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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 8. Pathways and Intermediaries


As detailed in Chapters 6 and 7, inmates' capacity to access justice is affected not only by their own personal resources and histories but also by the systemic environment that governs inmates' daily lives and the generation and resolution of their legal needs. A third factor which our analysis identified as affecting inmates' access to legal help, is the route that inmates must take to secure this help. In the absence of an ability to act directly, inmates rely to a high degree on other people either to act on their behalf or to be a relay point in the process of preventing, identifying or addressing a legal problem. In other words, many of the processes that constitute the resolution of legal issues for inmates are mediated.53 Our analysis revealed that there are a number of features of intermediaries and mediated processes that affect inmates' ability to resolve their legal needs. The following chapter will examine the role of intermediaries in inmates' pathways to legal assistance and identify the features which give rise to the barriers which impede their access to justice.

Why are intermediaries necessary?

According to the data we collected for this study, there are three main reasons why many processes that, in other circumstances would not require intermediaries, do in the case of prisoners. The first and most obvious reason is the very nature of imprisonment. Prison, by definition, physically prevents the person from freely accessing the world outside the prison precinct. Consequently, inmates cannot autonomously, for example, retrieve their property from their leased house, visit a lawyer, or go into a Centrelink office. Restrictions also exist on movement within prisons whereby certain inmates may not have direct access to particular areas (such as the prison library) or may do so only at certain times. Accordingly, in these cases, an intermediary is used simply because the inmate cannot physically be present.

Secondly, prison inmates may also need to go through a third party because it is part of a procedure set up by an agency, most commonly DCS. For example, as outlined earlier in Chapter 5, the procedure for having a legal visit with the PLS visiting legal advice service requires that a DCS officer place the inmate's name (at the inmate's request) in a book. The inmate is then obliged to use an intermediary to take one step closer to obtaining legal advice because that is how that particular process is structured within the prison setting.

Thirdly, prison inmates may depend on someone else to carry out tasks related to their legal needs because they lack, or feel they lack, the requisite skill(s) themselves. As demonstrated by the list of legal issues faced by inmates given in Chapter 4, prisoners can have substantial and complex legal problems so that understanding the documents, processes and consequences associated with their legal matters is not always straightforward. Chapter 6 also identified that prisoners' ability to understand legal and administrative documents and processes may be compromised by cognitive impairment, poor language proficiency, limited education and/or illiteracy. Further, legal knowledge is highly specialised and complex and even people without a definable disability (but who are not legally trained) may have difficulty fully comprehending this type of information (John Howard, Society of Canada, 1996, Part II). Consequently, inmates may approach their peers, their lawyer, correctional officers, or other non-legally trained staff to assist them. Accordingly, intermediaries may become a necessary part of inmates' attempts to address their legal issues, because legal processes and documents may be beyond (for whatever reason) their own comprehension.

Who are intermediaries and what do they do?

The following quotes give an indication of the range of people who function as intermediaries and the tasks they perform in assisting inmates with their legal issues:

1. Custodial officers:

    Inmates may come [to you and] see the psychologist or psychiatrist, because many a times, the court wishes to get a report from these professionals. And then the inmates don't know who to turn to so they come to us and then we then steer them in the right direction. We actually make phone calls to our psychologist, say, 'Such and such needs a report for court, how can he go about it?' And then they then have an interview with the person and take it from there. So many times we are the mediators in between, before they go on to the professionals.
— Custodial officer, urban prison

2. Welfare officers:
    So I spend a great deal of time contacting solicitors and saying, 'What's happening?', 'These are the concerns that the inmates have, these are the questions that the inmate has and when are you coming to see them?' You are very much acting as that middle person.
— DCS welfare officers, urban prison

3. Library/education staff:
    [SO, WE'VE GOT AN INMATE THAT'S IN SAY, BATHURST, WHO HAS A LEGAL PROBLEM. WHAT DO THEY DO? HOW DOES THE LIBRARY ASSIST THEM?]

