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Research Report: Taking justice into custody: the legal needs of prisoners
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Taking justice into custody: the legal needs of prisoners  ( 2008 )  Cite this report



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Chapter 7. Systemic Environment


As outlined in the Chapter 6, prisoners arrive in prison with a range of characteristics and experiences which affect their own personal capacity to access justice. This chapter focuses on how the capacity of an inmate to access justice is affected by the formal systems with which they come into contact as a consequence of being in prison and having legal needs. These systems include the legal system (legal services, courts and tribunals), the custodial system (prison and parole services) and bureaucratic systems (government departments such as Centrelink, DOH and the DIAC). In this report we refer to all these systems collectively as the 'systemic environment'. While there are other systems that prisoners are likely to come into contact, the systems highlighted above are the ones most commonly referred to by our interviewees.

Chapter 5 describes the ways in which prisoners access legal information and assistance and participate in legal processes. However, interviews for this study suggest that there are a number of features of these systems, which in practice may undermine inmates' access to legal help and participate in legal processes. Broadly speaking, our analysis indicated that barriers arise from:

  • the limited resources available to ensure the various systems operate as intended
  • systemic processes that directly or indirectly disrupt inmates' access to assistance with legal issues.

Before describing the impact of systemic resources and processes on inmate ability to obtain legal assistance, we will briefly review the systems in place to facilitate inmates' access to justice.

Systems in place to access justice

As discussed at the outset of this report, DCS aims to 'manage offenders in a safe, secure and humane manner'.42 Complex systems are in place to achieve these aims including: prison security, protection and segregation facilities, and the classification system, which classifies inmates according to their security risk and 'developmental needs'.

DCS also has systems and resources that address the welfare needs of inmates, including those that may help with the resolution of legal problems. In brief, those that facilitate (although are not dedicated to) access to legal information and assistance include: prison libraries; the 'visits' system; the telephone system; and, education and training. Prison staff, although not strictly a 'system', is also part of the wider systemic environment that supports the welfare needs of inmates, including their legal needs. Further details of these systems are contained in Chapter 5.

Legal services intersect with custodial systems in the provision of legal advice services in prisons and at courts (e.g. Legal Aid, the ALS and private lawyers). Prison inmates also contend with the legal system (various courts and tribunals) and bureaucratic systems (including the SDRO, Centrelink and DIAC) in order to resolve their legal problems.

Systemic resources

As summarised above, formal legal information and advice services are made available to prisoner inmates. However, our analysis suggests that these limited resources are strained and accordingly undermined by the high demand placed upon them. The following section examines how the ability of inmates to access legal information, contact their lawyer or participate in a legal process may be constrained by limits on the resourcing of:

  • legal services
  • DCS staff (including custodial officers and welfare staff)
  • DCS facilities (including computers, library and education facilities, telephones).

Legal services

Both Legal Aid and the ALS are important providers of legal advice and representation to NSW prisoners. Our interviews indicated, however, that the demand placed on Legal Aid and ALS lawyers both at court and when they visited prisons often outweighed their capacity to meet this demand.

PLS visiting legal advice service

Once in custody at a remand or sentenced jail, inmates may access the PLS (Prisoners Legal Service) legal advice service provided in all prisons.43 The ALS also runs regular field officer advice and support services to Aboriginal prison inmates.44 Many interviewees for this study commented on the high number of inmates that lawyers from both Legal Aid and the ALS would typically have to see. Often this meant that the time available for each inmate was brief:

    Sometimes you might need more than a few minutes but because they've got so many they want to see, then they can only give you, like, two, three minutes to see you, and they've got to get quick details and then rush off. They need to send more lawyers out here.
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

It was also reported that even when an inmate had put down their name for an appointment to see the Legal Aid solicitor or ALS field officer, they were not always able to see them on the day they attended the prison because of the large number of inmates booked to see a lawyer:
    Many times I'm helping inmates fill out a Legal Aid application or putting their name down (in) the Legal Aid book at the prison. And sometimes they are seen and sometimes they are not, it just depends on the sheer volume of people who need to see them.
— DCS welfare officers, urban prison
    We had a visitor that'd come in … [a] regional officer that just visits Kooris, you know and ask the names if they want to see legal and all that stuff. And there'd be that many of us sometimes we wouldn't even get out, you know what I mean.
— Liz, female remandee, maximum security, 25–34 years, Aboriginal, urban prison

Even when an appointment is kept, some inmates felt that they did not have enough time to fully explain to the lawyer their case. Further, as suggested by the following quote, in the rush to impart information quickly, some inmates reported forgetting to tell the lawyer all the facts relevant to their case:
    Although what is difficult is they have a lot of people to see. So, when they do come out to jails … their time is very limited. It's a rushed session and … when I don't … express myself properly, I feel like I'm always forgetting something.
— Luke, male remandee, medium security, 25–34 years, Aboriginal, urban prison

As raised in Chapter 6, the limited time available to see lawyers particularly affects those inmates who, through disability or impairment, may have trouble communicating succinctly and effectively with their lawyer.

With high caseloads, opportunities for lawyers to address inmate's legal needs beyond their criminal matters, such as to answer a question about a debt problem were also reduced. As one solicitor commented:

    Some Prisoner Legal Services (PLS) try to do a little bit [of civil law matters], but, I think with their existing work load, the majority of them just say, 'Look, talk to Welfare.'
— Legal Aid solicitor

Some interviewees also noted that the advice service could not always assist with civil or family matters, if those issues were outside the expertise of the attending criminal lawyer. As one stakeholder explained, however, the complexity of different areas of law makes it difficult for those staffing the visiting legal advice service to be able to cover all areas of law to the depth required by the legal problems faced by the inmates:
    … as you know, criminal law has become more complex and more specialised, and the same can be said of all the civil law areas. So debt is a huge area, Family Law, and it's not reasonable in my view to expect the people who are working in the PLS … [to] be an expert in that area.
— Financial counsellor

Inmates can also use the advice session with a Legal Aid solicitor in prison to arrange for Legal Aid representation when they go to court. However, in some circumstances, as the following quotes indicate, inmates reported that they were not always able to see a representative from Legal Aid before they attended court:
    It's very hard to see one in jail because you've sort of got to get on a waiting list and wait for your turn to come up. Like a couple of times I've had to go to court and I haven't had a lawyer or anything.
— Jason, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Inmates felt that by not getting to see their legal representative, or only seeing them for a short period of time, their cases were not given the best possible chance:
    [It would] be good to sit down for half an hour … and go through everything, and say look, this is why it happened, or these are the circumstances of why it happened. Explain things a bit better … and maybe then he'll feel that, well, this bloke's telling the truth, I believe what he's saying so. Maybe then they try a little bit harder. But it's pretty brief … it's like a production line, really, isn't it? … usually when they come to the jail they see other cases as well, so they usually come out there and see a few of youse at once. And, you know, you get five minutes each, so they don't really get a good picture of the person you are.
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

The regularity of the legal advice service was also raised as an issue. Workers at a regional correctional centre reported that local solicitors providing the legal advice service on Legal Aid's behalf at that particular prison did not always attend when expected and that, periodically, there were significant lapses between the times they did attend. One DCS worker speculated:
    … I suppose the issue there is their staffing and resources. They don't seem to be very regular in their attendance … sometimes the list of inmates wanting to see these people (is) quite big.
— Non-custodial staff manager, rural prison

As this quote would suggest, prolonged periods between legal advice clinics only exacerbates the demand on lawyers' time when they do finally attend the prison. It should be noted that these issues are not necessarily particular to visits to NSW prisons. Similar concerns were voiced in a 2004 study of Legal Aid services in to women prisoners in Queensland (de Simone & d'Aquino, 2004, p. 5). Consequently, the shortage of legal resources in terms of lawyers with the PLS does impact upon inmates' ability to obtain comprehensive and timely legal advice.

Legal Aid: rural areas

Inmates are able to obtain a grant of Legal Aid to secure representation from a private lawyer or from a Legal Aid solicitor. However, our interviews suggested that limited numbers of solicitors were available to conduct Legal Aid work for inmates in regional correctional centres. This is illustrated by the following quote:

    There are only two Legal Aid solicitors that service that area, where's he going to go? Who else is going to help him? He can't afford to pay for his own private solicitor. That's a major problem.
— DCS welfare officers, urban prison

One factor limiting the availability of lawyers in rural and regional areas is the potential for conflict of interest issues, for instance, when the lawyer is already representing another party in the case and no other lawyers are available. An ex-prisoner living in a regional and rural area of NSW said:
    I got to see one lot of Legal Aid. And then it come up … I was on remand [for] … four weeks. And then I get to court and this solicitor's got to leave my case because it was a conflict of interest. So I was stuck in limbo, again.
— Barney, male ex-prisoner, 35+ years, non-Aboriginal, rural area

The view was also expressed that, with fewer lawyers in rural areas, the range of expertise available was also narrower:
    Just at times here in X [town near current prison], I've felt these fellows are a bit disadvantaged because they haven't got people who really have expertise in that particular area and it's very hard to get access to them.
— Chaplain, correctional centre

Limits on the funding of Legal Aid services and ALS, and the corresponding difficulties in meeting the demand for their services, was acknowledged by the Senate Legal and Constitutional References Committee 2004 inquiry into Legal aid and access to justice (pp. 4–8, 76). Submissions to the inquiry also suggested that legal aid services are 'spread too thinly' in rural and regional areas and that people living in such areas are 'disproportionately disadvantaged by gaps in the legal aid funding scheme' (Senate Legal and Constitutional References Committee, 2004, pp. 114–115).

