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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 4. Legal Issues Affecting Prisoners


Before we can examine the capacity of prisoners to access justice, it is necessary to appreciate the nature of their legal needs. As will be illustrated in this chapter, the legal needs of prisoners are neither singular nor static. While, by definition, all prison inmates have, or have had a criminal law issue, we have found that prisoners also experience a range of other civil and family law issues. Some issues are related to their financial disadvantage and personal histories such as pre-existing debts and fines; others stem from imprisonment (e.g. breaches of prison rules) and separation from the outside world. Even when inmates leave prison, they may experience particular legal issues arising from their incarceration (e.g. discrimination in employment, housing, or an inability to manage outstanding and increasing debt). Consequently, the nature of the legal problems faced by prisoners can change as their incarceration progresses. This chapter presents information about the legal needs of inmates, as reported by our interviewees. However, where appropriate, and to contextualise our findings, we have also drawn upon supplementary data, legislation and available literature.

Criminal justice issues

While all prisoners face (or have faced) conviction for one or more criminal offences, they also may be subject to a number of other criminal justice processes during and after their period in custody. Specifically, as well as dealing with issues concerning the principal offence, prisoners may need to address bail, correctional centre disciplinary offences, warrants and parole. During post-release, prisoners will need to deal with varying degrees of police attention. Apprehended violence orders (such as an Apprehended Violence Order (AVO) and an Apprehended Domestic Violence Order (ADVO)) are included as a criminal justice issue as the breach of these orders is a criminal offence.

Principal offence

People are held in NSW prisons for a wide variety of offences. As 30 June 2006, 12.4 per cent of all NSW inmates were in custody with a drug offence as their 'most serious offence'. The next most common 'most serious offence' was major assault (11.7% of inmates), followed by break, enter and steal (11.3%). Other 'most serious offences' included: robbery with major assault (7.6%), other forms of theft (7.3%), driving/traffic offences (6.6%), murder (6.5%), breach of parole (6.5%), serious sexual assault (5.9%), other (non-major) assault (5.6%) and offences against good order (5.1%) (Corben, 2006a, p. 22).

It is important to note that we did not ask our inmate and ex-inmate interviewees about the offences for which they went to prison. However, during the course of our discussions, some interviewees revealed they were incarcerated for offences including drug trafficking, assault, murder and attempted murder, sex offences, Department of Community Services (DOCS) related offences, traffic offences, breach of parole, property damage, burglary, breached AVO/ADVOs and other, drug related offences.22 As indicated in the previous chapter, 19 (41.3%) of our prisoner sample were on remand for their offence and 27 (58.7%) had been convicted.23

Once convicted, an inmate's resolution of their criminal matter(s) may continue should they choose to appeal their sentence or conviction. Several inmates in the study reported that they had appealed or were in the process of appealing either their sentence or their conviction:

    When I was sentenced they gave me twelve months. I came back from court, went up to the wing officer, said I'm putting an appeal in … Yep, took six months off.
— Raul, male sentenced inmate, minimum security, 35+ years, NESB, urban prison

Appeals are relatively common among inmates, with 4.9 per cent of all NSW DCS inmates held as at 30 June 2006, awaiting appeal (NSW DCS, 2006d, p. 19).

Bail

One of the first legal actions to be considered when someone is taken into custody is an application for bail. Bail is an agreement to attend court to answer a criminal charge. While not all inmates may be eligible for bail, bail can be granted at any stage during criminal proceedings. Certain conditions can be attached to a grant of bail if they are considered necessary for law enforcement purposes and the welfare of the community (Barry, 2004, p. 106). For example, conditions may include agreeing to reside in a bail hostel, or posting an agreed amount of money to be forfeited if the accused person fails to comply with his or her bail undertaking.24 Inmates on remand have either been refused bail, are ineligible for bail or cannot meet bail conditions. For instance, stakeholders interviewed for this study spoke of prisoners remaining on remand because they could not raise funds to post bail:

    Usually if bail's an issue it's because they've got bail [but] can't raise the money. Then you're going to have, 'I need to talk to me mum.' 'I need to talk to me sister.' 'I need to talk to so and so' … Trying to arrange bail.
— Custodial manager, rural prison

Further, a person can be re-arrested if they have breached their bail conditions (Barry, 2004, pp. 102–107). A number of inmates, who had been granted bail prior to sentencing reported having difficulties complying with bail conditions and consequently were breached and incarcerated:
    I was on bail, I had to report … and then a few things happened. I had the birth of my daughter at a particular time … I wasn't able to report.
— Paul, male sentenced inmate, minimum security, 25–34 years, non-Aboriginal, urban prison

In a 2001 parliamentary inquiry into increases in the NSW prison population, concern was already being expressed about the increasing number of prisoners being refused bail and the number not able to meet bail conditions. One corollary of this trend noted in the inquiry was an increase in the remand population (NSW Legislative Council, 2001, ss. 5.30 and 5.47). In July 2002, the Bail Amendment (Repeat Offenders) Act 2002 (NSW) amended the Bail Act to the effect of removing the presumption in favour of bail for repeat offenders, which led to further increases in the bail refusal rate of 7 per cent (Fitzgerald & Weatherburn, 2004, p. 1). Correspondingly, in the 18 months after the legislation was amended, the remand population increased at an average of 6 per cent per month (Fitzgerald & Weatherburn, 2004, p. 6).

There is some literature to suggest that certain sectors of the population, such as people with intellectual disabilities, homeless people and Indigenous people are more likely to be refused bail and held on remand than others. For instance, the NSW LRC (1996) observed that 'people with an intellectual disability may have to be kept in custody inappropriately because of lack of understanding of bail conditions or lack of support in the community' (section 4.7; see also Simpson et al., 2001, pp. 48, 53, 61). Forell et al. (2005) also noted the particular difficulties homeless people have in getting bail as the result of not having a stable contact or address (p. 238).

As well as seeking to reduce the availability of bail for repeat offenders as mentioned above, the Bail Amendment (Repeat Offenders) Act sought to improve access to bail for groups of people with special needs, including Indigenous people (Fitzgerald & Weatherburn, 2004, p. 1). However, a review of the impact of this Act found that, between January 2001 and December 2003, the rate of bail refusal for Indigenous adults actually increased by 14.4 per cent compared with a 7 per cent increase in the bail refusal rate for non-Indigenous people (Fitzgerald & Weatherburn, 2004, p. 5). The authors suggest that this may be because Indigenous offenders are more likely than non-Indigenous offenders to appear in court with a prior criminal record (see Weatherburn, Lind & Hua, 2003), thereby including them in the group of repeat offenders that the changes were designed to target (see also AJAC, 2002). Overall, the types of issues raised by our interviewees concerning the difficulties of getting and staying out on bail are reflected in the broader literature.

Disciplinary offences

Prisoners are subject to a set of regulations, which have disciplinary consequences. Under Part 2 Division 6 of the Crimes (Administration of Sentences) Act, the governor of a correctional centre can charge an inmate and conduct an inquiry if it is alleged that the inmate has committed a 'correctional centre offence'. A correctional centre offence refers to any act or omission by an inmate that occurs whilst they are in prison and is declared to be an offence under section 51 of the Crimes (Administration of Sentences) Regulation (regardless of whether the act is outside the prison context a criminal offence or not). This includes acts that are specific to prison management and the maintenance of good order, as well as assault or damage property. Examples of the types of disciplinary offences inmates face include:

  • contravention of conditions of leave (reg. 124)
  • concealment for escape (reg. 125) and concealment of certain items (reg. 126)
  • possession of offensive weapon or instrument (reg. 126A)
  • intimidation (reg. 127)
  • indecency (reg. 128)
  • riots (reg. 129)
  • physical aggression (reg. 130)
  • hindering or obstructing dogs (reg. 132)
  • correctional centre property offences (reg. 134)
  • tattooing (reg. 135)
  • gambling (reg. 136)
  • alcohol (reg. 137)
  • possession of drugs (reg. 138) or drug implements (reg. 140)
  • administration of drugs (reg. 139)
  • failing prescribed urine tests (reg 142)
  • bribery (reg 144).

In a Canadian study of legal needs, inmates identified legal assistance for disciplinary offences as the most critical area of legal need in federal prisons (Lajeunesse, 2002, p 2). In our study, however, while inmates described being subject to internal DCS disciplinary processes, these issues were not emphasised over their other legal needs. One inmate described being disciplined for having a 'dirty urine' reading, where recent drug use was detected through a urine test. Another inmate, who worked in the prison kitchen, reported having been disciplined for giving leftovers to other inmates without the permission of the supervising custodial officer:
    We had a heap of extra cakes from the lunches leftover one day … and I gave them to the guys that deliver the meals … and because I did it without the consent of an officer, it was considered trafficking.
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

Of note is the fact that inmates do not have access to legal representation when charged with a correctional centre offence heard by the governor:
    Whether he gets a caution or three days in a cell, he is guilty at the end of the day, that is the important thing. Regardless of what punishment they get. And I've seen instances where of course the inmates, they may not be responsible for what happened, yet they still get reprimanded because the system is such that they don't have people explaining on their behalf or fighting for them and saying "hang on, this is wrong, what you're doing is wrong, it's the other person that provoked him" or something like that.
— Custodial officer, urban prison

In NSW, the most common charges heard by correctional centre governors in 2005–06 were 'charges against good order' (3 216 charges), 'other [non alcohol] drug charges' (2 202), 'abusive behaviour' (1 094), 'fighting or assault' (1 022), 'property damage' (826), 'stealing' (775), 'failure to attend muster' (768) and 'refuse to provide a urine sample' (642). Overall, the governors in 2004/5 heard a total of 10 588 charges (NSW DCS, 2006d, p. 27).