    Well, they would talk to, generally the education staff. The education staff would ask what the query was. They would go to the intranet site, click on Forms. Fill out the form for the person. That would then go through as an email to MRRC. The people at MRRC look at it. Produce whatever information it is they have requested and depending on the urgency and what it is, they would either fax it or post it to the education staff and they would give it to the inmate. So, it is mediated through staff.

— DCS library staff

4. Inmate peers:
    But you do hear a lot of talk about cases, because women, inmates in general, can be so confused and overwrought with the situation that they want advice. 'Can you please read my brief, I don't know what the hell it says, where do I go from here?'
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

5. Friends:
    I rang the friend of the family. Yeah and … he got in touch with that lawyer and the lawyer got in touch with Legal Aid and … so on, you know. And I got things moving.
— Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison

The quotes above demonstrate who, according to our interviewees perform the role of intermediary. Intermediaries along the pathways to legal assistance could be broadly classified into two groups: professional and personal. The former refers to people who, as part of their job, act as intermediaries for inmates. Examples include DCS officers, prison chaplains, parole officers or workers in government agencies. Note that 'professional' here refers merely to the fact that they become intermediaries for inmates through their profession not as an indicator of legal expertise. The second group, on the other hand, become intermediaries through personal contact only; essentially friends, family or inmate peers. Details of how both of these groups function in this role are discussed below.

Professional intermediaries

According to our data, many people who come into contact with inmates and ex-inmates through their jobs perform an intermediary role in inmates' pursuit of legal assistance. Some or all of the tasks they perform as an intermediary may or may not be a part of their official role. 'Professional' intermediaries can be further divided into DCS custodial staff, DCS non-custodial staff and non-DCS workers located either in prison or off-site.

DCS custodial staff

Custodial staff who act as intermediaries include Correctional Officers, Case Officers, Wing Officers and Area Managers. This distinguishes them from non-custodial staff (discussed in greater detail below), which are not responsible for the security of the prison.54 Staff in these positions have varying degrees of seniority and contact with inmates (for example, the area manager has an office outside the wing but will still have in-person contact with inmates whereas wing officers have continuous contacts with inmates in their wing). The current position description for a correctional officer indicates that all have a common responsibility for the supervision, security and safety of inmates and staff (NSW DCS, 2007). Officers may also be involved in inmate 'case management' (see Glossary for definition and 'Prison staffing' in Chapter 2).

Although assisting prisoners with legal problems is not a specifically designated task of custodial officers, it became clear in our interviews that these workers performed many functions along inmates' pathways to legal assistance. According to our interviewees, the types of tasks undertaken by custodial staff to facilitate legal assistance included: processing mail (including legal mail); contacting lawyers to be placed onto inmates' phone cards; writing inmates' names in the Legal Aid book; supplying application forms for Legal Aid; paging inmates to Legal Aid appointments; arranging telephone calls to inmates' lawyers when phone cards are not yet operational; giving inmates information about when they are due in court; retrieving legal paperwork from property storage; supplying bail and other application forms; making bail calls;55 making referrals to other DCS staff (such as parole and welfare) regarding legal problems; assisting inmates in filling out legal and administrative forms; assisting inmates to understand legal documents or orders; checking for outstanding warrants; and documenting and investigating complaints. This rather extensive list demonstrates that custodial staff are integral to the pathways inmates use to pursue criminal, civil and family law matters.

The degree to which any one role or individual provides these types of assistance varies across people and correctional centres. However, as the following quotes illustrate, they are undoubtedly part of the day-to-day undertakings of custodial staff.