Legal Aid: duty lawyers at court

As alluded to above, an inmate may not get to speak to a lawyer or ALS before appearing in court. Consequently, the first lawyer they may get to speak to is the Legal Aid duty solicitor45 who is at the court on the day of their hearing (e.g. for their bail hearing or concerning the matters for which they are being incarcerated). Our interviews suggest that, as with the PLS in prison, the high demand for the services of the duty lawyers at court has impacted on the amount of time they have to provide advice to clients before their matter was heard. Typical of the many comments made to this effect was:

    Like some days there are 20 odd fellows down in these cells. And like three minutes, four minutes each. And that's it.
— Barney, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Further, there can be little confidentiality under circumstances where there is such a press of demand:
    On the day it's … like they come and see you in the cells. And you've got everyone else there, and some of them are a little bit, they don't want to say something about their charges … they talk to you at the front of the cell there and through the bars.
— Dan, male sentenced prisoner, 35+ years, Aboriginal, rural prison

Consequently, while systems are in place for Legal Aid to provide legal advice and assistance to prisoners, our research suggests that the capacity of these services to provide the range and depth of legal assistance required by some inmates is restricted by limited available resources.46 In particular, inmates felt they needed advice beyond that pertaining to criminal law and that they needed more time and privacy with their legal advisers in order to engage fully with the process of resolving their legal issues. Yet the number of prisoners seeking advice has far outweighed the number of lawyers available. In our research, Legal Aid emerged as a key resource upon which many inmates relied, but one apparently stretched well beyond its capacity.

Legal assistance on civil matters

A final area that arose in our interviews in relation to legal service resources was an apparent imbalance in the availability and integration of legal assistance for civil matters and those for criminal charges. It is clear from the descriptions given in previous chapters that prisons, as an integral part of the criminal justice system, have a range of mechanisms that serve the resolution of inmates' criminal matters. However, in the case of civil matters it appears that access to assistance and the ability to participate in legal processes is more difficult from prison. One reason for this is an apparent lack of ready access to legal advice on civil issues:

    So unless you've got services like, say IDRS, that has solicitors who will go to jail, interview clients for particular matters but dig a little bit deeper, you're kind of going to miss all the other stuff.
— Solicitor, IDRS and CJSN
    We don't get [funded] to run civil litigation. We haven't got the money to do it.
— Manager, ALS
    If it's a criminal matter they will be referred to Prisoners Legal Service. And there is, not perfect machinery, but there [are] adequate mechanisms within the System for the person to get some referral and for a visit to occur. … When it comes to civil matters, there is nothing … So I'd have to say that I don't see that people who are in custody have access to legal advice as a right in civil and other related matters.
— Financial counsellor

At the time of writing, there were a small number of strategies to assist inmates with civil legal matters, such as the civil law pilot project provided to female prisoners by Legal Aid. There are also strategies to prevent civil law matters from getting out of hand (e.g. the automatic notification to Centrelink when people are received into prison which stops inmates receiving welfare payments for which they are no longer eligible). However, the general impression from the data collected for the current project was that civil matters had less priority in terms of resources.
    You get a lot asking about civil and compensation but we don't actually do a lot with civil because sometimes the civil stuff is far better for them to pursue on the outside …And the other thing is or pursue it at a jail of classification because for us a civil matters isn't necessarily … we're not going to deem it a priority necessarily … Because this is still a crisis remand jail and we will always give preference to the crisis based issues.
— Welfare officer, urban prison

A second barrier in terms of resources to help with the resolution of civil matters is the lack of support for prisoners to participate in the legal processes designed to resolve the matters. For example, while inmates are routinely taken to court for their criminal hearings, hearings for civil or family matters are not so readily accessible from prison:
    I've never known them to get out to go to a family court hearing. It's more a question of adjournment or representation in their absence …

    [WHY IS THAT? IS THAT TECHNICALLY OK?]

    Well, because, I would suspect that if you looked at it, that it's the inmate has to pay the cost of the, of the department's transfer to that court. … So if there's any personal injury, it has to come out of the pocket of the inmate.

— Legal Aid solicitor
    I had an agreement with my ex-wife to pay her X amount of dollars per week and then I went into jail. … Now I got on the phone to Child Support [the CSA] from jail…and they said I would have to go back to court and change it. And I couldn't do that because I am in jail…
— Malcolm, male parolee, 35+ years, non-Aboriginal, urban area

As one interviewee explained, this may effectively translate to a blocking of access to justice as time limits expire and the chances of finding supporting evidence dwindle:
    One of the things that occurs, of course, is that if you are an inmate and you've got further charges, Corrective Services will ferry you all around the State to appear in court, where possible. There isn't any such service available that I know of for people to attend court in civil matters. And the result is that they can't protect property. They can't be heard in a court environment and the, as you'd know, there's lot of situations where there are time limits on taking an action and … if a matter is heard way down the track, you might not be able to get access to witnesses or information, or other things to support their claim. So functionally it, I see that it really does restrict their access to justice. In particular, I see that it restricts their access to justice in various consumer forums [such as the jurisdiction of the Consumer, Trader and Tenancy Tribunal] … In all of those areas a person who is not in custody can go, for a very small fee, have a matter heard. They don't need legal representation and the matter is, you know, resolved in an expeditious way. If you're in custody that's not available to you.
— Financial counsellor

In Chapter 6 we described how inmates tended to focus on their criminal matters over their civil matters. It would seem that the systemic environment also provides less opportunity for prisoners to address their civil matters, particularly in terms of access to legal advice and participation in the legal processes.

DCS staff

DCS custodial and welfare staff play a central role in assisting inmates when they have a legal problem. For a detailed discussion concerning this role, see Chapter 8. As well as taking on case management roles with inmates, custodial officers carry out a variety of administrative functions, all of which facilitate inmates' access to legal assistance. These functions include processing mail, escorting inmates to legal interviews, providing inmates with forms and information about appealing, and writing their names down in appointment books for legal interviews.

Each government-run prison has one or more welfare officers who provide assistance with personal issues, such as child access, housing, debt management and advocacy on behalf of the inmate. Welfare officers also perform a range of other tasks including assisting inmates with forms, explaining documents and processes, facilitating telephone calls with lawyers and liaising between the inmate and government departments on matters associated with their legal issues.

However, interviews for this study suggested that the capacity of officers to perform these tasks can be undermined by available resources not always matching the high demand. Our analysis identified a number of features of staff roles that affected inmates' pursuit of legal assistance, primarily concerning staff shortages for both custodial and welfare staff.

Custodial staff shortages

Staff shortages were an issue raised by prisoners and stakeholders when identifying the barriers for prisoners to access assistance with their legal problems. There appeared to be two major implications of DCS staff shortages for inmates needing assistance with legal problems: increased lockdowns and the reallocation of staff.

Lockdown

Lockdowns (including locking inmates in their cells overnight) are part of the daily routine of NSW correctional centres. However, if staff shortages are sufficiently severe, the prison may be put into lockdown (over and above regular lockdowns). Inmates are then restricted in their movement around the prison and are effectively prohibited from leaving their cells until the lockdown ceases.

    [A FEW PEOPLE MENTIONED THE RATE OF LOCK DOWN– THAT THEY SEEMED QUITE FREQUENT. WOULD YOU AGREE WITH THAT?]

    Yes. And that's due to staff shortages. ... we might lock down if we've got a hospital escort. Like an inmate has to go out for emergency. So they might try and take officers from somewhere, so they'll have to lock down a Unit to take officers from there, to take someone to hospital.

— Custodial staff member, urban prison

Although correctional centres are encouraged to allow legal representatives access to their clients during lockdown, legal visits are only allowed on a limited basis and are at the discretion of the General Manager (NSW DCS, 2006c, s. 15.11.6).

In 2004 DCS introduced a program of correctional workplace reform called The Way Forward which aimed 'to achieve safe and effective correctional centre management and substantially improve operational cost efficiency' (NSW DCS, 2004b, p. 2; also NSW DCS, 2004c). Changes to staffing arrangements were a key aspect of this policy. There was some suggestion in our interviews that aspects of the new staffing arrangements reduced visiting hours, for legal visits:

    OV1: There was a lot recently because The Way Forward changed the visiting procedure in this jail. Visits used to be an hour and a half. They went straight through the day.

    OV2: Legal visits went through till 6 pm I think.

    OV1: Yeah. Now when The Way Forward was introduced, they suddenly locked the prisoners down at lunchtime.

— Official Visitors, urban prison

Accordingly, lockdown may occur because there may be insufficient staff to cover all of the various operational tasks of a prison. This may impact on inmates meeting their legal needs as they cannot attend the prison library, make telephone calls, and, at times, not be able to meet with their legal representatives during lockdown.