Another legal administrative area unique to inmates concerns their classification status.

    I've got a fellow at the moment that we're chasing up … his Classo papers. Because I think he was Classoed without the use of an interpreter. Can't speak a stitch of English. So he's sat through a whole process that he's meant to be a part of, and they've just done it without him being asked to speak English.
— DCS welfare officer, urban prison

In NSW, security classifications (segregation and enforced protective custody directions) for 'serious offenders' (generally people in custody with a non-parole period of at least 12 years) are reviewable by an independent statutory authority, the Serious Offenders Review Council (SORC). In 2004, SORC received 63 applications seeking reviews of segregation or protective custody directions, 26 of which proceeded to hearing (SORC, 2006, p. 10). The Council recommended that 15 inmates (out of a total of 39 applications) have their escape-risk classification removed (SORC, 2006, p. 4) and the Commissioner approved eight of these recommendations (p. 9). Although no interviewees for this study had appealed a decision to the SORC, the inmates we spoke with described the gravity of being segregated or put in protective custody. Many inmates described protection as something to be avoided given the connotations that those on protection may be either informants or paedophiles, both despised within the prisoner population.
    When I got to X [prison], they put me in protection side of the wing, but in my cell. I refused to go out, I refused to eat, I refused to shower, I did not want to go out into the protection yards because once you go into that protection yard, you never get out of protection. Once you're in there, that's it. …
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Apprehended violence orders

AVO/ADVOs are orders that aim to protect people from acts of violence. They do not impose a criminal record but it is a criminal offence to breach an order (Barry, 2004, p. 502). A few inmates interviewed for this study said that they currently had AVO/ADVOs in place against them:

    … because of the bail conditions and the AVO I wasn't supposed to speak to directly to her.
— Ryan, male parolee, 35+ years, non-Aboriginal, rural area

When inmates first come into prison, they are asked by the reception officer if there is an order currently active against them. The purpose of asking inmates whether they have an AVO/ADVO operative is that prison officials can prevent inmates from attempting to contact the applicant to the AVO/ADVO. However, one worker suggested that inmates did not always reveal whether they were the respondent to an AVO/ADVO. If the prison subsequently gives permission to the inmate to contact the applicant to the AVO/ADVO because they are unaware the order is in place, the inmate will have breached the AVO/ADVO:
    AVOs … create a problem for us because [if] we don't get the AVO history on somebody, we're asking for it … Because we don't want to be breaching any orders of the court by facilitating phone calls …
    — Non-custodial staff manager, urban prison

Further, an inmate may not be aware that they may be deemed to have breached an AVO/ADVO if they attempt to contact the applicant by telephone from prison (as opposed to approaching them in person). Inmates may also try to contact their partners when they leave prison on parole thereby incurring a breach and having their parole revoked:
    I've heard this with AVOs, where they'll turn up at an ex-partner's place. But they're of the view that if they don't belt them, then what harm's caused? They've just called in to pick up their drill, you know, or see their son, or something like that. But it's against an order. The wife … gets onto the coppers and they're arrested … Within 48 hours of being let out, within 24 hours of me telling them that this order's in place, they're locked up again.
— Probation and parole unit leader, rural area

Another problem noted by the same worker was that both applicants and respondents did not always understand the terms of the AVO/ADVO to which they were a party. For example, an applicant may not realise that they are putting the respondent at risk of breaching by visiting them in prison.
    And I don't think a lot of the families or the inmates understand those orders. So for example, families will present for a visit or they'll try and hide [the fact that] there is an order in place. And that becomes problematic when we do checks.
— Non-custodial staff manager, urban prison

Warrants

Warrants were also raised as an issue affecting prisoners by our interviewees. A warrant is a written authority that enables police officers to arrest a named person. One welfare officer explained that in prison, warrant files are kept by the staff who hold records of all legal orders and bail orders. Inmates can apply to their wing officer to have any additional (that is, additional to matters previously dealt with) warrants 'called in' (executed). However, according to our interviewees, it was alleged that there is no routine process for police or prison officials to check warrants. This means if inmates have not 'called in' their warrants while in custody, or if new warrants have been issued, they are vulnerable to being re-arrested as soon as they leave jail:

    … someone's been in jail for a period of time and there might have been a warrant out for a previous offence, and they don't know that the warrant's out. So they're released from jail and they're walking along the street … they might look like they've been in jail and so the police will pull them over and do a check on them and then there's a warrant out, so then they're back in custody overnight.
— Probation and parole officer, urban area

Interviews with both inmates and DCS workers suggest that inmates were sometimes being served with warrants as they exited jail. As a consequence, they would then serve jail time in addition to their original sentence, when the new sentence could have been served concurrently had the warrant been executed earlier. There was a perception among some interviewees that police were doing this deliberately, so they could re-arrest certain inmates upon release:
    There will be more charges, but they don't bring them up to court. They wait until you finish your time, they come and charge you and you're back in.
— Wahib, male remandee, minimum security, 25–34 years, NESB, urban prison

Warrants and the collection of DNA

A further issue associated with warrants raised in interviews, was the collection of DNA. In 2000 the NSW government introduced the Crimes (Forensic Procedures) Act 2000 authorising the collection of DNA samples from 'serious indictable offenders' currently imprisoned in NSW. These samples are stored on a national DNA database enabling inmates' (and others') DNA profiles to be cross-matched with DNA samples from crime scenes (Gans & Urbas, 2002, p. 3). In the eighteen-month review period adopted by the NSW Ombudsman, 10 000 inmates in correctional facilities were subject to DNA sampling (NSW Ombudsman, 2004).

Concern has been expressed by prisoner advocates about the collection of DNA from inmates, its implications for privacy (see Justice Action, 2008) and the threat it poses for public health protection in prisons as inmates fear providing pathology samples for fear of forensic evidence being taken (Levy, 2002, p. 252). Inmates serving custodial sentences for certain offences may be required to allow a DNA sample to be taken which may subsequently be used issuing new warrants for arrest. For the reasons given above, some inmates interviewed for this study feared that fresh charges may be laid as they come to the end of their sentence because of DNA evidence they had previously supplied:

    The main concern most inmates have is the DNA coming back at them. The way it's getting left to right near the end of their sentence. That way the police are assured of getting more time on them, you know what I mean?
— Simon, male sentenced inmate, medium security,
    35+ years, non-Aboriginal, urban prison
    So what happened was they took me DNA and about six to eight weeks later the DNA come back and they grabbed me for a job in X [street name] avenue, and it was from DNA, a strand of me hair. So I just pleaded guilty and let it run concurrent with me sentence. 'Cause what you do is, if you go to jail, you [call] any outstanding warrants and any outstanding charges, so while you're doing the sentence you're doing it can run concurrent or they can start it from a certain date. So if you've got a bigger sentence on top it runs concurrent.
— Gary, male parolee, 25–34 years, Aboriginal, rural area

Parole

Release on parole involves an offender being allowed to live in the community prior to the completion of their full sentence period, on the proviso that they adhere to certain conditions of that parole (Jones et al., 2006, p. 1). When a prisoner is sentenced, a non-parole period is determined and inmates cannot be released until this period has expired. Prisoners serving three years and less are automatically released at the end of their non-parole period. However, prisoners serving more than three years can only be released on parole by the State Parole Authority of NSW (SPA) (Barry, 2004, p. 910). In determining whether an inmate is to be released on parole, in addition to the public interest, the SPA takes into consideration whether there is 'sufficient reason' to believe that the prisoner will be able to adapt to community life (Barry, 2004, p. 190). If the SPA expresses an intention to refuse parole, the governors or their delegates must ensure that the inmate is notified of this intention so that they can apply to the SPA to have the matter reconsidered at a hearing.