    … if they wish to lodge an appeal and they get the form, some of them have difficulty comprehending the forms … I suppose they may get a little bit daunted that they have to fill out this stuff. But usually they only have to fill certain bits and pieces, you know. So I can guide them through that, you know, filling out the form.
— Custodial officer, urban prison
    You might need paperwork for an appeal. Right, you have to contact Records and get the appropriate one down. You might need to make a Legal Aid appointment for them, which is made up in Education, which is just a phone call. They might need to see Parole. They can't go up if they are on remand or high protection. The Parole has to come down. They might need some paperwork out of their property, which is sealed away. And things like that. What else? Make appointments for Parole to interview them. Because Probation and Parole has a lot with sentencing and what classification they're going to be if they get sentenced. Sometimes they don't even know when they're going back to court. Just might tell them it's a week from today or I don't know, it's not on the computer.
— Custodial manager, rural prison

DCS non-custodial staff

The second group of 'professional' intermediaries are those DCS workers who do not have custodial duties. This would include: welfare officers, health and allied health professionals, prison reception and screening staff, probation and parole officers, education staff, library staff, Throughcare specialists, and Indigenous support officers.

As with the custodial staff, non-custodial DCS staff perform a range of tasks that make them intermediaries for inmates seeking legal assistance. Indeed it appeared (as will be discussed in detail later in this chapter) that there was a significant degree of overlap in the tasks performed by this group with those performed by custodial officers, including assisting inmates with forms and understanding legal documents and processes, and facilitating telephone calls with lawyers. These workers, however, and especially welfare officers, also performed a range of other 'intermediary' tasks including: liaising between the inmate and government departments such as DOH, DOCS, CSA, Centrelink, SDRO, DIAC and non-government organisations such as the RSPCA, crisis accommodation services, and interpreter services on matters associated with their legal issues. Librarians also process inmates' legal information requests (see Chapter 5), which are often related to the relevant legislation and case law.

Again, the degree to which any one role or individual provides these types of assistance varies across people and correctional centres. As mentioned earlier, one prison in our sample did not have a dedicated welfare position – instead the role was assigned to custodial officers. However, the breadth and frequency with which non-custodial staff in other jails deal with inmates' legal issues is apparent in the following quotes:

    So the best way to describe the welfare [officer] position I think, is [that] it's an advocate role and a link between inside the jail and outside the jail. When I say it's an advocacy role, you literally are advocating for them on behalf of everything. You might advocate with the officers, to get something done. You are advocating with the agencies, whether it be government or non-government, with their families, with the system.
— DCS welfare officer, urban prison
    We don't give advice. We only give information. That's a very clear distinction that we have to make in any sort of legal library, is that you do not give advice. You simply provide the information and then they are to take that and speak to their legal advisor.
— DCS library staff
    … well I deal with probationers and with parolees … I interview them initially and explain their bond conditions or their parole conditions to them and then talk about their issues, whatever issues they're facing, especially those that contribute to their offending behaviour. And we try and address those issues by sending them off to relevant services, whatever services are around. So, yeah, I just sort of gather information and then pass people on.
— Probation and parole officer, urban area

It is interesting to note that in some of these excerpts staff members downplay their role in terms of inmates' legal needs. However, it is also apparent from these quotes that they are an important link in the chain and if, for no other reason than this, they constitute part of the pathway to legal assistance.

Non-DCS staff

Many of the professionals who perform intermediate roles helping inmates address their legal needs, were not directly employed by DCS, but were from other government departments or non-government agencies. Some are situated on-site at the prison for at least part of the time (such as chaplains and official visitors) and others are located elsewhere. The government departments from which inmates obtain assistance with their legal problems include DOH, DOCS, CSA, Centrelink and SDRO. Examples of the non-government agencies include chaplains, Prisoners Aid Association, CRC, Shine for Kids, homelessness and other welfare services.