Reallocation of staff

Staff shortages also appeared to result in prisons having to reallocate staff from one task to another. In the main, officers were 'stripped' from certain administrative positions to fill key security positions when staff shortages occurred. In our study, examples were given of positions being stripped from functions such as the mail room, officers who place numbers on prisoners' phone cards and library escorts, which in turn affected inmates' access to justice. For example, the stripping of the mail sorting position delayed the delivery of mail to inmates, including legal correspondence:

    We don't get mail regularly at all. Very, here, there and everywhere. I've had letters that have taken over three weeks to get delivered … I know it's not the mail officer's fault, but as soon as they need somebody else she's the one that they take away, and so the mail doesn't get done … I know two other [inmates whose] briefs didn't come till after they went to court.
— Jane, female remandee, minimum security, 35+ years, non-Aboriginal, urban prison

In this interviewee's experience, the practice of stripping positions had resulted in some inmates not receiving essential documents before going to court.

Custodial officers are also responsible for confirming lawyers' telephone numbers, in order that inmates can call their solicitors.47 This second example describes the impact of officers being reallocated from the position, which processes numbers onto phone cards:

    When the form goes in, it goes to the deps clerk. The deps clerk is the position that actually makes the calls out to the solicitors … Now, from a practical perspective in a jail, the deps clerk position is a position that can be stripped when they are short of staff. So if they are short of staff, it could be a day, two days, three days and that position is stripped and there is nobody in there. So that causes a massive backlog with phone numbers being put on.
— DCS welfare officer, urban prison

During the period whilst inmates are waiting for their telephone contacts to be approved, they cannot directly telephone their lawyer. Rather, they have to seek an appointment with the welfare officer to make a call from their office, and, as is argued below and in Chapter 8, appointments with welfare officers are also often delayed because they are a resource that is also in great demand.

When there was a shortage of staff, positions that enable the prison library to be open may similarly be reallocated:

    In order for the library to be open, you have to have an officer present. That position is what's called a strippable position. So that means if there is sick leave somewhere, they don't get an officer. So the library is never open more than five hours a day and often it can be one or two days a week. So a lot of the inmates never actually physically get to the library.
— DCS library staff

Legal interviews themselves may also be forgone because an officer is stripped from escort duties for higher security inmates:
    People get legal visits but because they've got to be specially kitted out, there's got to be enough officers to take them. And if there are not enough officers, the legal visit doesn't happen.
— Official Visitor, urban prison

Our interviews clearly show that inmates often depend upon the assistance of custodial officers to arrange or facilitate their access to legal information or assistance. However, as argued above, staff shortages in one area of operations can entail staff being reallocated away from administrative positions that underpin inmates' access to legal assistance and/or information. The following quote illustrates how the prioritisation in resourcing may occur:
    If Legal Aid wishes to see a remand inmate, we'd escort that inmate up and generally it's not straight away … If the officer's flat out with about five or six other inmates, they prioritise. And escorting an inmate up to Education is not a high priority.

    [SO WHAT MIGHT THAT MEAN? THAT THEY MISS OUT ON THEIR APPOINTMENT?]

    It's a possibility. If there are five officers in a unit; if two out of that, or even one is out of that unit doing something else, another officer can't leave that unit and leave three staff in there by themselves. That's not allowed. That's dangerous. So they'll have to wait until this other officer comes back, and who knows what they're doing or how long they're going to be.

— Custodial officer, rural prison

Consequently, in a contest for staff resources, there is a privileging of certain types of tasks, whereby those relating to legal assistance are relegated as less important than those relating to safety and security. Consequently, in the context of staff shortages, addressing inmates' legal needs may be postponed or remain unmet.

Shortage of welfare officers

As will be described in Chapter 8, welfare staff provides a key link to government and legal services. However, our research has suggested that, in most jails, the number of welfare officers available does not meet the demand for their services. Unfortunately, it is not possible to formally examine the ratio of welfare staff to inmates as annual statistics are given only for all operational staff, including court correctional officers. However, as the data given here and in Chapter 8 suggest, welfare officers are often extremely busy and consequently inmates may not be able to access them in a timely fashion. The challenge this presents was described by DCS staff and inmates:

    As soon as welfare comes in that's it; they all hoard over and scream, and yell, 'I need to see you! I need to see you!' It's just ridiculous [that] we're a one-position jail. That's where my gripe is. We need to have more [welfare officers] because we can't meet the demands.
— Non-custodial staff member, urban prison
    Even speaking to Welfare is a nightmare. Three weeks and I still haven't seen them … it is very hard. They're run off their feet.
— Jane, female remandee, minimum security, 35+ years, non-Aboriginal, urban prison

Given the pivotal role that welfare officers play in linking inmates with people and services to help address their legal needs (as detailed in Chapter 8), their scarcity can have significant consequences for inmates seeking assistance:
    If you're with Legal Aid, it's difficult to get access straight away to Legal Aid, you have to wait … I mean, you've got to go to Welfare and wait two weeks, up to two weeks to get a phone call to Legal Aid.
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison
    So then you've got to put your name on the Welfare list, wait a week or two until the lady or the man of Welfare have time to see you, and then they'll ring Legal Aid and you start from there. So … you're two weeks behind already.
— Neal, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

As the role of custodial officers has been broadened under The Way Forward policy to include more responsibility for the care and case management of offenders, the possible implications of the dual role of custodial officers in terms of facilitating inmates' access to justice are further considered in Chapters 8 and 9.

Consequences

It appears from the data given above, when a shortage of custodial staff occurs, that positions which facilitate access to legal assistance and support are among the first to be compromised. Specifically, tasks that may impact on the pathways inmates use to address their legal needs, such as processing lawyers' numbers onto phone cards, or processing mail (including legal mail) may be stripped of their human resources and reallocated to security functions. When staff shortages become critical, the whole centre may be locked down, further restricting the capacity of inmates to engage with the outside world. In addition, our interviews suggested that, in many jails, welfare officers are in short supply and consequently challenged in their capacity to assist all their inmate clients.

DCS facilities

There is a range of facilities in correctional centres that inmates can use to access legal information and advice. These include electronic equipment such as computers and video players, the library and the prison telephone system. Our interviewees suggested that significant shortages of these facilities impacts on inmates' access to justice.

Computers, electronic equipment and libraries

Prisons have education departments that in addition to running courses for inmates also have computers (but no internet connection) available for use by prisoners for educational and legal information purposes. For example, inmates can use computers in the Education unit to read briefs which are sent to them on CD-ROM. However, interviews for this study suggest that there is a significant shortage of working computers in these Education units.

    And if you can get in there … you are in there with another 30 people. You can't all use the computer at the same time
— Spokesperson, Justice Action

As a result, inmates reported being unable to access their briefs on CD-ROM, hindering their preparation for their case. It was also suggested that shortages in available computers affected the professional use of computers by welfare and library staff, particularly when they agreed to allow inmates to use their computers.
    You know how they get their briefs on CD-ROMs now? … There is a real problem finding a computer that they can read it on … and X [jail] … is bereft of computers ... And the librarian out there… said that the Education people are using her computer for inmates to read their briefs on. And she didn't really want them to do that because she can't work.
— DCS library staff

In another example of how processes to assist inmates can be compromised by limited resources, a DCS staff member reported that new inmates in one jail were not able to watch an induction video48 because the video recorder had been broken for four months.

Interviews with inmates and DCS workers from different prisons also suggested that the legal materials in many of the prison libraries were often very limited, outdated, or not available because they have gone missing:49

    Legal, well they have access to the library here … I went down the other day and all of the books are outdated, you know, should be in a museum.
— Custodial officer, urban prison
    There's nothing at this library here, but there's no law books or anything here at this library, what law books they have got are, they, they don't cover … criminal, that sort of stuff.
— Jack, male remandee, age unknown, non-Aboriginal, urban prison

The formal provision of information resources in the form of library materials were seen to be, at the time our data were collected, inadequate at some prisons. However, since our interviews were completed, DCS has funded LIAC (the State Library of NSW's Legal Information Access Centre) to expand its coverage to include all correctional centre libraries in NSW. This means that each prison should now have a complete set of LIAC materials which consist of plain language legal information on a wide range of criminal, civil and family law issues.50 Further, inmate clerks were being trained to assist people to find legal information, although they do not provide legal advice.

Internet access

Prisons are designed to be keep inmates largely separated from the outside world. Walls, fences and surveillance provide the physical barriers while bans on mobile phones and access to the internet present another layer of security. The DCS standard operating procedures stipulate that computers used by inmates 'must not contain, be connected to, or have the facility to be connected to any internal or external communications device (i.e. modems, modem card or modem chip)' (NSW DCS, 2006c, s. 5.4.1.1(c)). In practice, this means that there is no internet connection to any computers within the parts of the jails accessible by inmates, including those computers used by welfare and education staff. Accordingly, neither inmates nor the DCS workers who may be assisting them to find legal information can access the web from within the jails:

    We don't have internet access in here, so I have to go outside for any of the searches for legal information.
— DCS library staff

Legal Aid solicitors (and other services) are allowed to bring laptops into prisons for instance, to playback electronic evidence to the client (PLS solicitor, personal communication) although they are not allowed to use these computers to access the internet from within prison. Lawyers reported the frustration of not being able to search for information online when they visit an inmate in prison:
    It's a real pain because you are getting inquiries a lot which you can only answer by going back to the office and looking up on Court Net, or looking up the Legal Aid database to find out what's going on. And then you have to get back to them to let them know what is going on. And often, the time frame is too short and they are going to court next week and they don't really have a clue.
— Legal Aid solicitor

Consequently, the internet, an important source of information in the general community, is an avenue that is closed to inmates on the grounds of security. This is not to judge the appropriateness or otherwise of such a form of regulation, but rather, to note how being in prison limits the pathways by which people can access legal information and help.