Eligibility for parole

A number of our prisoner interviewees were ineligible for parole and were either currently serving out their sentences or had been released from prison unconditionally, at the completion of a full sentence. DCS workers said that many inmates were unable to get parole because suitable accommodation could not be found for them. This emerged as a particular issue for people leaving rural and regional jails:

    And the difficulty now is that probation and parole need to confirm the accommodation. The nature of crisis accommodation, basically crisis accommodation is exactly that … they're not going to [hold them] there for a week, but probation and parole need to know a couple of weeks before they're released so they can get it checked out. So it's like a, it's a catch 22 situation for the guys … it's very hard for me to get them accommodation two weeks out, and it's virtually impossible in that type of accommodation, but probation and parole need it.
— Throughcare officer, rural prison

There was also the suggestion that inmates with cognitive impairment or intellectual disability were not granted parole as readily as other inmates because of a lack of support post-release (see also Chapter 6):
    And there's no support for them to come out to, so they don't get considered for parole … I couldn't tell you the last time a person with an intellectual disability came up for parole. It just doesn't happen. They always serve their full sentences.
— Worker, CJSN

A number of interviewees raised concerns about inmates not being able to participate in education or behaviour related courses in jail that in turn affected their chances of securing parole. Interviewees spoke of courses being full or not offered in particular centres, and inmates losing their places in courses when transferred from centre to centre (see Chapter 7).

Breaching parole

As of 30 June 2006, there were 3 990 people being supervised on parole in NSW (NSW DCS, 2006d, p. 11, Table 6), comprising just over two-thirds of all released offenders. A key issue for parolees is to avoid breaching parole conditions and returning to jail for the remainder of their sentence. Research has suggested that 'many people who fail on probation or parole do so because they have breached the technical conditions of their parole orders and not because they have committed a criminal offence' (Jones et al., 2006, p. 2).

Our interviews indicated that some ex-inmates who had been successful in getting parole, breached it because they had had difficulty meeting their parole conditions post-release. For instance, people were reported to have breached parole for associating with 'known criminals' when they returned to live with family or in their community, because family or community members had also been convicted of crimes.

    They're not allowed to mix with known criminals either. So it makes it difficult because mum, dad, your brothers and sisters, and aunties and uncles, you know, could all have sentences. What the hell do you do?
— Official Visitor, urban prison

Other breaches arose when ex-prisoners moved to a new address without informing their parole officer or had not complied with a mental health order to take certain medication.
    And in the meantime they'll just decide, bugger it; I'm going to be un-medicated. So then they'll re-offend, or in some way their behaviour will be inappropriate and they'll get revoked; they're back in custody.
— Probation and parole unit leader, rural area

Interviewees also indicated that the sheer volume of obligations facing ex-prisoners (e.g., to report for parole, to fulfil Newstart (social security) requirements and to maintain drug treatment regimes) can make it very difficult for ex-prisoners to meet all the terms of their release:
    So, the increasing obligation for people on Newstart Allowance to look for work, reporting requirements and participation in programs that might be part of their legal supervision and parole. And there are sometimes conflicting demands for attending or they'll have to go [to an] appointment for this whilst they're supposed to be attending their training— that sort of thing.
— DCS policy officer, head office

Adding to their difficulties are very practical problems such as limited and unreliable public transport, which can in turn impact on parolees' ability to turn up on time (or at all) to their various appointments:
    Most inmates don't have any transport. Don't have a car … So transport is a big problem in just getting down here to be on time.
— Parole officer, rural area

Interviewees also noted that some groups of parolees such as those with intellectual disabilities or Aboriginal parolees had particular difficulties with their parole. For example, the comment was made that people with intellectual disabilities may struggle to understand and keep to the terms of their parole:
    A typical trait of a person with an intellectual disability is that they will go and visit their friend even though they're not supposed to see the friend.
— Lawyer (roundtable)

One parole officer felt that Aboriginal parolees were more likely to be classified as having a higher risk of re-offending because of their community ties and their more 'transient lifestyles'. This can result in Aboriginal parolees having more stringent parole obligations placed on them, with more appointments with family services, mental health professionals and their parole officer. Consequently, the chances of breaching are also increased:
    Because they've got no settled roots in any particular area, they tend to come as a higher risk of re-offending in all of our assessment tools … Their numbers are higher because of no long-term employment [and a] 'transient lifestyle' … So he's now medium to medium-high risk, so we have to see them more often. We have to get involved in their life more often … so when they go away for their fortnight, if they were white and a low risk, we'd give them a month to get in contact with us. If they're medium-high, the political situation says, 'You get on to these people. Where are they? If you can't find them, breach them.'
— Probation and parole unit leader, rural area

As demonstrated above, inmates can agree to parole conditions prior to release that turn out to be unsustainable once they are living back in the community. To address this, some workers highlighted the need for released prisoners to be able to access the PLS after their release, to help amend parole conditions that are not practicable.

Police attention

Several ex-prisoners and other stakeholders interviewed reported that ex-prisoners were often stopped and questioned by police in public places. This appeared to be particularly so for ex-prisoners living in small, regional towns:

    The police have harassed me a bit … they see your tattoos and they know you've been in jail and they always think you're up to something.
— Jason, male ex-prisoner, 35+ years, non-Aboriginal, rural area
    But they tend to come under police notice a lot once they're out … they're constantly getting pulled up and questioned about things.
— Probation and parole unit leader, rural area

These observations are consistent with the findings of earlier research about the experience of people recently released from jail. Participants interviewed in Baldry et al. (2003) also commented about the negative attention they had received from police following their release from jail (p. 22). While safe and secure housing was associated with being less visible on the streets and less targeted by police, even released prisoners in stable accommodation reported being stopped and questioned by police when there appeared to be no immediate reason for this to occur (p. 23).

Summary

Prisoners face a range of criminal justice issues. As well as the offences for which they were incarcerated and any outstanding matters, prisoners may be eligible to apply for bail or appeal their conviction or sentence. They are also subject to a new range of offences relating to their behaviour in prison and may have to adhere to conditions upon their release. For each of these different types of issues an inmate may require legal assistance. Indeed, inmates may require help with criminal law problems at any point in their incarceration, even though the most salient issues (bail and their principal offence(s)) occur during their period on remand.

Civil issues

Given inmates' acute need for criminal legal assistance, it can be easy to overlook the outstanding civil and family law issues that they may also have. Our investigations suggest that inmates often have civil law issues, arising in a number of ways: firstly, inmates may come to prison with outstanding civil legal issues arising from pre-existing lifestyles, or heavy financial burdens and other disadvantages. Second, they are likely to experience legal issues arising from the interruption that incarceration has on their lives, impacting on their employment and business affairs, housing and personal property and social security. Finally, the experience of being incarcerated can lead to other issues such as civil law claims for injury in prison, media related legal issues such as defamation and immigration issues. The effect of incarceration can also lead to problems once prisoners leave prison, such as discrimination in employment.

Business and employment

The interruption to a person's life that results from their incarceration can be extremely abrupt and relatively absolute. This presents very significant challenges to inmates who had been operating businesses or had responsibilities to an employer. Particularly if someone is remanded in custody, there can be little or no opportunity to close the business, 'tie up loose ends' or complete projects.

Fifteen of the current or past inmates interviewed for this project reported that they had paid work before they were arrested, including a small number who had their own business. Apart from any condition imposed by a court and a general prohibition on inmates profiting from their crimes, there is no statutory exclusion barring prison inmates from conducting business from prison. Equally there is no statutory right allowing inmates to conduct business from prison (personal communication: DCS Policy Officer, 13/02/07).25 However, whatever the rules on this issue, the ability to conduct business is also obviously severely hampered by inmates' physical location in the prison and their limited capacity to communicate with the outside world (e.g. through telephone or internet or email access). The inmates that we spoke to who had businesses, reported relying on less experienced business partners or family members to continue trading. Others reported that their businesses had simply collapsed:


    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

Most of the inmates, who were employed prior to incarceration, said that they lost their jobs when they came into prison. In some circumstances, family members had been able to inform the prisoners' employers about what had happened, however, a few inmates reported that their employers had not been told that they were in prison.

Aside from the obvious impact jail has on a person's ability to participate in the workforce, interviews suggested that being in prison also has an impact on the ability of an ex-prisoner to secure employment once they leave. More specifically, prisoners may be subjected to both lawful and unlawful discrimination when they leave prison on the grounds of their criminal record. Discrimination on the basis of a criminal record is unlawful under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as the Human Rights and Equal Opportunity Commission Regulations 1989(Cth) extended the definition of discrimination in the Act to include criminal record (reg. 4(a)(iii)). However, there is an exception allowing discrimination in employment on the basis of a criminal record where it is an inherent requirement that an employee does not have a criminal record (HREOC, 2005, p. 13). For example, there are some occupations that people with certain criminal records are specifically prohibited from doing, such as lawyers, doctors and people working with children (HREOC, 2004, p. 7).

Several ex-prisoners reported being discriminated against in employment (either lawfully or unlawfully) after declaring they had been in prison.26 This is a particular problem for ex-prisoners living in small towns where they are well known locally:


    Which made it hard for me to do things like get a job and all that, because you know, once they find out who I am they think, 'No, hang on, aren't you the fellow that was busted for that cocaine?' And I go, 'Yeah, I was'.
— Gareth, male ex-prisoner, 25–34 years, non-Aboriginal, rural prison

Discrimination on the basis of inmates' prior criminal record and incarceration is also discussed in relevant literature. Metcalf, Anderson and Rolfe (2001) identify employer discrimination as one of the major causes of unemployment among ex-prisoners in the UK (p. 3) (see also Webster et al., 2001, pp. 8–9). In Australia HREOC (2005) has reported that 'in recent years there has been a significant number of complaints to the commission from people alleging discrimination in employment on the basis of criminal record' (p. 7). Following these complaints, HREOC released guidelines for the prevention of discrimination in employment on the basis of criminal record (HREOC, 2005).

