraries title available in
many public libraries – contact LIAC for details.
Corrections criminology, S O’Toole and S Eyland
(eds) Hawkins Press 2005.
Corrections in Australia, S O’Toole, Butterworths
2002.
Crime and criminology, R White and F Haines,
Oxford University Press, 4th ed, 2008.
Crime and justice: a guide to criminology, A
Goldsmith, M Israel and K Daly (eds), Lawbook Co,
2006. See Chapter 16 Prisons and imprisonment.
History of Australian corrections, S O’Toole, UNSW
Press, 2006.
Introduction to crime and criminology, H Hayes and
T Prenzler, 2nd ed, Pearson Education Australia, 2008.
See Chapter 18 Corrections.
Continued – see over.
image unavailable
Stateville prison in Joliet, Illinois, opened in 1925. Designed by criminologist Jeremy Bentham, it is the only remaining
panopticon cell house or roundhouse still in use in the USA.
Lloyd DeGrane, 1990. Chicago Historical Society.
Further information 27

Issues relating to the operations and management
of the Department of Corrective Services, NSW
Parliament Legislative Council, General Purpose
Standing Committee No. 3, 2006. Available at http://
www.parliament.nsw.gov.au/prod/parlment/committee.
nsf/V3Home under reports on the left hand menu,
select All (1999+) and scroll down to find the report
dated 5 June 2006.
Juvenile justice: youth and crime in Australia,
C Cunneen and R White, 3rd ed. Oxford University
Press, 2007. See Chapter 11 Detention and community
corrections.
Law and order in Australia: rhetoric and reality,
D Weatherburn, Federation Press, 2004. See Chapter 5
What can the criminal justice system do?
Privatisation of prisons, L Roth, NSW Parliamentary
Library Research Service, No.3, 2004. Also available
online at www.parliament.nsw.gov.au/prod/parlment/
publications.nsf/V3ListRPSubject scroll down to find
the paper dated July 2004.
World encyclopedia of police forces and correctional
systems, G Kurian (ed), Gale 2006.
WeBsiTes & services
Australian Bureau of Statistics
www.abs.gov.au
Website includes the report Prisoners in Australia 2007
and media releases on crime and justice statistics.
Australian Institute of Criminology
www.aic.gov.au
Australian Prison Research Project
www.app.unsw.edu.au
Academic research project on penal culture, includes
links to research.
NSW Bureau of Crime Statistics and Research
www.bocsar.nsw.gov.au
NSW Department of Corrective Services
www.dcs.nsw.gov.au
Website includes information on visiting, offender
management and research and statistics.
Also includes:
– Aboriginal and Torres Strait Islander Inmate
Handbook, 2nd ed. 2002. www.dcs.nsw.gov.au/
offender_management/offender_services_and_
programs/ASPU/ATSI%20Inmate%20Handbook.pdf
Legal Aid NSW
www.legalaid.nsw.gov.au
– ‘Back on track’ is a series of 6 DVDs produced by
Legal Aid NSW in 2008 to educate prisoners on
resolving legal problems, including the court process,
debt, fines and tenancy.
– Prisoners Legal Service, operated by Legal Aid
NSW, provides free and confidential legal advice and
minor assistance, including court appearances for
prisoners in most gaols in NSW.
Tel: 9219 5888
LawAccess NSW – Prisoners Service
LawAccess is a telephone service that provides free
legal information, advice and referrals to people with
a legal problem in NSW. Prisoners can call LawAccess
via their toll-free 1300 number for legal information
and referrals. Prisoners are classified as priority clients
and are transferred directly to Legal Aid if they have a
court matter or are put straight through to a LawAccess
lawyer for other issues.
Community Restorative Centre NSW
www.crcnsw.org.au
CRC is a community organisation providing support
to people affected by the criminal justice system,
particularly prisoners, ex-prisoners and their families.
Services include counselling accommodation, subsidised
transport, court support, outreach, information, advice
and referrals.
Factsheets on the website include:
– Families of prisoners: frequently asked questions
(NSW), 2008, http://www.crcnsw.org.au/families/
families.htm also available in Arabic, Chinese,
English, Spanish, Vietnamese and Greek.
– Getting out: your guide to surviving on the
outside (NSW), 2008 http://www.crcnsw.org.au/
PDFs/CRC_Getting_Out.pdf
Justice Action
www.justiceaction.org.au
A community-based organisation comprising criminal
justice and prison reform activists which includes
prisoners, ex-prisoners, lawyers, academics, victims of
crime, and community members.
NSW Council for Civil Liberties
www.nswccl.org.au/issues/prisoners/index.php
Website includes useful articles, information on dealing
with complaints and links.
Australian Human Rights Commission
www.humanrights.gov.au/HUMAN_RIGHTS/
prisoners/index.html
Website includes a page on Prisoners and Human
Rights with links to useful articles and reports.
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HOT TOPICS 67 > Prisoners