Telephones

The availability of telephones to maintain both social and legal connections is a key issue for inmates. Each correctional centre has a certain number of telephones for inmates available at set times throughout the day.51 Some inmates and workers reported that there were often such large numbers of inmates trying to access the telephones during those times that, as a result, it was difficult for them to make a call when they wanted or needed to:

    Because there's only one phone in each side, and they have to share it with … anywhere between 12 and 15 [people] in there. So it's a problem getting access to the phone.
— Custodial officer, urban prison

The issue of the number of telephones, however, must be looked at in the context of the procedures by which their use is governed. Although our interviewees talked of inmates needing to make a call outnumbering the telephones available, this issue may, at least in part, be an artefact of other systemic features, such as lockdown and prisoner classification. The impact of these features will be discussed in detail later in this chapter.

Courses

Another resource that may affect inmates' access to justice is the provision of educational courses and training within prisons. A few inmates from a rural prison reported missing out on the opportunity to undertake certain courses due to limited places:

    I'm always on their backs to do these programs to address their offending behaviour and they'll say, 'I was up there. I got knocked back because of the amount of time I've got to do.' And they get frustrated about it. But with 750 blokes, if they've all got to get up and do that similar program, it may only be one counsellor or two counsellors doing the program in the one room.
— Custodial officer, rural prison

This in turn impacted upon inmates' chances of being released on parole. As stated in Chapter 4, the SPA (State Parole Authority of NSW) takes into account whether there is 'sufficient reason' that the prisoner will be able to adapt to community life (Barry, 2004, p. 190). One way of demonstrating a capacity for going back into the community may be the completion of certain courses, such as anger management. Accordingly, when inmates cannot be accommodated on a course, their chances of being granted parole may be compromised:
    I even rang the Ombudsman there and said, look, I'm just scared because I'm not going to get parole because I haven't done these courses. They rang the jail and they said there's a six to 12 month waiting list to get into some of the courses, and there's no priority system.
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Completing a course that may improve inmates' chances of being granted parole may also be affected by transfers between prisons. An inmate may not be able to commence or continue a course, as not all courses are available at all prisons. Further, there may not even be an available place even if the relevant course is offered:
    The big downside is that they can get dragged off programs. And if the parole officer said six months ago, 'You do this anger management program and this will help you get your parole. This is what you need to show to the Board.' And then it doesn't start for three months, so they're waiting around for it to get on. They get on and then a week later they get moved for whatever reason, well then that's unfortunate.
— Probation and parole unit leader, rural area

Other consequences resulting from transfers within the prison system are discussed in more detail elsewhere in this chapter.

Summary

In addition to the various practical barriers to inmates accessing legal assistance which arise from the nature of imprisonment, formal provision of systemic resources that falls short of the demand placed upon them can further disrupt access to justice for inmates. It is apparent from the data reported here that there are significant resource constraints on both DCS and some public legal services, which in turn affect the capacity of inmates to access legal information and legal assistance from within prison.

Our interviewees identified staffing levels and facilities as systemic resources where demand outstripped supply. For example, the capacity of welfare officers is stretched by the sheer volume and complex needs of their inmate clients. Similarly, the availability of custodial officers to undertake functions which facilitate inmates' access to justice (e.g. to provide escorts to the library or legal visits, to ensure mail is delivered or that telephone numbers are made accessible to inmates) is sensitive to staff shortages: when staff numbers are low, security functions take precedence and consequently these tasks may be delayed or abandoned.

Our interviewees also indicated that the demand for Legal Aid and ALS services outstripped supply, resulting in less time being available for legal advice to be given to individual inmates both at prison and at court. In some circumstances, inmates were not always able to see a lawyer before they went to court because of such shortages. Further, the demand on the resources of such legal services undermined the perception amongst inmates about the quality and accessibility of these services.

In terms of facilities, a shortage of computers to read CD-ROMs and outdated library facilities at some correctional centres can prevent inmates from accessing legal information. Further, inmates in one particular correctional centre felt that limited places in certain education courses were preventing them from obtaining parole. The lack of access to the internet and a perceived shortage of telephones were also felt to compromise inmates' ability to marshal information for their legal matters and communicate effectively with their legal advisers (inter alia). Consequently, shortfalls in resources that support prison inmates in addressing their legal matters within the broader systemic environment may act as a hindrance to gaining legal information and assistance, and effectively participating in the legal process.

Systemic processes

The discussion above draws attention to aspects of the broader systemic environment where there is an apparent shortfall in resources. This shortfall consequently affects prisoners' capacity to address their legal needs. Our analysis also suggests that the processes that operate within the systemic environment also shape the success or otherwise of inmates' access to justice. The processes most commonly mentioned by interviewees in this study are grouped under the following headings:

  • telephone use
  • classification, segregation and access to legal help
  • movement of inmates
  • lockdowns.

Telephone use

In the previous section, the issue of the availability of telephones was raised. It would seem that in the opinion of some interviewees, availability was a matter of numbers — too few telephones for too many inmates. Whether it is only, partly or even at all, sheer physical numbers of telephones should be weighed against how the telephones that are there are accessed. Interviewees for this study highlighted a number of other aspects of the prison telephone system and its use that impact on their role in inmates' pursuit of assistance with their legal problems. These were:

  • time restrictions and privacy
  • direct telephone contact with lawyers
  • telephone contact with government and other agencies

Time restrictions and privacy

Time restrictions operate on the length of calls that can be made by inmates. Male inmates receive 10 minutes for legal telephone calls and six minutes for personal telephone calls and female inmates receive 15 minutes for legal telephone calls and ten minutes for personal calls. The purpose of placing time restrictions is to make the telephone system more accessible to all inmates:

    For instance, in the old system an inmate could make a hundred calls a day. In this one, it doesn't happen … I think it's much better too because six foot six, wanted for manslaughter, wants to sit on the phone for three hours and the five foot four in for a driving charge is not going to get near is he? [Now] the system cuts him off, he walks away. He doesn't take it out on the other guy. I think it's better. It's fairer.
— Custodial manager, rural prison

However, inmate interviewees for this study described feeling that they did not have sufficient time to discuss often complex and serious matters over the telephone with their lawyers. Inmates reported the frustration of having to 'go to the back of the line' once their call time had expired, and wait until all the other inmates in the line had used the telephone before they could complete their call. For example, Luke said:
    It's a problem though because it's a six minute phone call [sic] and it's timed, computerised automatically and it can take a minute or a minute and a half sometimes to two minutes or three minutes before you actually get put through to your solicitor. And then you've only got three minutes and then you've got to ring back and ring back again to get say a twenty minute conversation in, and that can be frustrating.
— Luke, male remandee, medium security, 25–34 years, Aboriginal, urban prison

Concerns were also raised regarding the privacy of legal discussions made on the telephones located in the prison yard or the pods (wings):
    Because the phone's in the middle of the pod. There's 38 guys running around. It's noisy. There's no confidentiality. And look I mean I want to talk to a lawyer about a car I sold. No problem. I want to talk to a lawyer about the three young girls I molested. You're not going to have that conversation.
— Custodial manager, rural prison
    There is a special section on their phone [card] where they put their solicitor's numbers because they actually get a longer call. But it is still often not a long enough call to talk about the in-depth legal issues, not to mention you are talking about your in-depth legal issues with every other Tom, Dick and Harry lined up behind you waiting, pissed off because you are taking too long on the telephone — its not conducive to a good conversation.
— DCS welfare officers, urban prison

A final issue regarding the system governing the use of telephones was their practical availability. The following quote clearly demonstrates a conflict between the routines that some inmates must follow and the access hours for the telephones making them a scarce commodity:
    To contact a legal practitioner can be difficult because our phones are only on for certain hours. Now, the phones go on at eight-thirty in the morning, we leave for work at a quarter to nine. The phones stay on all day, but they're in the accommodation units, so therefore we have no access to the phone until two o' clock in the afternoon, and then we'll have twenty (people) all wanting to use the phone in that space of one hour.
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Direct telephone contact with lawyers

Another challenge for inmates seeking to consult with their lawyers by telephone raised in our study was that an inmate may have to go through switchboards, receptionists or automated telephone systems before being put onto the person who can assist them. This further curtails the already limited time available to inmates:

    This is why I don't worry about on my phone 'cause then you've got to go through their secretary and you know, it's only a ten minute call.
— Jack, male remandee, medium security, age unknown, non-Aboriginal, urban prison
    I was on hold [to Legal Aid] for probably forty-five minutes. And I mean, if the inmates are trying to ring from down in the unit there's a ten minute limit on their phone calls, the phone cuts out after ten minutes whether you're on hold or you're talking to somebody or whatever. So it's, it's difficult.
— Throughcare officer, rural prison