Housing


    Getting housing for them, finding out about their house … they might have had a Housing Commission house and they want to find out will they still have it and what happens [with] that [while] they're in jail, and all those [sorts] of things. So I think that's probably the thing that I get asked the most, is about housing.
— Custodial officer, urban prison

Previous research has suggested that the major housing-related legal issues affecting prisoners include the loss of DOH properties while they are in prison; being cut off from public housing waiting lists while in prison; or being unable to apply for public housing while they are in prison because of the uncertainty of their release date (Ogilvie, 2001). Similiarly, interviewees in this study indicated that housing was a major problem for inmates, both when they were imprisoned and when they were released. For many, the problems reported related to public housing, which is not surprising given that 20 of the 67 inmates and ex-prisoners interviewed for this study reported having lived in public housing before they were arrested.

Public housing

According to DOH policy, if a DOH tenant is incarcerated, they can retain their leasehold for up to three months by paying $5 per week (NSW DOH, 2007a). After this period they are obliged to relinquish the property. Under the DOH's 'Absence from dwelling policy' (EST0039A), tenants need approval from the department if they are going to be absent from their dwelling for more than six weeks, but they are not allowed to sublet the premises in their absence (NSW DOH, 2007b). Whilst they are required to report their absence from the dwelling, in some cases, inmates may not be unaware of their obligation to do so:


    Last time, I think it was, that he went into prison, he lost his DOH property because they didn't know he was in there and he didn't know to tell them he was in there. So when he came out he's lost it.
— Homelessness worker, urban area

In other cases, according to both inmate and stakeholder interviewees, inmates did not inform DOH that they were in jail for fear of losing public housing they had waited a very long time to attain. Indeed, rather than informing DOH of their circumstances, a number of inmates reportedly allowed relatives or friends to live in the property in order to maintain possession. As well as putting them in breach of their lease agreements, difficulties arose when the interim occupants damaged the property or failed to pay rent, leaving the tenant in prison liable for the resulting expenses.

    There's guys that have outstanding monies owed to DOH… they may have come to jail and their house was trashed but then they're responsible.
— Throughcare officer, rural prison

Our interviews also suggested that some inmates had themselves accrued damage-related debt and rent arrears with the DOH prior to being imprisoned. Irrespective of whether the damage is incurred by the inmate or someone they have arranged to stay in their house, the resulting acquisition of a debt to the DOH can make it difficult for the inmate to regain public housing once they leave prison. Consequently, some released prisoners found themselves essentially 'blacklisted' from DOH housing:

    They might have been barred from the DOH because they wrecked a house before they went in, and they owe them money for the damage.
— Probation and parole unit leader, rural area

The impact of not being able to secure housing has a double impact, as without suitable accommodation, inmates may then find it difficult to obtain parole.

Privately rented housing

Problems were also reported by interviewees who had been in private rental accommodation prior to going to jail. Firstly their incarceration may have been unexpected, leaving them little scope to notify their landlord prior to going into custody. Further, without assistance, it can be difficult to make arrangements to vacate premises once in prison. As one interviewee stated:


    I lost everything. Because I had no family there was nobody I could actually get to go and retrieve my goods or, or sort out my problems with the real estate [agent].
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

One factor that complicates the issue of when to notify a private landlord is that the inmate may not know how long they will be in prison. In this study, there were examples of inmates not telling their landlord they were in prison because they did not believe that they would get a custodial sentence, or that they would only get a short sentence:

    When the inmates come into custody … their belief is they're not going to be sentenced, [or get] a long sentence, so they often think if I just keep quiet, don't tell my landlord I'm in jail, I'll get to keep it … their wish doesn't always happen: they get a sentence and they have to relinquish their property or their property has been left or … our clients don't always live in great areas so they often get squatters in or somebody's gone in 'cause they know they're in jail, took all their property, damaged it.
— DCS welfare officer, urban prison

In jail, private tenants may accrue debts for unpaid rent (or other damages), resulting in their placement on tenancy default databases or 'blacklists'. Again, inmates' future ability to regain private rental accommodation upon release may be compromised:

    Initially the rent just climbed while I was trying to attain bail in the early part of my matter. And [then] they just went in there and sent everything off to auction, which paid a portion of the back rent, and sent me a bill for the rest of it … They sent me a bill for it saying that if I don't pay it that I will be reported to … some default tenancy service.
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

One inmate described the disadvantage inmates may face when seeking redress from a landlord for an issue which occurred prior to jail. He was seeking compensation for water damage to his personal property from a faulty fire sprinkler in a rented premise. However, he felt that he did not receive the compensation due to him because the landlord discovered and used the fact that he, the claimant, was in prison.

    In the beginning he was going to pay me a couple of thousand dollars for me bed that got damaged in the water, and seven speakers and stuff like that. After about 20 phone calls he worked out that I was in jail and he says, 'Look, take me to court'… My brothers told me and I was a bit pissed off but I was going through other things so I said, 'Who cares about $5 000? $5 000.' So I just let it go.
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Personal property

Property remaining outside of jail

Another area of legal need that seemed to arise in the early stages of people's incarceration was around personal property, which is left outside of jail. As noted above, incarceration is not always expected. Consequently, prisoners may not have made arrangements regarding their personal property and valuables:


    They lose all their property because they don't get in touch with the real estate agent. It all goes into storage for the period of time; they can't get it out, there's no access to money to get it out, they lose everything. So they actually come out of jail, no kids, no house, no furniture, no nothing because they didn't believe they'd be incarcerated anyway.
— SAAP worker, urban area

Assistance with retrieving and storing belongings can be obtained through family and friends, prison chaplains and Prisoners' Aid Association (PAA),27 although the latter can recover and store only small amounts of personal belongings from DOH property. If an inmate leaves personal belongings in their DOH property, DOH will place any valuable belongings into storage for 30 days. After this period, DOH can sell these goods at public auction. Any proceeds from the sale of the goods will be used to pay for the cost of removing and storing these goods. Any remaining money will be credited to the tenant's rental account (NSW DOH, 2006).

The placement and care of pets is another issue faced by some people going into custody. This escalated into a legal issue for one inmate, when an animal welfare organisation took possession of his pet. Because the organisation could not dispose of the animal without his consent, they had to house it. The inmate was then liable for the cost of care for the animal.


    We had one guy who wouldn't give the animal up and that's had massive legal implications for [him]. The owner was actually getting a bill to have the animal housed there … If he was going to get out and get the animal back, he would have had to pay that bill first before he could get the animal back.
— DCS welfare officer, urban prison

Personal documentation

Inmates need identification and other documentation upon release to access housing and Medicare, to secure social security benefits and other entitlements, to open bank accounts and to generally re-establish life after custody (Borzycki, 2005, p. 35).

However, consistent with earlier research (Galtos & Golledge, 2006, p. 21; Baldry et al., 2003; Borzycki & Baldry, 2003; and Ogilvie, 2001, p. 3; NSW Legislative Council, 2000) a number of inmates interviewed for this study or known to stakeholders (e.g. parole officers) had lost documents or had no knowledge of their whereabouts:


    I just lost everything, I have nothing at all … all my personal items, all my photos, all my paperwork, everything. All my ID, I have nothing at all. I have the clothes that I was arrested in and that's all I have.
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

As will be discussed in Chapter 6, the often transitory and chaotic lifestyles of people who come to prison mean that such problems are not uncommon.

Property taken into custody

An issue also arose concerning what happens to property that inmates have with them when they are arrested or when they are put in a cell. There were some examples in the interviews of such property going missing in police custody.