Our interviews indicated that non-DCS staff also may facilitate calls that inmates cannot make with their own phone cards and help with form completion. Other intermediary tasks associated with inmates' legal needs performed by non-DCS staff described by our interviewees include: collecting and storing personal belongings from rental accommodation, conducting financial transactions on behalf of inmates, helping parolees meet their parole obligations, supporting inmates at hearings, advocating on behalf of inmates with officers, putting ex-inmates in contact with legal services, supporting access to children, and writing letters in support of parole applications. The following excerpts again reflect the wide range of activities covered by this group of intermediaries:

    They haven't been able to go back and get their property, you know, who's got their keys? Where's their ID? … The Centrelink payment's just about due and it's run out… So I know at times the chaplain down there … we try and leave him with [protection wing] but we'd be in and out there during the week. He's often going to the officers and saying, 'Well look, this fellow needs this fixed up.' and trying to get the officers to do it.
— Chaplain, correctional centre
    Prisoners Aid has a couple of roles with inmates. Firstly, we help out people that are in custody. Which is either collecting or storing their property whether that is from police or hostels or private rental premises. And we also help inmates out with financial transactions like when they first come in. The jail have got money in a Commonwealth account or something and we transfer their prison cash to use for buy-ups and things such as that. We also do emergency financial assistance to ex-offenders and families of inmates.
— Prisoners Aid Association
    And I know it's not law directly, but it's the same with Probation and Parole when we write reports for people for their parole. I always send a copy to the parole board and the parole officer, so often they will look at that and see that the person has got all the supports in place and write a more favourable report. So it can have a direct impact on whether they do get their parole or not.
— Staff member, CRC

Personal intermediaries

Personal intermediaries form the other major cluster of people who mediate between inmates and their attempts to address their legal needs. Two major sub-groups comprise the personal intermediaries group, namely: other inmates, friends or family. Although clearly under no official obligation to assist inmates, these people emerged as significant participants in inmates' pathways to legal assistance.

Other inmates

Despite being in the same environment and subject to the same strictures as inmates needing help, inmate peers were cited by our interviewees as frequently used means of reaching or obtaining assistance with legal issues. In general this took the form of advice and information. Inmates sought information, advice and assistance from other inmates about: sentencing, prison processes, appeals, lawyers, government processes, court processes, reading legal documents, writing letters, and assisting with library services. A prison may also have an Inmate Development Committee (IDC) comprised of inmate delegates who advocate on behalf of inmates within the prison on a range of matters which may include internal administrative issues.56 The following quotes are only a small sample of instances inmates recounted in which they had sought the assistance of their fellow inmates:

    Oh, just, you know, talking to other crims, their sentences, you know 'cause everyone says how long you doing and that. You find out whether they got Legal Aid and, you know, people have stories and everything of how they've been shafted, this happened, that happened.
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison
    [WHERE DO YOU GET YOUR LEGAL KNOWLEDGE FROM?]

    Sometimes from other inmates … there's a group of us that are always in and out and we look at other cases, other girls that have gotten sentenced you know. Like for my crime in particular I looked at other girls that are charged with it and I [ask], 'How did you go about it?'

— Liz, female remandee, maximum security, 25–34 years, Aboriginal, urban prison
    Well say traffic offences, [not sure I know] about traffic offences, so you can just say to someone, 'You ever had a traffic ticket?' They say 'Yeah.' And then you can discuss that. See in jail, it's funny, 'cause in jail … you sort of covered everything 'cause everyone's in there for everything.
— Calvin, male parolee, 35+ years, non-Aboriginal, rural area

It appears that inmates use each other to a significant degree when trying to get information about how to go about a legal process, what they may expect from it, or how to utilise the facilities and procedures of the prison when addressing their legal needs. Generally speaking, other inmates are a plentiful human resource. They are often willing and available to help another inmate with their legal issues.

Friends and family

A final group of intermediaries sourced through personal connections were friends and family. In obvious contrast to inmate peers, these people usually acted as a go-between the outside world and the inmates. Often inmates would receive advice, information or direct assistance from a friend or family member who had professional knowledge on a certain issue but who was assisting in an unofficial capacity. Friends and families acted as intermediaries on inmates' legal issues through: finding, securing, contacting and sometimes paying lawyers; undertaking legal transactions such as signing leases, continuing businesses, and paying outstanding bills or fines; acting under a power of attorney; contacting agencies to cancel or suspend services; and looking after children and pets. The following quotes demonstrate the range of tasks family and friends took on, on behalf of inmates.