The above quotes highlight the potential problems inmates might have in utilising telephone based legal services, a significant issue in light of the recent initiative in NSW prisons to have the LawAccess telephone number put on prisoners' phone cards. That is, even though inmates are able to telephone LawAccess from prison, the advice they can receive may be limited by the restricted time they can speak for. Recognising this potential problem, the LawAccess representatives interviewed for this study indicated that their staff are trained to directly transfer inmate calls to a solicitor:
    Because we do treat prisoners as priority clients, any time a prisoner is on the phone we will try and facilitate an immediate transfer to one of the lawyers, so that we can assist them directly, rather than have to worry about call-backs. Not always possible. But we're as flexible as possible because we recognise the special needs and the official difficulties that they're under.
— LawAccess

In the absence of being able to directly contact lawyers, inmates have the option of leaving a message. However, as inmates can make outbound calls but cannot receive calls, a lawyer is unable to call them back in prison:
    I never really call her on the phone 'cause she's normally not there anyway, and if I leave a message she can't call me back anyway.
— Karla, female remandee, minimum security, 25–34 years, NESB, urban prison

These issues are consistent with difficulties raised regarding Queensland jails (de Simone & d'Aquino, 2004, pp. 5, 64). Apparently, there is some scope for calls to be returned when a prior arrangement is made through the welfare officer. However, even prison staff may face difficulties in contacting lawyers on behalf of inmates, for example, when confirmation is sought for placing a lawyer's number on an inmate's phone card:
    We've got to catch them when they're actually in the office so they can give us their verbal, 'Yes, it's okay for that to happen' … The form can sit there for five or six days and we've tried to ring the number four or five times a day, and they just don't answer. Or the secretary says, 'He's not here.'
— Custodial officer, rural prison

As a result, the organisation of both prison and legal advisers' telephone systems may not always fit well with the needs and/or circumstances of prison inmates.

Telephone contact with government and other agencies

Telephone contact with government departments also brought with it, according to our interviews, its own set of issues. Our data indicated that inmates had complications telephoning departments such as Centrelink, the DOH, DIAC and SDRO to address outstanding legal problems. To begin with, some inmates reported difficulties putting certain departmental numbers on their phone cards:

    You've got to actually put the number on your phone [card] and they weren't willing to put the Immigration number onto my phone.
— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area

Further, with limited numbers of contacts being permitted on phone cards, some inmates were unwilling to forgo a place on their card for an organisation they may only speak to once. Similar attitudes were reported in a UK study of remand prisoners, who even considered putting lawyers on their phone cards as 'wasteful' (Brookman et al., 2001, p. 198).

Interviewees also highlighted how the time restrictions on telephone use in prisons clashed with the 'waiting on hold' call centre system adopted by government departments:

    If you're in remand, there's about 500 people waiting for a five minute phone call on a queue that's five hours long; and then you can never get through to Centrelink in that five minutes anyway. So, even if you wanted to ring Centrelink independently it was near impossible to do.
— Caseworkers, Welfare Rights Centre

Difficulties accessing these agencies can result in inmates relying on third parties to assist them to resolve these issues, which itself can conflict with the privacy policies of departments:
    I owed some money … [for] court costs … I think it was $80. Fine, I can't get hold of youse, ex-wife can you? … Rings up, no fuck off … Two weeks later I get another letter. You now owe $95 … Because you haven't contacted us and we've whacked on a little bit extra … Because it's not me ringing, it's the ex-wife, they don't care. 'Oh well, we've got to speak to him. We're not speaking to you.' And you know what I mean? How can you get anywhere?
— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area Strategies to improve telephone access

Interviewees in our study suggested a number of strategies that may enhance telephone access to solicitors. One suggestion was to make direct contact with a solicitor via a mobile phone:
    He works in courts all day. So he has his mobile with him. So he'd rather me ring him directly and he's able to leave a message and he'd get that message back.
— Penny, female remandee on protection, 25–34 years, non-Aboriginal, urban prison
    He goes beyond his job … they have a call centre but I speak to him directly so it's him on his job, he's at home, he's knocked off or whatever.
— Terry, male parolee, <25 years, Aboriginal, urban area

However, due to the higher call costs of ringing a mobile phone, convicted prisoners who have to pay their own legal calls, may not be able to afford this option.

A number of lawyers we interviewed said that they took account of the limited time inmates had to speak with them, by taking their calls as directly as possible and by getting 'straight to the point' (Community Referral Scheme, Law Society; LawAccess). To facilitate a quicker response to prisoners' calls, all telephone calls made by prison inmates should be announced to the recipient by the prison telephone system before the prisoner is put through. Such a facility cues the legal or other service to the fact that the caller is an inmate and consequently has a very limited amount of time to spend on the call.

The capacity for lawyers to routinely receive messages and return calls to their clients in prison was raised by both stakeholders and inmates as a potential strategy to increase inmate access to legal advice:

    I mean the other thing that would help us [is] if we could have some sort of system or process in place in prisons for us to call prisoners back. That would be really helpful, because it's not always guaranteed that there will be a lawyer off the phone, or in, or available, to talk to them.
— LawAccess
    It'd be good if there was like a number that you could ring up and say, 'Listen, can you tell [lawyer], I'm his client, I need him to come to Sydney tomorrow, I've [got] court [in] two days.' Whatever, if I can't get a hold of [lawyer] myself. It'd be good, you'd feel, you'd feel fantastic and at least you can get a, you know that the message has got through.
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

From our interviews, it is clear that telephones are a key link between prisoners and legal assistance located outside of jail. The restrictions, however, accompanying the prison telephone system may conflict with the types of telephone based services currently offered, resulting in very real barriers to inmates using these services. Communication with lawyers and other services by telephone seems to pivot on a number of issues. For one thing, time limits imposed on calls from inmates often do not allow sufficient opportunity for inmates to convey the details of their problem or for the service provider to give advice. This situation may be further exacerbated by the routing of calls through a receptionist, a call centre or an automated system. Together with the lack of privacy to make a telephone call, the outcome may be that the legal problem may go unresolved.

Classification, segregation and access to legal help

The primary purpose of prisoner classification is to maintain the security of the prison (Crimes (Administration of Sentences)(Correctional Centre Routine) Regulation 1995 (NSW), clause 10). An inmate's classification reflects their risk of escape, whether they are a danger to other inmates and staff or whether they are at risk of harm from other inmates. Accordingly, consistent with their higher security rating, medium and maximum security inmates have greater restrictions on their movement within correctional centres compared with inmates classified as minimum security. Inmates and DCS workers in this study provided examples of how these restrictions can affect access to justice on a day-to-day basis. In maximum security correctional centres, inmates have to be escorted by custodial officers when they move around the prison grounds and are locked in their cells for longer periods during the day. As one inmate noted:

    Like X [jail] was the worst, because you're locked in from three o'clock in the afternoon, you don't get out until nine [am]. So, you've got six hours and you're locked in for three hours over lunch, you know what I mean?
— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area

Restrictions on movement associated with classification makes it harder for maximum security inmates to access information from the library, get legal advice via the telephone and obtain assistance from welfare:
    Bigger charges see an inmate almost isolated for a said period of time … Not from other inmates, but certainly from the liberty of being able to walk over to the welfare workers.
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Other categories of inmates, who face restrictions on their movement within prison, include inmates who are on protection, or inmates who have been segregated from the main population of the prison. Because segregated inmates are prohibited from being in contact with other inmates, they reside in their cells for the majority of the day. This may make access to legal assistance at the very least difficult or, according to one mate, non-existent:
    Well, just before I go to the second trial … the prison system puts me in a segregation area in the system that isolates you from the rest of the world. And they kept me there for three months … I went to trial from there without being able to see my lawyers, without being able to call them, write to them, anything like that.
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

Under 'Segregated custody procedures' in the NSW DCS Operations Procedures Manual, prison officials, in addition to allowing visits to segregated inmates, are supposed to:
    … ensure that inmates, who are in segregated custody, a safe cell or otherwise restricted in terms of telephone usage, are to be made aware that they are permitted to contact the office of the Ombudsman, the Independent Commission Against Corruption (ICAC), and the Legal Aid Commission and are to be given appropriate access to a telephone should they so request. (NSW DCS, 2006c, ss. 14.4.1.14 and 14.4.14.1)

A prison chaplain and several welfare officers within prisons indicated that they accessed inmates on higher classifications or inmates who were on protection or segregation by actually visiting the inmate in their cell or wing:
    … I go down there a bit too, and then we have another chaplain that comes in on a Friday and we try and leave him with X [a protection wing]. But we'd be in and out there during the week.
— Chaplain, correctional centre

However, one welfare officer described some of the difficulties they had experienced in accessing 'high risk' inmates and inmates on segregation:
    I've got to go down to X [wing] … I can't get any inmate; I can't ask them to get an inmate out because these are extreme risk … Then there's the ones that are [in] strict protection; they can't play with the others … if they are on segro nobody can come out. You have to wait until that person's been seen by that one person. You might have four of us down there trying to see people all at once and it can't happen. I can be down there for two hours and see one inmate.
— Non-custodial staff member, urban prison

Inmates identified as 'at risk' may be held in protective custody and separated from the main population for up to 23 hours a day, and consequently, their ability to access legal and other assistance may be further limited:
    I had to go to protection so it was very limited, the [legal] information that I was able to access.