    Another area that I get involved in is police matters, involving property mainly. Money that's missing. Property that's being held by the police like clothing and stuff like that. The court case is finished so it can't be used as an argument that it's needed for evidence. I'm currently in discussions with 'S' police station for $1 400 that's gone missing.
— Official Visitor, urban prison

Some interviewees reported personal property that they had with them in prison going missing, particularly when they were being transported from one correctional centre to another or when they were released from custody directly from court. The type of property at issue may include a television or walkman, CDs or tapes, an electric jug or sandwich maker, books, toiletries, legal papers and documents and the like, which inmates may keep in their cells:

    I think their biggest issue for them [is] about going to court, leaving all their possessions behind at the jail, and they'll often lose their property.
— Non-custodial staff manager, rural prison

PAA informed us that if the property has been formally recorded, inmates could make a claim for compensation for the property lost. However, in some cases it can be difficult to trace and retrieve property that has gone missing (particularly when property has not been not recorded):

    …'Me cellmate packed up me gear' and you contact the reception room at the jail and they say 'Oh no. We haven't got any of his property.' … So it all ends up being a bit in limbo.
— Prisoners' Aid Association

Social security

On entry into prison

In 2003 Homersham and Grasevski reported that over 50 per cent of customers incurred a Centrelink28 debt on entry into custody (2003, p. 1). However the introduction of a Centrelink/DCS Program Protocol Agreement in November 2003 has resulted in reductions of debt incurred by prisoners (NSW DCS, 2006e). Under this agreement, DCS reception officers notify Centrelink when an inmate is received into prison custody, so that any social security payments being received by that inmate can be suspended. Indeed, the majority of inmates and ex-prisoners interviewed for this study reported having no social security debt because of this process. However, one homelessness worker interviewed for this study was of the opinion that inmates could slip through this notification system:


    Now there are supposed to be systems in place to make sure that happens so they don't come out with a whopping great Centrelink bill that they have to repay because they've been collecting benefits while they have been in prison. But frequently it just somehow doesn't manage to happen either.
— Homelessness worker, urban area

Forty-one inmates and ex-prisoners interviewed for this study reported that they had been receiving Centrelink payments either before they entered prison or since they had left. Centrelink recipients are supposed to inform Centrelink if there is a change in circumstances, including when they are incarcerated (Welfare Rights Centre, 2007, ch. 6, s. 2). However, a small number of inmates interviewed for this study said that when they came into prison, they had been overpaid benefits because they had not informed Centrelink.

Some inmates admitted they had deliberately omitted informing Centrelink of their incarceration so that they had money to buy items such as televisions or other personal items for their stay in prison:


    They asked me. I actually lied and said I wasn't on the pension. So I actually got away with a couple of payments. They sent me two cheques, so I had another grand. That's how I bought my TV and all that … I'm meant to pay it back when I get out.
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Needless to say, inmates accruing Centrelink debt have to pay it back once they leave prison. One legal service provider suggested that people on the Disability Support Pension (DSP) seemed to be particularly vulnerable to overpayment when they go into prison because they do not have as many obligations associated with their pension that they could breach when they go to jail. This is significant because payments are usually stopped when a person breaches their conditions, reducing the level of debt that may accumulate. For example, a person on a Newstart payment may be required to enter into an 'Activity Agreement' with Centrelink and look for work or undertake other activities (Welfare Rights, 2007, ch. 17, s. 5). Because imprisonment will mean they cannot meet such an obligation, there is a greater likelihood that Centrelink will quickly discover the person is in prison. As stakeholders commented:

    Depending on what type of payment people are on … If people are on a disability pension, it might go on for months before it's noticed. It might be that it's detected through a data match; it might be that a payment's cancelled because the person didn't respond to a letter that was sent to them. That could go on potentially for a year, a long time.
— Caseworkers, Welfare Rights Centre

On release from prison

In their 2003 study Homersham and Grasevski also identified prisoners being released out of Centrelink business hours and their lack of identification as barriers to their obtaining and staying on social security benefits (p. 1). However, under the Program Protocol agreement mentioned above, Centrelink now provides an outreach service, in a number of (mainly urban) jails, to prisoners about to exit prison (NSW DCS, 2006e). This service, the Centrelink Prison Servicing Unit, organises their first payment when they leave, determines what types of benefits are appropriate once they are out, and assists prisoners to manage and repay any debts to Centrelink, (Barry, 2004, p. 913). Arrangements are also made for inmates to receive their first payment at the jail on release, so they do not need to go to the Centrelink office that day. Prisoners who are eligible for other Centrelink benefits, who have been incarcerated for more than 14 days and who are in severe financial hardship are also eligible to apply for a one-off crisis payment from Centrelink (NSW DCS, 2006c, s. 7.14). Centrelink outreach workers also arrange for inmates to receive this on release.

In our study a stakeholder suggested that recent national changes in social security eligibility could have consequences for people moving through the corrections system. For example, those people who had been receiving the DSP or a parenting payment prior to incarceration may be required to move upon release to Newstart, which involves more onerous obligations. In addition, in reapplying for a DSP, a person must re-establish their eligibility, which might be difficult if they have been in prison and do not have the medical evidence to prove that they have a disability.


    A fellow who was on a Disability Pension for years … he went to jail for six months and then came out on parole, and Centrelink basically said, 'Because you've been in custody, we've now got to go through the process of finding you eligible for Disability Pension again. In the meantime we'll put you on Newstart'. So it was a lower amount of money, he had to do a lot more to get it. The work diaries … he didn't have the cognitive skills to do it.
— Probation and parole unit leader, rural area

Centrelink does provide ex-prisoners a two-week grace period in which they can prove their eligibility for these payments and not have to adhere to the Newstart work requirements (Manager, Centrelink). However concern was raised that even ex-prisoners eligible for Newstart would have problems adhering to the obligations when they were first released:

    And a lot of people just out aren't ready to go and do job contacts and fill out 'preparing for work' agreements … So I think most recently released people would probably need a little bit more quiet time.
— Caseworkers, Welfare Rights Centre

Debt

Virtually all prisoners interviewed for this study indicated that they were in debt. Some debts pre-dated their incarceration while other debts were accumulated (and were still accumulating) during their jail time. As well as debts owed to the DOH and Centrelink, prisoners reported owing debts to wide a variety of other creditors:


    Well there might be the illicit side of things, so their gambling and drug habit and that sort of thing … And then there's just debt to credit agencies: you know bought a motorbike, can't pay it off … sometimes it can be personal, you know, family … Roads and Traffic Authority (RTA), heaps of debt for traffic infringements and that sort of thing … debt to housing
— DCS policy officer, head office
    I owe a lot of money to different places … A lot of telephone debts … house phone, electric bill; I had an accident and I had to [buy] a car off another person.
— Karla, female remandee, minimum security, 25–34 years, NESB, urban prison

There were also inmates who reported owing money to the Child Support Agency (CSA) as a result of unpaid child support.

    They said that I owe $500 or something you know, so that must have been some period of time when I was in jail, you know. I don't know where it came from, but anyway I got letters from the child custody agency or something. It said that I owe $528 or some and to repay it.
— Rex, male ex-prisoner, 35+ years, non-Aboriginal, urban area

On a more informal level, many inmates also owed money to family, friends and drug dealers:

    Oh yeah, I still got debt today … Yep, up to my eyeballs … Just drug debt … I was selling a lot of gear for them and I started using more than what I was selling, getting meself into a hole and yeah, it's a bugger. I wish I never touched bloody drugs ever mate.
— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

These observations are consistent with earlier literature, which identified the high level of debt amongst prisoners. In 1999 the Queensland PLS undertook research on the extent of indebtedness in the prison population and its effects on the families of prisoners and the wider community (Stringer, 1999). Prisoners sampled for the study had a range of debts relating to cars, furniture, houses, as well as for legal fees, debts to government (e.g. housing and Centrelink) and drug related debts (Stringer, 1999, p. 1). The authors reported that 49 per cent of the respondents to the prisoner questionnaire indicated that they had committed an offence to repay a debt (p. 10). Baldry et al. (2003) found that 51 per cent of the ex-prisoners she interviewed had a debt of some sort. Debt, among other factors was associated with being more likely to return to prison (Baldry et al., 2003, p. 14).

As well as these more general debts there are two other common sources of debt for prisoners and those recently released from jail. These are the requirement for some prisoners to pay victims compensation restitution, and fines (including court costs).

Victims compensation

Under the Victims Support and Rehabilitation Act1996 (NSW), victims of violent offences can be awarded compensation of between $7 500 and $50 000. While the award is paid out of the Victims Compensation Fund, funded by the NSW Treasury, an inmate convicted of the offence which caused the injury, is liable to repay the Fund for all or some of the compensation paid to their victim (Victims Services NSW, 2007a). In a review of post-release services for Australian prisoners, Borzycki (2005) noted that 'prisoners can exit custody with already accumulated debt, and because they are unable to access emergency support or secure a source of income, may be unable to pay any justice system mandated restitution' (i.e. victims compensation restitution) (p. 35). In our study this was identified as another significant source of debt for some inmates:


    Oh, actually I owe other money, that's right, for a compensation claim. That fellow, the two blokes I stabbed, well one of them got a claim for $13 210.
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Inmates may not receive their notice to pay this money or even be aware that this debt exists, until they are released from jail:

    Or people that have done armed robberies. They'll do their jail and they come out and then the victims tribunal gets a hold of them and then they're hit for, you know, five, ten, fifteen, twenty, twenty-five thousand dollars.
— Probation and parole officer, urban area

This debt can be a considerable additional burden to prisoners who are trying to re-establish life after custody.