    [HOW DID YOU GET THAT [POWER OF ATTORNEY]]?

    I just send a friend of mine to go to a post office and buy it, costs $18. And then she sent it in Express Post from the post office.

— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison
    I'm ringing the wife who has to ring the bloke at Canberra or Sydney wherever he is and say look me husband is trying to get hold of you.
— Matthew, male parolee, 24–36 years, non-Aboriginal, rural area
    … what I did was I talked to a friend of mine who I went to school with years ago. He works for the RTA … And he came in for NAIDOC Day last year … Yeah, I chatted with him, and that's how I got the information … He just said, 'Look, pay your fine … and you sit for the written test again.' And I go on a probationary licence for 12 months.
— Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison

In summary, inmates often use DCS and non-DC staff, fellow inmates and their friends and family for information and errands associated with their legal issues. Imprisonment, administrative procedures and personal skill sets may compel an inmate to use an intermediary along the pathway to legal assistance in circumstances where they would otherwise have relied upon themselves. Although this meant that inmates were enabled to address their legal issues due to the assistance provided by these people, the use of intermediaries brought with it a range of implications that sometimes hindered their access to justice from the prison setting. The remainder of this chapter will discuss these issues in detail.

How do intermediaries affect inmates addressing legal needs?

There was no doubt that having somebody to act on a prisoner's behalf, especially with tasks that occur outside of prison, was greatly valued by the inmates. The following quote is typical of how 'lucky' people felt to have others to call upon:

    I mean he had been in jail himself. So he knows what it is like and he knew what to do. I was lucky in that sense that he took care of everything … that would have been extra stress for me if we didn't have that communication every weekend. He was there from the word go.
— Stephanie, female sentenced inmate, maximum security, 25–34 years, Aboriginal, urban prison

Yet there were also instances where the use of an intermediary gave rise to barriers to obtaining legal assistance. Despite the variation in type and complexity of these mediated pathways and the range of people that acted as intermediaries (as demonstrated by the preceding discussion), according to our analysis the negative impacts of mediated pathways on inmates' access to justice had a number of common features. These could be summarised as:
  • difficulties identifying appropriate intermediaries and pathways to legal assistance
  • scope for discretion as to whether, and to what extent, assistance is given
  • delay involved in using intermediaries
  • risks associated with being dependent on a third party to obtain assistance with a legal problem.

Each of these aspects of the use of intermediaries along the pathways is discussed in turn below.

Identification of appropriate intermediaries and pathways to legal assistance

As the observations below indicate, one of the first issues confronting inmates when needing legal information and advice was how, once in prison, they were to obtain it. It seems that although it may be clear to the inmate that they need to go through a third party, there appeared to be a significant degree of confusion about who the correct third party should be. The following were typical descriptions of the difficulties inmates experienced in pursuing legal issues:

    … because you're not at liberty, the process is laborious, and the information is not available to you as to how to go about it in the first place. So a lot of inmates are just in the dark as to what their rights, obligations and responsibilities are.
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison
    [HAVE YOU SOUGHT ANY ADVICE ABOUT THOSE DEBTS?]

    No, 'cause I haven't got a clue who to call or what to do, all that sort of stuff. I mean, they don't tell you anything in this place. Just, what things you can access or, you know, how you go about doing things.

— Jane, female remandee, minimum security, 35+ years, non-Aboriginal, urban prison

Clearly, for Jane, the lack of information about who she needed to contact in order to deal with her debts meant she did not pursue her debt matters at all.

In general, however, there were two major elements which contributed to difficulties in identifying appropriate intermediaries: lack of information about pathways to legal assistance and a fragmentation of responsibility.