    [WHY IS IT LIMITED IN PROTECTION?]

    Because … you didn't have access to a proper library or things like this.

— Carlos, male sentenced prisoner on protection, 35+ years, NESB, rural prison

One stakeholder argued that inmates with intellectual disabilities may be disproportionately affected because of the tendency to place them in protection for their own safety:
    … the entire time they're on remand they're on protection, which makes it very difficult for anything to happen. It keeps them safe but that's about it … they just have less access to anybody on protection. They are on different levels and so they just have less opportunity and they have less contact with officers who might potentially assist them.
— Worker, CJSN

Accordingly, whilst categories of classification (including protection and segregation orders) maintain security within prison, they may further restrict the access of affected inmates to legal information, legal advice and assistance with legal problems. In addition to classification, the phase of incarceration which the inmate is in may also affect their degree of isolation from assistance with their legal problems.

Remand: post-arrest pre-reception

Two features define the early period of remand. The first is the fact that all remandees have criminal matters pending along with often acute civil issues relating to their sudden incarceration, including family law issues, particularly the placement of and access to children. The second is that, generally speaking, new remandees face more restrictions on their liberties than other prisoners, and that their access to legal help is correspondingly reduced. The interplay of these two factors and their consequences for access to justice are discussed below.

As noted in Chapter 5, when a person is first arrested, they may be detained in, and moved between, the cells at a police station, the cells at a police/court cell complex staffed by DCS (such as Surry Hills or Parramatta), and in the holding cells at court. A number of interviewees reported that inmates found it particularly difficult to contact a lawyer by telephone from the police or court cells, prior to going to court. Difficulties associated with contacting a lawyer at this stage of incarceration were stressed as a key concern to a number of inmates. Having consulted with other inmates prior to her interview with the research team, Noeline, a longer term inmate said:

    … I was given the sense of urgency that this is a problem within [court complexes]. Of being picked up by the police, not being able to ring a lawyer from the police station, being taken to court, the opportunity of [a] bail hearing, and the anxiety of not having a legal representative there. Hoping that someone else in the court cells' lawyer will adjourn your matter for you, so you're not totally unrepresented in court.
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Indeed, whilst placed in a police or court cell, prisoners may not use the telephone except under the following circumstances: to assist the officer in organising sureties for bail; for crisis or welfare purposes; and, for inmates who have been held in the complex for a prolonged period of time (NSWDCS, 2006c, s. 3.2.1.7). Further, even if inmates are granted access to a telephone for legal advice, any advice may be limited by a lack of privacy in the police cells. For instance, LawAccess commented that when they speak to someone in police custody, they do not ask for too many details from the caller, because of concern that they may be overheard by a police officer who is close by.

Compounding these issues are the large numbers of inmates being held in police cells, whilst they await space in the remand centres. According to a DCS manager responsible for reception screening and induction at one prison, offenders should not be kept in court or police cells for more than 72 hours. However, it appears that, due to increasing prison population and corresponding overcrowding in the prison system generally (see the data provided in Chapter 2), offenders are staying in police cells for much longer periods beyond this limit:

    Here they're supposed to be taken to a correctional centre or they shouldn't be in a cell location for more than 72 hours. That's not happening. That is unequivocally not happening. It can happen some of the time, but more often than not, by the time people are in Surry Hills they may have been at Campbelltown cells for a few days before that, and maybe Penrith cells before that, and so you have this situation now of almost a mobile transit jail population waiting for a bed to become available in the main system in the metropolitan area, either at Parklea or MRRC.
— Non-custodial staff manager, urban prison

Consequently, inmates may be held for prolonged periods in conditions where they are less likely to be able to access legal assistance by telephone or in person at a critical time in their matter:
    I don't know why there's not a Legal Aid person there whilst you're being arrested. … You don't get a chance to have legal advice before you're interviewed by the police.
— Chris, male ex-prisoner, 35+ years, Aboriginal, urban area

The concerns raised by our interviewees about access to justice in the cells also echo those raised by the Victorian Ombudsman in a 2006 review of the conditions of police custody in Victoria. The Ombudsman reported concerns about limited access to visits and telephones, inconsistencies between watch houses in regard to prisoner access and communication, lack of privacy for legal and other visits, overcrowding and the length of time people were staying in police custody (Ombudsman Victoria and Office of Police Integrity, 2006, p. 8).

Remand: reception

Inmates to be held on remand are transported to a correctional centre with a remand facility and detained in the reception unit of the prison until they are classified. A major task for DCS at this early stage of incarceration is to undertake a risk assessment of new inmates, particularly in relation to their mental and physical health. Inmates are interviewed by a nurse to ascertain any health needs and by Inmate Development Services staff to ascertain any immediate crisis. New inmates are kept separately from the rest of the prison population until they sit before the case management team, which determines their classification. Interviewees for this study suggested that this isolation from the rest of the prison effectively prevents inmates from accessing legal information and legal advice. One inmate described the experience of first arriving at a remand centre:

    You will find more often than not that when you are first brought into custody that you are, not so much segregated, but have limited opportunity to see support staff. Because you're locked down so often under the duty of care, you know, we must make sure that there's no risk intervention required here, so we'll check this person out for a period of two or three weeks. And those two or three weeks or one week can be crucial to a person's peace of mind, [and inmates] facilitating legal representation.
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Another example was provided by an inmate who had been held on remand in a regional correctional centre:
    You're locked in the pod … You wouldn't get out while you're on remand. And that's where the other prisons have got more access to legal things … we couldn't get to the library, we couldn't get to see anyone in that way.
— Barney, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Our interviewees also suggested that remandees are frequently moved between police cells and correctional centres during the early stages of their incarceration. This reportedly makes it difficult for them to access legal assistance from outside a prison (but within custody) whilst they are being transferred from one centre to another:
    … moving around everywhere … the other most annoying thing about it is the fact that they don't let you settle. And I don't know whether that's to keep you off guard, but … I came into X [regional police cells], got held there over night, then shipped out to [city police cells] …kept in [those] police cells for two days, then shipped to [a jail], kept there for a day, sent back up to X [regional police cells] for my bail hearing, then shipped back to [a jail], then moved. Moved cells all the time, moved around to different pods, and then finally come out here, and then moved around again and again. And in amongst all of that, my people outside are having a hard time keeping up with where I am … it's really downgrading.
— Justin, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

A detailed discussion of the impact of movement on inmates' capacity to access legal assistance is discussed in further detail in the following section.

Finally, the difficulties raised above are not confined with inmates trying to deal with their criminal matter. As discussed in Chapter 4, the sudden interruption of incarceration can generate specific civil and family law issues, particularly in relation to child custody, housing and employment/business matters. For example, one remandee reported the difficulties he had in contacting his workplace when he was arrested to inform them he was in prison:

    I haven't been able to organise anything … I haven't even been able to speak to my work because of where I am at the moment … I was running an $150 000 a year company and I've probably lost that now, due to the fact that this has happened.
— Justin, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

At this stage, inmates do not have phone cards and consequently have limited options in terms of telephone calls, as one welfare office at a remand centre notes:
    Usually what the intake screener will do is, a lot of them are happy with one free phone call at that time, which may be to mum. ... But it may be they need more. They may need one to wife or, or mother, they need one to their mate to move their car or get the dog out [of] the flat or, you know, whatever. … And he may need one to his boss to say 'Look, you know, sorry, the work car is by the side of the road, unfortunately the key's in here [jail].'
— Welfare officer, urban prison

These observations resonate with overseas research which noted that contact with lawyers is one of the most pressing needs of people on remand but also one of the areas most likely to be affected by incarceration (Brookman & Pierpiont, 2003; Scottish Executive, 2000, para. 4.1).

As inmates move into the main remand jails or wings, some of the initial difficulties they faced in accessing legal help improve. Once in the main population, inmates can receive visits from their lawyers, access welfare and education officers and, once set up, have use of their phone cards. However one practice that our interviewees suggest continues to affect inmates access to justice, is the frequent movement of inmates from jail to jail and wing to wing within the prison system.

Movement of inmates

In this study inmates were reported to be regularly moved around in the correctional system: within centres, from prison to prison, and between prisons and the police or court cells. It became apparent that the constant movement of inmates inevitably impacted on the provision of programs and services to inmates, whether it was legal help, education or health services. Indeed Justice Health reported that:

    In addition, inmates rarely spend their entire sentence within the same correctional centre. There are approximately 250 000 movements between correctional centres, police cells and the court system annually, further interrupting continuity of healthcare provision (Justice Health, 2005, p. 5).