Victims compensation restitution is over and above the State Victims Compensation Levy, which all offenders who are convicted of an offence that is punishable by imprisonment are liable to pay (Victims Services, 2007b). The DCS Operations Procedures Manual indicates that the levy is $30 for a minor offence and $70 for a major offence (NSW DCS, 2006c). Many of our interviewees reported that the levy was taken out of their jail wages on a weekly basis, although they were not aware prior to going to jail that they would have to pay this levy:


    But they've been taking victim's compensation from me for six years now… from my jail account. OK. HOW DO YOU KNOW THAT'S BEING TAKEN … Because I got [a] print out of account balances. BUT YOU SAID THERE WERE NO VICTIMS THAT YOU'RE BEING … Everyone has to pay victims compensation levy whatever it's called. Everyone does.
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Fines

No home, no justice?, a study by the Foundation on the legal needs of homeless people, identified fine-related debt as a significant issue for people who are homeless. Given the documented associations between recently released prisoners and homelessness (Baldry et al., 2003; Forell et al., 2005, pp. 105–108), it might be expected that that fine-related debt is also an issue for this population. The findings from this study suggest that this is indeed the case. The vast majority of inmates and ex-prisoners in the current sample had received fines. Sources of these fines included traffic and transport fines, as well as court-imposed fines from current and past offences.


    Train ticket fines, fines from court when I'd been arrested for stealing and stuff like that … Court costs, from going to court … a lot of them were travelling on a train without a ticket, travelling on a train without my card with me.
— Kylie, female ex-prisoner, 25–34 years, non-Aboriginal, urban area

While one inmate estimated his fine debt was in the order of $49 000 [Matthew, male parolee, 25–34 years, non-Aboriginal, rural area], other inmates commonly reported SDRO debts of between $175 and $15 000. Inmates and stakeholders for this study reported that many of their debts remained unpaid whilst they were in prison and that as a result, prisoners continue to face this debt when they left prison. These fine debts can be considerable, in light of modest incomes:

    A single person gets $397 a fortnight. They get a fine on the train that's $200, so it's a week's pay … even when they go to court, and they've got fined $800 for disruptive behaviour … Well how are you going to pay a fine of $800 if you get $200 a week? And a lot of them don't do much about that when they're in jail … so they come back out with the debt.
— SAAP worker, urban area

When the Fines Act 1996 (NSW) came into operation, prisoners were no longer able to 'cut-out' their fines while serving time for other offences. 'Cutting out' fines involved reducing the fine liability by say, $100, for each day in custody. Without this option, prisoners often leave jail still owing considerable amounts of money for unpaid fines.

Further, failure to pay fines may lead to cancellation of a person's driver's license. Briefly, when outstanding fines remain unpaid, the SDRO instructs the RTA to suspend or cancel a person's driver's license until they pay the outstanding debt. This can add to the challenge of gaining employment and generally re-establishing life after custody (Galtos & Golledge, 2006, p. 21). Many inmates in this study reported that their licenses had been cancelled as a result of outstanding fines, for example:


    I was over the speed limit 15kms, and it cost me $175 and I never paid it … I just couldn't. At the time I wasn't working … so I let it go. Then they cancelled me licence.
— Dan, male sentenced prisoner, 35+ years, Aboriginal, rural prison

It was also suggested in our interviews that some inmates were not aware that their licence had been cancelled whilst they were in prison. This consequently places inmates at risk of re-offending and/or breaching their parole if they drive a vehicle unlicensed after they are released from prison.

    This is why I've been coming to jail for losing my licence. I was given a jail sentence and a fine, and then that was for not even a driving offence. I was given jail and a fine, and then when I, while I was in jail, because I didn't pay that fine, they cancelled my licence. But I never knew that my licence was cancelled.
— Jack, male remandee, medium security, age unknown, non-Aboriginal, urban prison

Many inmates were also not aware that they could have their license reinstated if they entered into a repayment plan with the SDRO.

Injury and illness in prison

Once an inmate has been received into prison, they come under the custodianship of DCS. As such, DCS owes a duty of care to prevent injury to inmates and staff arising, amongst other things, from self-harm, injury and industrial accidents (NSW DCS, 2006c, s. 8.26). Several DCS workers interviewed for this study acknowledged their duty of care obligations to inmates and gave examples such as placing inmates who were at risk of suicide under observation; placing into segregation inmates who had been at risk of harming other inmates; and, placing on protection inmates who had been under threat from other inmates. In the words of one welfare officer:


    I have a massive duty of care when they come to me. If they're coming to me about a problem with other inmates … Because if I put him back out in the yard and something happens to him … and let's go worse case scenario he gets killed, a coroner is going to turn around to me and say, 'He told you what the problem was. You put him back out there.' You know? So, and they don't like it. They don't like having to go in the observation cells until we can move them out but I don't have an option.
— DCS welfare officer, urban prison

However, a small number of examples were given where interviewees felt that DCS's duty of care obligations had been neglected. The issues related mainly to employment, health and assault from other inmates. For example, in relation to the provision of health care services in prison, many commented on the long delays in accessing a doctor, dentist or optometrist or having medical procedures whilst they were in prison:29

    I've got a lump on my leg, which my doctor thought was a melanoma, and it was supposed to be biopsied before I came in here. I've been waiting two months to have that done and they said that it could take a very long time for that to happen … the doctors have been great when you finally get to the [hospital]. But getting appointments has been very hard.
— Jane, female remandee, minimum security, 35+ years, non-Aboriginal, urban prison

One solicitor interviewed for this study provided an example of an inmate who had suffered from significant hearing loss as the result of a delay in seeing a specialist. This particular inmate did not see a specialist until after she had complained of ear infections on numerous occasions:

    Justice Health records show she presents multiple times with ear infections and …when she's referred to an Ear, Nose and Throat Doctor she's got significant permanent hearing loss.
— Legal Aid solicitor

A Legal Aid solicitor cited an example of an inmate who had incurred an injury whilst carrying out duties as part of their prison employment. The inmate had reportedly suffered from significant ongoing pain and, as a result, had sought legal advice from the solicitor about bringing action against DCS. The solicitor's assessment was that the case had merit.

Injury arising from assault

According to our interviewees assaults amongst inmates are commonplace (see also Chapter 9). Interviewees indicated that prison officers would respond to these assaults by taking inmates to receive medical treatment and by offering them the opportunity to have their attackers charged. However, a few inmates suggested that the incidence of assaults often arose because custodial officers had failed to adequately protect inmates from being assaulted or attacked by other inmates. One inmate specifically referred to an incident where he had been attacked in a prison yard, but claimed the surveillance camera that normally kept watch over this area was not facing the yard at the time of the incident (Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison).

Different sources of information about assault, injury and violence in prisons provide vastly different pictures of this issue. The Productivity Commission provides annual statistics on the incidence of reported assaults in Australian prisons. The reported rate of prisoner on prisoner assaults in NSW prisons in 2005–06 was 15 per cent of prisoners with a further 0.4 per cent for 'serious assault' (SCRGSP, 2007, Table 7A.14). However, while these statistics are provided each year, and are used as an official measure of prison safety, the reliability of these figures is uncertain, due to the likely underreporting of assault in prison (see Chapter 9 and Butler & Allnut, 2003).

Another indicator of the level of assault in prison is the IHS. This survey reported that twenty-eight (19%) women and 123 (18%) men had sustained at least one injury in the three months prior to the survey. The most common cause of injury for both sexes was being struck by an object or person (32% (women) and 42% (men) of all causes). Twenty-eight (90%) injuries reported by women and 125 (80%) reported by men had occurred in prison. Hospitalisation was required by three (10%) women and seven (4%) men (Butler & Milner, 2003, p. 68). Assaults are the second most common form of injury treated in NSW prison clinics (Schofield et al., 2006, p. 499).

A more recent survey of prisoner drug use and associated violence indicated that 21.4 per cent of inmates reported being assaulted by an inmate and nine per cent by a prison officer during their current prison term (down from 35.6% and 11.5% respectively in 1998). Most inmates reported having witnessed a fight (84.2%) during their current prison term and 36.8 per cent had witnessed more than five fights (Kevin, 2005, pp. 20–21).

In terms of sexual assault, 23 per cent of females and 15 per cent of males interviewed in the IHS reported that they were 'aware of sexual assaults in prison in the past twelve months'. However, as the question was deliberately asked so as not to relate to their own personal experiences, it is possible that a number of inmates' responses may be describing the same incidents (Butler & Milner, 2003, p. 134) and therefore these statistics may be subject to (at least) double counting. The Framework Report, which examined the needs of intellectually disabled offenders (Simpson et al., 2001) described threatened and actual physical and sexual violence as one of the main issues of concern to prisoners with intellectual disabilities. In an earlier survey of NSW prisoners aged 18–25, Heilpern (1998) identified a high incidence of sexual (and other) forms of abuse, especially amongst male respondents in NSW prisons.