Inmates may be moved to another correctional centre for a range of purposes including: to attend court, funerals, medical appointments, police interviews, classification or for non-routine reasons, such as the closure of a centre, the need to increase the inmate population of a centre, a change to the security mix of the inmate population or to the overall limit of the inmate population, or any other reason specified by DCS (Barry, 2004, p. 901). Inmates may also be moved for security and inmate management purposes, for example, in order not to be able to associate with certain other inmates (e.g. members of their own or rival gangs). Inmates can be transferred against their wishes, and do not necessarily have any input as to where they are moved: that decision will depend on their classification and where beds are available (Barry, 2004, p. 901). Interviews for this study suggested that the process of moving an inmate from place to place impairs the capacity of inmates to keep in contact with their lawyers and to participate effectively in the criminal law processes. The following discussion centres on three main issues regarding inmate movement: transfers between prisons, transit from jail to court and the reduction of movement through the use of AVL.

Transfers between prisons


    There is so much movement these days … The way they manage a lot of conflict is basically moving people around all the time. So, how on earth are they supposed to be in a position where they can access proper legal advice when they are in transit pretty constantly?
— Legal Aid solicitor

Being moved from prison to prison not only makes it difficult for lawyers to locate and stay in contact with their clients, but means that in each new centre, the inmate must re-establish systems for staying in contact with the outside world. For example, as described in detail in Chapter 5, when an inmate comes to a correctional centre, custodial officers must validate their legal and personal telephone contact numbers before they put them on their phone card. As previously discussed, this process can be lengthy and may prolong the period in which inmates do not have access to the telephone, and in turn, their lawyer. Clearly, moving prisons means that this delay is even further exacerbated. As one welfare officer observed:
    But if they don't have any money or they're in transit, they're moving from jail to jail, access to those numbers becomes delayed. So for instance if an inmate's at the MRRC, gets classified to another centre and he has an ongoing legal issue, by the time he gets to another centre, it takes another few days to link up. And if he's got a pending court case coming up and he's quite anxious about it and wants to speak to somebody it becomes difficult.
— DCS welfare officer, urban prison

Movement from one prison to another can also slow down inmates receiving post, including letters from their lawyer or other correspondence relating to legal matters. This is illustrated by the following quote:
    And again, whilst you keep moving them their mail is slow because it comes to the centre where you were, then gets transferred to the centre where you're going, and if you get moved again it could then bounce on to somewhere else.
— DCS welfare officer, urban prison

The movement of prisoners around the system also reportedly makes it difficult for their solicitor to visit them in prison, especially as inmates often receive only short notice of a transfer:
    They're constantly moving around a lot of them. And that makes it hard for them to contact people. They might contact their legal representative [who says], 'Okay, I'm going to come out and visit you on Thursday.' And they may be moved on Wednesday.
— Custodial officer, urban prison

In some cases, inmates reported not seeing their lawyer in person until they arrived at court for a hearing because they had moved away from where their representative could visit them:
    Coming from the [South] coast, getting legal wizards is difficult at the best of times. Because it's a long way to travel and they're busy people and everything. So usually, if I'm appearing in court on the [South] coast, I don't get to see the solicitor until I'm actually at the court house.
— Langdon, male sentenced inmate, maximum security, 35+ years, Aboriginal, urban prison

A study conducted by the Scottish Executive (see Chapter 2) also reported that lawyers faced problems accessing clients in prison due to incorrect information about the location of prisoners who had been moved, and difficulties in getting to prisons in isolated areas (Scottish Executive, 2000, para. 4.4).

Finally, the movement of prisoners to remote locations adds to their expenses in contacting their legal advisers. Whilst remand inmates can make calls to private or Legal Aid solicitors at DCS's expense, convicted prisoners must pay for their own calls to private lawyers and to many of the service agencies and departments:

    When I was there it worked very good actually, but soon after I got moved to X [jail], where it was a little bit further away from [the] Sydney centre. Well it meant every time I talked to my lawyer, it was a little bit more expensive.
— Carlos, male sentenced prisoner on protection, 35+ years, NESB, rural prison

Given the discussion in the previous chapter about the financial difficulties commonly experienced by inmates, these circumstances may present a very real barrier for inmates in obtaining legal assistance (see Chapter 6).

Transit from prison to court

A second facet of inmate movement is the travel from jail to court. Inmates may need to attend court directly from their prison, or may be transported in a prison truck to the prison closest to the court they are going to so that they can attend court from there. Our interviewees spoke strongly about inmates' dislike for travelling conditions in the trucks:

    Because they wake, they wake you up 4.30 in the morning, put you in a cell 'til about 8.30, 9 o'clock and you go on, you get strip searched, and you go on a truck. After probably dropping off 50 other at every other court house you get to Downing Centre. And then you get to spend all day in those cells downstairs. You know by the end of the day, by the time you get back, you've done nothing all day but you're so exhausted. Extremely exhausting. When I was going to trial, I was going every single day. … And it killed me.
— Tony, male sentenced prisoner, minimum security, 24–36 years, NESB, urban prison
    They [female inmates] actually don't want to go in the truck for like five hours, stay over at some cells in a male jail or something and then go to court.
— Non-custodial staff member, urban prison

In addition to travelling in the much-maligned trucks, moving to another prison for the purposes of attending court, according to our interviewees, causes great disruption as this inmate explained:
    For an inmate to go to court from the country centre to the city centre, the first thing that happens is you pack your gear. So you're in your cell overnight with nothing, 'cause your gear's packed the night before. It goes on escort with you. You lose your job. You lose your visits. You lose your buy-up. You lose your friends. You lose your civility. And in jail, that's everything. You just lost your world. You go to this place. Your property might get lost. Invariably it does. And if it's not lost, it will go there to the next place, and they'll go, 'Oh, you can't have that. You can't have this. You can't have that.' … 'Cause they've got different attitudes. Well, and then you have your court case, and then you come back again. Or they defer it for a month. So they put you back again. So you go through the whole thing again.
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

A few interviewees reported instances of inmates who pleaded guilty to avoid having to travel back and forth to court for a trial. For example,
    I didn't want to go back to X [outer Sydney suburb] court [because] you had to go all the way to X [regional jail] and stay there and then get the escort court truck backwards and forwards. And I had a job down this way and I was happy and settled in where I was and I didn't particularly want to go up there just for a lousy firearm offence … I knew it was either going to be six or twelve months in prison or a fine. So I pleaded guilty.
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison
    I even gone to say court fronting on a blue, and although I wasn't guilty because of the stress and going and coming all the time and being thrown around and getting out of bed at 4.00 in the morning to get to court and thrown in the back of a prison van and treated like a piece of crap, you know, I just said guilty to get it over with.
— Jason, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Accordingly, when attending court is deemed to be so arduous that some inmates appear to actively avoid or minimise the amount of time they spend in transit, this affects their effective participation in the criminal legal process and, at times, their legal outcomes.

Reduction in movement through the use of AVL

Several interviewees suggested that AVL may be an effective way of addressing the impact of court attendance and transfers between prisons. The Legal Aid Commission uses audio visual conferencing to communicate with clients. In 2004/2005, 15 Legal Aid offices had audio visual facilities and AVL was used 3 691 times to communicate with clients (Legal Aid NSW, 2006c, p. 43). One DCS worker we interviewed argued that:

    If someone from Wollongong has got a client at the MRRC, it will definitely be a lot easier to have it by video conference than to come personally to see one client. It will take probably half a day for the lawyer to come over just to see his client … instead of spending half a day for one client, the lawyer, if he's got one at Parklea, MRRC, or one at Bathurst, has the possibility in that, within a matter of minutes [he's] conversing with all three clients.
— DCS policy officer, head office

A number of interviewees also suggested that inmates preferred using AVL instead of having to travel long distances to attend court.52 This is typified by the following quote from an inmate:
    I've heard from other inmates and they reckon it's a great idea. It saves having to go all the way to the major centres for a court case when you can just get on the video link. So their lives are not uprooted.
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

Some concerns raised in this study about the use of AVL are discussed in Chapter 6. However, many inmates commented that the system was preferable to travelling in the prison trucks or having to transfer to another prison to attend court — to the extent that some inmates reported pleading guilty just to avoid being moved. In these circumstances court appearances through AVL would give inmates a better chance at participating in the legal process without significant disruption.

Lockdown

A final systemic process that impacted on inmates' access to legal information and assistance according to our research was lockdown. Lockdown was discussed earlier in this chapter as a result of staff shortages. However, lockdown is also part of the daily routine of prisons and consequently its impact can be independent of any staffing problems.