Media

Three inmates in this study reported being concerned about the way in which their offence had been depicted by the media. One solicitor interviewed for this study provided an example of an inmate who had committed a highly publicised crime. She said that negative news articles had been published in the media about this inmate, who was concerned about the impact of the publication on her family outside prison:


    One girl … was notorious at the time of her offence and was all over the papers. Now, ten years later, heading towards her release [she] is concerned that the same information … will be reproduced in the papers on her release … she wanted advice on whether or not you could get those suppressed.
— Legal Aid solicitor

One of the issues raised by this solicitor's client was that the publication of details relating to her case impacted negatively on her interactions with other inmates. The law of defamation regulates the publication of material that can potentially damage a person's reputation. However, in NSW defamatory material can be published if it is true, particularly if this has been proved in court (Barry, 2004, p. 866). Accordingly, it appears that inmates with such issues would have difficulties pursuing this issue under defamation laws or preventing the publication of such stories in the media. As this solicitor stated:

    Because in the end I said, 'Look you know, you pleaded guilty. A lot of that information you gave in your own sentencing defence and these are the victims of the crime for which you are lawfully committed. If they want to give their story there's nothing you can do about that.'
— Legal Aid solicitor

Two other inmates from this study who had been arrested at the airport, expressed concern that their arrest had been televised on a reality television show:

    I asked him to intervene to stop a television program that showed my face in the airport … My lawyer … did nothing to stop the program … They even mentioned my full name … I live in Australia, I got kids here … I got a history here.
— Carlos, male sentenced prisoner on protection, 35+ years, NESB, rural prison

'Open justice' is the notion that the public be informed of legal issues arising in the criminal and civil courts, which allows the media to observe the majority of court proceedings (Barry, 2004). However if a publication in the media is found to interfere with the course of justice, it is held to be 'contempt of court', which is a punishable offence. Hence it is possible that the issue facing these two inmates is covered by sub judice rules in NSW, rules which prohibit the publication of material that could prejudice the outcome of a matter before the courts. This includes material that reveals photographs or drawings of the accused, evidence not shown before the court, confessions, or prior convictions or charges (Barry, 2004, p. 871).

Material that can be published includes the 'bare facts' of the case as well as a 'fair, accurate and contemporaneous' report of the court proceedings (Barry, 2004, p. 872). A case is affected by these rules once a person is arrested until their appeal rights are exhausted (Barry 2004, p. 871). However, the bare facts, the name of the person charged and what they have been charged with are not prohibited (Barry, 2004, p. 872). An analysis of whether these rules affected the above two interviewee's cases, should take into account whether the show went beyond the facts and whether a physical depiction (photographs, pictures or video footage) occurred before the offender's appeal rights were exhausted.

Immigration

Non-Australian citizens (including permanent residents) imprisoned in NSW may face the prospect of being deported upon release. Indeed, the Immigration Advice and Rights Centre (IARC, 2006) identified prisoners in five situations who are most commonly affected by the risk of deportation. These are:

  • people arrested on entering Australia (e.g. charged at the airport with a criminal offence)
  • people arrested while they hold a temporary visa in Australia (e.g. a tourist or overseas student arrested for a criminal offence)
  • people who overstay their visa (who are then unlawfully within Australia) and are then arrested
  • permanent residents of Australia who are convicted and sentenced to imprisonment (people who may have been in Australia for a long period and who may have family in Australia but who have not become an Australian citizen)
  • prisoners who are foreign nationals who have finished their sentence but do not have a travel document (e.g. their passport has expired/has been lost).

IARC (2006) advises that 'as a general rule, if the prisoner has committed an offence within ten years of being in Australia as a permanent resident, and is sentenced to a period of imprisonment of at least twelve months, the prisoner may be deported' (p. 3).

Several inmates that we interviewed, who were not Australian citizens, had been served a deportation notice by DIAC. Others had not received such formal notification but had concerns they would suffer a similar fate. Those inmates who had been living in Australia for many years or who had children and family here were particularly anxious about the prospect of being deported:


    They sent me a letter saying that due to your criminal conduct … I'm only a permanent resident. They were talking about cancellation of my visa. Now, I've got a wife and five kids as well and been in the country twenty two/twenty three years and they're still talking about deporting me.
— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area

Stakeholders also provided examples where inmates had been deported once their sentence had finished, despite having lived here for the majority of their life and having children or other family here.

    One Pacific Islander I had, he'd been here for over 20 years. He came here as a child. He'd married twice. He had something like ten kids. His mum and dad were here. They were legal but he never got around to it and they deported him back.
— Official Visitor, urban prison

It has been suggested that a recent decision regarding the cancellation of an offender's permanent visa in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 (20 December 2006), may impact on future decisions made by the DIAC regarding such visa cancellations. This case involved a permanent visa holder imprisoned in Australia having his visa cancelled despite having lived in Australia since he was three years old. In the decision, Allsop J held that the visa holder had been denied procedural fairness in relation to the cancellation of the visa because of his inability to get legal advice about the cancellation of the visa from prison. This decision has led the Department to revoke the cancellation of a number of permanent visas held by offenders (Irish, 2007, p. 5).

There were also cases in this study where the inmate actually wanted to be returned to their country of origin. Once sentenced, arrangements can also be made for sentenced inmates, who are nationals of countries with whom Australia has a prisoner transfer agreement, to be transferred to their country of origin to serve the remainder of their sentence (Cth AGD, 2006). One inmate who was currently on remand at the time of the interview discussed her wish to be transferred back to her country of origin after she had been sentenced:


    I want to try to … transfer, to have the rest [of my] time in [home country], in jail.
— Karla, female remandee, minimum security, 25–34 years, NESB, urban prison

Summary

As described above, prison inmates commonly face a range of civil law issues. Not only may inmates go to prison with outstanding debts, housing and social security issues, but their often sudden and relatively comprehensive removal from society, itself raises a raft of potential legal problems. Inmates have difficulties settling and/or meeting existing obligations, such as business or employment arrangements, debts and tenancies. In addition to the very practical barriers to settling their affairs, they may not know for how long they will be in prison, making pre-emptive action difficult, lest they be released. Finally, the experience of being incarcerated can lead to further civil law issues, claims for injury in prison, media-related legal issues such as defamation, the requirement to pay victims compensation restitution and immigration issues. The effect of incarceration can also lead to problems once prisoners leave prison such as discrimination in employment.

Family issues

As indicated in Chapter 2, while 59.2 per cent of inmates have never married (Corben, 2006a, p. 20), 47 per cent of male inmates and 57 per cent of female inmates completing the IHS reported having one or more children under the age of 16 (Butler & Milner, 2003, p. 28). DCS has recently begun registering the numbers of child visitors to correctional centres and their relationship to the prisoner they are visiting. Since January 2004, over 25 000 children were registered as visitors to NSW correctional centres, with 47 per cent of these child visitors aged under ten years and 65 per cent visiting a parent in custody (NSW DCS, 2005a, p. 24). These data highlight the number of children affected by having parents and other close relatives in custody. The sheer number of inmates who have partners and or children would suggest that there is potential for inmates (in the same or greater proportions to families outside the correctional system) to experience, while they are in custody, family law or care and protection issues relating to children. Similarly, the level of domestic violence experienced by prisoners, particularly women prisoners (see Chapter 2) would suggest this as another area of legal need.

Family law

Several inmates interviewed for our study reported having family law problems. Two inmates in our sample who were currently in prison reported going through divorces. However, overwhelmingly, family law problems related to access and residency of children. These appeared to occur whilst inmates were currently incarcerated as well as occurring after being released from prison. Approximately two-thirds of inmates and ex-prisoners interviewed for this study reported having children, although many did not have those children in their care at the time of arrest. Most male inmates with children (where those children were housed with family) said that the children were with the mother, while female inmates tended to have their children staying with extended family, often parents. In cases where children were placed with family, most inmates said they were satisfied with those arrangements in the circumstances:


    I was quite happy because [it's] better than my kids [going] to foster care.
— Pedro, male sentenced inmate, minimum security, 35+ years, NESB, urban prison

Arrangements for the care of children may predate imprisonment or may have been, as noted earlier, entered into once one parent had been taken into custody. A few stakeholders reported instances of inmates having existing family law matters when they were arrested which they continued to negotiate once they were remanded in prison:

    Often there are people [who] come into custody and they're in the midst of Family Court proceedings and there's a final hearing on the 11th of November and here they are in custody.
— Legal Aid solicitor

A number of interviewees also stated that inmates sometimes had difficulties accessing their children (by letter, telephone or by the children visiting the jail), as well as difficulties with access once they were released (see 'Accommodation post-release'):

    What I see quite often are things such as custody issues with children … Because they're quite powerless while they're inside. And if the partner doesn't want the kids to go to the jail to see dad …
—Probation and parole unit leader, rural area
    A lot of them didn't have access to their child or had access to their children on the outside but were using [drugs], so they didn't actually maintain their access. They go to jail, they dry out, they clean up and they really want to start that relationship again. But they can't because the person outside says, 'Well, you never saw them when you were out. You had your opportunity. You didn't stick to your access orders. That's the end of it.'
— CEO, Shine For Kids

Other examples were provided of partners outside moving house with the children and the incarcerated parent leaving prison, not knowing where their children were:

    Some guys have gone in and the partner has moved. It gave them the opportunity to move with the kids, so the guy doesn't know where they are.
— Manager, Centrelink

There were also instances of where an inmate had previously had custody of their children, but had lost custody when they were arrested and imprisoned. For example:

    I had custody of four of my children when I was on the outside … she then got custody of the children since then.
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

In a Canadian legal needs study, family law matters were identified by 70 per cent of prisoner interviewees as a critical area of legal need (Lajeunesse, 2002, p. 2). There is also an increasing amount of Australian research on the issues facing inmates and their families (see Flat Out & VACRO, 2006; Woodward, 2003; Lawrie, 2002; Brookes, 2000).

Substitute care for children

Care for children through DOCS was another legal issue encountered by inmates interviewed for this study, particularly when people, often women, are first incarcerated:


    Some of them might have just come in and their kids are taken, adopted, because there was no one. And so then they're freaking out because they don't know who the carer is, who's looking after them, what's happening with them. So that we contact DOCS to find out where the children are.
— Non-custodial staff member, Offender Services and Programs

Of inmate interviewees who had children, a small number reported that DOCS was involved in trying to place children with family members or into DOCS care itself when they came into prison:

    We were both arrested on serious charges, in custody with two kids out there … I was dealing with DOCS and going to court for the children to get them placed where I wanted them to be placed — with family, instead of going to foster care.
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

Once sentenced, inmates with families may continue to experience problems related to children in the care of DOCS. For example, inmates, DCS workers and other service providers reported that parents in prison who have children in DOCS care may have difficulties both negotiating access arrangements and in actually gaining access to the children:

    We contact DOCS in relation to see if they can have access visits while they're in custody … Sometimes DOCS will allow it and sometimes they'll say it's not allowed because it's not the best environment for children to come to.
— DCS client services officer, head office

Examples were given in our interviews of prisoners wishing to report matters to DOCS in situations, where he or she had concerns over the welfare of children in the care of partners or family members on the outside:

    Sometimes guys have concerns about the welfare of their children, if their partners are using on the outside and they don't know how the kids are or they haven't heard from them.
— Throughcare officer, rural prison

In circumstances when DOCS is removing a prisoners' children from an ex-partner who has custodial rights, DOCS must inform the inmate of the situation. There was a suggestion, however, that under these circumstances, the incarcerated parent has little involvement in the process:

    The men, in particular, they're not really seen as part of the process. Because the kids could be living with mum, so it could be mum that they are removing the kids from and dad's in custody. If DOCS knows where dad is … they have to notify [him] what's going on and send him all the paperwork.
— DCS welfare officer, urban prison

Research undertaken concerning the children of imprisoned parents by the Children of Prisoners Support Group (now Shine for Kids), touched in part on the capacity of parents who have children in substitute care to participate in legal processes related to care proceedings (Brookes, 2000). The survey of 200 imprisoned parents reported that 16 respondents had children in substitute care (i.e. foster care, children's homes, etc.). In half of these cases, the children were moved into care after the parent went to prison (Brookes, 2000, p. 17). Most of these children were made Wards of State or were committed to the care of a 'private person' (p. 18).

It is noteworthy, that the parents whose children had been taken into care since going into custody, appeared to have more involvement in the legal proceedings concerning their children's care than the parents whose children had been in care before they went into custody. The survey found that the former group were more likely to know that their children had been before the court (for care proceedings), had been present at the court hearing and had a lawyer at the court hearing (Brookes, 2000, p. 18).

Custody issues and housing

From our interviews, it also appeared that inmates had difficulties regaining custody of or contact with their children once they had been released. Our interviewees indicated that contributing to these difficulties were issues such as inmates not being able to find suitable accommodation and the children having been removed from their parents for long periods:


    Without stable accommodation you're never going to get your kids, and getting stable accommodation in itself, is a really tough process. So its one of those chicken or the egg things in that no one's going to give you accommodation to cater for your three kids if your three kids aren't in your care. That's one of the issues this one woman is facing at the moment … I've also been told by a legal representative that she's not going to get the kids back now because they haven't been in her care for like two or three years and in fact giving her kids back will be too destabilising for them.
— Project workers, ex-prisoner mentoring program

Baldry et al. (2003) examined whether the availability of post release housing made any difference to recidivism levels and the chance of inmates returning to prison. They identified sole parents (usually women) as being particularly disadvantaged in securing housing for themselves and their children (p. 25). Ogilvie (2001) also described released women's vulnerability to returning to violent partners in order to house themselves and their children (p. 4). One social worker interviewed for this study reported that housing debts could also prevent ex-prisoners from being rehoused and regaining custody of their children:

    Now what we're seeing with that is, they want to get settled and housed before they get their children back. That's really difficult because most of them have debts with DOH, are on the TICA list.30
— SAAP worker, urban area

Summary

Accordingly, whilst some data indicates that more than half of the inmates in jail have never been married, many inmates do have children. As well as pre-existing legal issues arising between partners and concerning the care of children, our data suggests that the incarceration of a parent or partner may itself precipitate family law and child custody issues. As well as the acute child custody issues that may arise upon a prisoner's arrest, inmates may need assistance with family related issues throughout their custody and upon release. Post-release child custody issues may also be affected by housing difficulties.

Conclusion

Interviewees in our study suggested that although inmates come into prison with pre-existing civil law issues (e.g. debt, fines and housing), family matters and, of course, their criminal legal needs, there is also a range of legal issues experienced by inmates and ex-prisoners that arise from imprisonment. The interruption to a person's life brought about by sudden incarceration affects inmates' housing, child care arrangements, personal effects, employment, financial obligations and social security payments.

Certain legal issues may also arise as a direct outcome of imprisonment such as prison disciplinary action, deportation or discrimination. Once released, ex-prisoners report problems with parole, policing, warrants and discrimination, as well as those problems that remain from before or during their incarceration. It appears that the confluence of legal problems on release from jail may affect inmates' capacity to successfully reintegrate into the community.

These findings suggest that inmates not only need access to criminal law assistance while in prison, but also to assistance with a broad range of civil and family law matters. Indeed the provision of legal assistance in jail may have benefits well beyond an inmate's term in prison. So what are the opportunities and mechanisms available to inmates whilst in prison? Given the very literal barriers and restrictions imprisonment imposes on inmates, how do inmates address existing legal problems and prevent other significant problems from occurring? Chapter 5 will describe the opportunities for inmates to get legal assistance and to participate in relevant legal processes — criminal, civil and family. It will also summarise some of the immediate barriers encountered by our interviewees in using these mechanisms.



We did not, as a matter of course, ask inmates what their offences were. The information was offered on a voluntary basis and consequently we were not aware of the offences of all the interviewed prisoners and ex-prisoners.
A small number of prisoners had been convicted on one set of charges and were awaiting the outcome of others.
Section 36 of the Bail Act.
See also `Adler risks privileges over homework lesson`, June 23, 2005, www.smh.com.au (accessed 22 May 2007), in which the Minister for Justice John Hatzistergos states, in response to charges being laid against Rodney Adler for sending letters to friends and associates from prison containing instructions and requests for information about business activities, `We have never tolerated it in the past and we can`t do it on this occasion`.
Two inmates also reported that they had faced discrimination in obtaining insurance and renting a property.
PAA is an independent organisation funded by DCS that assists with the retrieval and storage of personal property of people who are in prison. They also assist inmates conduct financial transactions whilst inside.
Centrelink is the agency that administers social security payments in Australia.
Health care services in prison are provided by Justice Health. Prisoners do not have access to Medicare when incarcerated.
TICA refers to the TICA Default Tenancy Control System, an Australian default tenancy database that provides information to property owners about potential tenants. See www.tica.com.au/iabout.htm.

22  We did not, as a matter of course, ask inmates what their offences were. The information was offered on a voluntary basis and consequently we were not aware of the offences of all the interviewed prisoners and ex-prisoners.
23  A small number of prisoners had been convicted on one set of charges and were awaiting the outcome of others.
24  Section 36 of the Bail Act.
25  See also `Adler risks privileges over homework lesson`, June 23, 2005, www.smh.com.au (accessed 22 May 2007), in which the Minister for Justice John Hatzistergos states, in response to charges being laid against Rodney Adler for sending letters to friends and associates from prison containing instructions and requests for information about business activities, `We have never tolerated it in the past and we can`t do it on this occasion`.
26  Two inmates also reported that they had faced discrimination in obtaining insurance and renting a property.
27  PAA is an independent organisation funded by DCS that assists with the retrieval and storage of personal property of people who are in prison. They also assist inmates conduct financial transactions whilst inside.
28  Centrelink is the agency that administers social security payments in Australia.
29  Health care services in prison are provided by Justice Health. Prisoners do not have access to Medicare when incarcerated.
30  TICA refers to the TICA Default Tenancy Control System, an Australian default tenancy database that provides information to property owners about potential tenants. See www.tica.com.au/iabout.htm.


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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