The hours prisoners are allowed out of their cells vary from prison to prison, and between parts of prisons, depending upon the classification of the prison or wing. For example, at one maximum security prison inmates are let out of their cells at 8.30am, returning for an hour between midday and 1pm. They are then let out again until 3.30pm, at which time they are locked in their cells for the night (DCS welfare officers, urban prison). This is a fairly standard regime for a maximum security facility. The number of hours spent outside of a cell can be significantly less for those in protective or segregated custody, who remain in their cells other than when allowed out for short periods of exercise or for legal visits (NSW DCS, 2005a, p. 14). The actual numbers of hours inmates with different prisoner classifications spend out of cells are detailed in Chapter 2. Out-of-cell time has declined in NSW since 2000/01, and NSW has the lowest average number of out-of-cells hours for both 'open' and 'secure' custody in the country (SCRGSP, 2007, Table 7A.18). Further, the average number of out-of-cell hours for some inmates is lower than it was at the time of the Nagle report (Nagle, 1978, p. 498). The effect of routine lockdown on legal visits was described by one lawyer:

    I mean the frustration for me is that a lot of the prisons lock down at lunch time … And it means that I can't see anybody, so I sit there and twiddle my thumbs.
— Legal Aid solicitor

It was also apparent from our interviews that a disparity exists between the daytime schedule of solicitors and the times that inmates are allowed out of their cell, thereby compromising inmates' capacity to contact their lawyers. In short, lawyers are often at court throughout the period the inmate can make calls. By the time most solicitors are back in their offices and able to converse with clients, the inmates are locked back in their cells where there is no access to telephones:
    Our inmates are locked in at 3.30pm. There is no solicitor who is out of court before 3.30pm. So they have no access to them even if the number is on their phone account.
— DCS welfare officers, urban prison

In lower security correctional centres, inmates are allowed out of their cells for longer periods of time, increasing the likelihood of contacting their legal representative:
    'Cause the phones [are] on 'til ten o'clock at night. And you'd always contact them, say 5.00pm, when they're back at the office, and always get a hold of them.
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Lockdowns may also intrude upon available time for legal visits or legal advice sessions:
    Times when solicitors can actually come and visit … say they want to see you at 11.30am. Well, at 11.30am we're locked into our cells until 12.30pm, right. So, that cuts out the time that they can spend with their clients.
— Langdon, male sentenced inmate, maximum security, 35+ years, Aboriginal, urban prison

Solicitors who visit several inmates reported frustration at having to wait for two hours during lockdown in the middle of the day:
    With the hospital at X [jail] the muster is from 11.30am–1.30pm … Which is really a big part of the day. So if you are not finished you are going to have to come back and you wait two hours in a place where there is nothing around. You can't take that much time out of your day. It's very frustrating.
— Solicitor, IDRS

The need for legal systems to coordinate with DCS was further demonstrated in one example, where a court wanted to arrange a family mediation by telephone conference with an inmate in prison. As the welfare officer described:
    They'll ring up and say, we want a conference with this inmate on the telephone, at this time … They don't realise we have lock-in times, when the inmates are actually not available.
— DCS welfare officers, urban prison

As in the previous section on transit to court, DCS workers and legal representatives suggested that the use of AVL could address some of the issues facing lawyers trying to telephone or visit their clients during prison hours:
    If you try and make phone contact … you have to do it through welfare or the area manager and 9 times out of 10 it just doesn't happen, it's too awkward. But, with the AVL bookings it is a formal system where there is a booking on Wednesday at 10.00am for an AVL from Goulburn.
— Legal Aid solicitor

Clearly, as the data above shows, communication with external providers of legal services can be disrupted by lockdowns. Within the prison, lockdowns can also hinder use of those internal systems that support inmates' capacity to access justice such as the telephone system or the prison library. This was acknowledged in our study by stakeholders and inmates alike:
    And obviously when they're locked down they don't have access to phone calls or obtaining information.
— Custodial officer, urban prison
    Because … we might have had lock down for three days in a row or something and I've got my books full, and everyone's just screaming for phone calls …
— Welfare officer, urban prison

In summary, there is often a discrepancy between prison operating hours (that is, when it is not in lockdown) and the working hours adopted by external agencies such as legal services and courts. Given their busy schedules, these agencies, in particular lawyers, have difficulties fitting in with prison routines and lockdowns. Similarly, inmates have difficulties fitting in with the work schedules of lawyers who are often in court during the day at the times that inmates have access to telephones. Further, lockdowns may interfere with inmates' use of internal resources such as the library to help them resolve their legal needs. AVL was again put forward as a means of more efficiently delivering legal services in the challenging context of prison strictures such as a lockdown. Moreover, because inmates are assembled prior to the videolink going live, inmates may get more time with their adviser rather than the latter having to wait for the former to be brought into the a visiting area.

Conclusion

Chapter 1 argued that at law, prisoners are not denied access to justice. Further, through the values and principles that guide the department, DCS is in fact committed to supporting prisoners' access to legal resources and assistance. Our research has identified several examples within the formal custodial setting of where this has been achieved. For example, DCS has processes in place to take inmates to court for their criminal matter and provides accommodation and access for visits by lawyers. However, our analysis has identified a number of features of the formal systemic environment that disrupt or impede the ability of inmates to address their legal needs.

Firstly, it appears that resources in the form of staff and facilities that support access to legal information and assistance often fall short of the demands placed upon them. In some cases this seemed to be a matter of pure numbers (e.g. only one lawyer for a large number of inmates) and in other cases, there was competition for resources in a system where a number of conflicting priorities operated (e.g. DCS officers are stripped from tasks that underpin access to legal assistance to supply security roles and assistance with criminal matters is more readily accessible than assistance with civil law matters). For inmates, these barriers may mean that they do not have the best chance to receive and utilise timely advice concerning their legal matters.

Secondly, some processes operating in this systemic environment may not be optimal in terms of inmates' capacity to meet their legal needs. For example, sometimes there appeared to be conflict between processes emanating from one part of the prison system (e.g. classification, segregation and lockdown) with those processes geared towards helping inmates obtain assistance with their legal problems (e.g. use of telephones, organising legal visits and using the prison library) resulting in delay or prevention of access to legal assistance. Consequently, whilst there are systems in place to assist inmates with their legal needs, practically there are certain groups or times that that access cannot be exploited. As with the allocation of resources, there appeared to be an element of prioritising those processes that ensured the security aspects of inmate detention over those which support welfare needs, including legal needs. Unfortunately, restrictions in access to legal help sometimes occurred at crucial junctures in an inmate's course of action, such as when they first come into custody.

Thirdly, from the data presented here, there also appeared to be tensions between the procedures of external agencies (e.g. solicitors, barristers and courts) and prison routines (e.g. movement of prisoners to other prisons, transit to court and out-of-cell hours) that rendered co-ordination of tasks aimed at resolving legal issues such as telephone calls, court appearances and legal visits difficult or even impossible. Inmates described not being able to be in direct contact with their legal advisers because the times they were out of their cells clashed with the times their lawyers could answer telephone calls or be present at the prison. Further, the telephone system designed for inmate use is unidirectional so that lawyers cannot return inmates' calls or easily leave messages. If direct contact between an inmate and a lawyer was made, the conversation may be curtailed because of time restrictions on inmate calls and/or lack of privacy. The AVL system was forwarded by a number of interviewees as a way to improve contact between lawyers and their clients/inmates with the court system, although as noted in Chapter 6 this system is not suitable for all inmates. Other initiatives, such as the recent implementation of a Centrelink outreach service, were also suggested as ways of ameliorating these tensions.

In our discussion of the systemic environment, reference has inevitably been made to players within these systems. Indeed, we have not just spoken about lawyers as key providers of legal help, but have noted how shortages of custodial staff or welfare officers can also affect prisoners' access to justice. This leads us to a further area of analysis and the next chapter of this report: namely the pathways used or the intermediaries that inmates depend upon to access legal assistance and to participate in legal processes. As will be discussed in Chapter 8, prisoners' dependence on intermediaries arise from a number of factors, including the constraints described in this chapter that are imposed by the systems within which inmates must live and function.



See http://www.dcs.nsw.gov.au/about_us/Mission_and_Vision.asp
As noted in Chapter 5, the Legal Aid Prisoners Legal Service provides a regular advice service to inmates in Sydney prisons. In rural and regional prisons, local Legal Aid staff conduct similar services.
Lawyers and field staff (field staff are ALS employees who are not lawyers but who assist ALS lawyers to gather information from inmates with respect to their legal matters) regularly visit prisons and assist Aboriginal inmates whether they are ALS clients or not.
In some courts there will be an ALS duty lawyer to provide representation to Aboriginal clients on list days.
It should be noted that the interviewees for this study did not note shortages among private solicitors.
See Chapter 5 for more detail on this process.
See Chapter 5 for further details.
Chapter 5 outlines what materials prison libraries contain.
See http://www.liac.sl.nsw.gov.au
The inmate telephone system is discussed in more detail in Chapter 5.
Please see Chapter 5 for discussion on the use of AVL.

42  See http://www.dcs.nsw.gov.au/about_us/Mission_and_Vision.asp
43  As noted in Chapter 5, the Legal Aid Prisoners Legal Service provides a regular advice service to inmates in Sydney prisons. In rural and regional prisons, local Legal Aid staff conduct similar services.
44  Lawyers and field staff (field staff are ALS employees who are not lawyers but who assist ALS lawyers to gather information from inmates with respect to their legal matters) regularly visit prisons and assist Aboriginal inmates whether they are ALS clients or not.
45  In some courts there will be an ALS duty lawyer to provide representation to Aboriginal clients on list days.
46  It should be noted that the interviewees for this study did not note shortages among private solicitors.
47  See Chapter 5 for more detail on this process.
48  See Chapter 5 for further details.
49  Chapter 5 outlines what materials prison libraries contain.
50  See http://www.liac.sl.nsw.gov.au
51  The inmate telephone system is discussed in more detail in Chapter 5.
52  Please see Chapter 5 for discussion on the use of AVL.


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Grunseit, A, Forell, S & McCarron, E 2008, Taking justice into custody: the legal needs of prisoners, Law and Justice Foundation of NSW, Sydney