Lack of information about pathways to legal assistance

The first issue that seemed to emerge from the talk of people's confusion about where they should go for help is a claim of a lack of information about pathways to legal assistance. From our interviews with DCS staff, it does appear that some formal opportunities exist for inmates, especially those new to a facility, to find out where they may go for assistance. These include attending an induction process and being given a copy of the Inmate Handbook, a DCS publication.

    And the induction is something different again; it's not all one thing. Induction is the provision of information that people are required to have under legislation. So things about the rules of the centre … so we have things like inmate handbooks. We have a state-wide handbook … they should all have a local handbook.
— Non-custodial staff manager, urban prison

However, our interviewees indicated that, in practice, there was some variability as to whether prisoners could capitalise on those particular pathways to legal assistance. For example, a DCS staff member described a breakdown of the induction process at one prison:
    [The] Intensive Management Unit; That used to be where all our new receptions were and then they went down to the 'M' wing. There they had a talk … I think it was three days a week, Monday, Wednesday and Fridays. The officers had their talk with them when they first came in; tell them exactly what to do, how the right wing works. They'd run a video 'I'm in Jail Now', that kind of thing … [Now] the video thing doesn't work. We've got a new video which apparently is somewhere. We don't know what happened to it. So it hasn't run since the last four months. So the inmates don't get to watch the video. We tried to do the Offender Services and Programs talks. It was going for a while and then it got to the stage where I was just going down or somebody else was just going down ... The officers were there all the time [but] they never, ever did their talk, which they should do to every inmate that first comes in, but they don't. The Governor's aware of it and [she/he] is trying to get something in place to get it back. You know, because the inmates knew what to expect. These guys don't know anything now.
— Non-custodial staff member, urban prison

Custodial officers from two different prisons made the following observations about the Inmate Handbook:
    Some of [the information in the handbook] doesn't apply to [this prison] … I say, don't read that then it's outdated. Which it is. There's a lot of things like that in the book that just doesn't apply to us.
— Custodial officer, rural prison
    … we should have more information booklets given out. Because I think it's a requirement that inmates are given access to this, but I've never seen it actually done because I don't suppose people have been asking for them, but …

    [WHAT SORT OF INFORMATION HAVE YOU GOT IN MIND THERE?]

    About what facilities are available inside the jail, for what reasons. If they ask for it, they get told, but if they don't ask for it, well who cares, nobody bothers.

— Custodial officer, urban prison

Accordingly, the inconsistency with which information is available on pathways to legal assistance and the variability between prisons in pathways themselves may hamper inmates' efforts to address their legal issues. Although there are some means by which inmates may learn about pathways to assistance, those mechanisms do not always function effectively to enable the new inmate to know who to go to with a legal problem. Previous experience in the corrections system may, however, ameliorate the lack of formal mechanisms for imparting information (as discussed further in Chapter 6). However, inmates are often moved from correctional centre to correctional centre, even during times when they are trying to address the criminal issue for which they are incarcerated, as Chapter 7 described. Consequently, local variations in terms of administrative procedures and pathways to assistance may present even experienced inmates with problems in the absence of formally available guidelines.

Fragmentation of responsibility

Beyond the provision of formal procedural information about how to gain assistance with a legal issue, it appears that there are other practices that serve to confuse the pathways to legal information and advice. Note that in most cases the first link in the chain to reaching legal advice, information or participating in a legal process usually occurs within the prison, consequently much of the following discussion centres on processes occurring there. However, there were also examples of this phenomenon in other parts of the justice system that affect inmates' ability to satisfy their legal needs. These will be included where appropriate.

In addition to the dearth of formal information described above, the ability of inmates to identify an appropriate pathway or intermediary seemed to be compromised by an apparent fragmentation of responsibility as to who may be approached for assistance with a legal problem. Note the assistance sought at this stage was usually not legal advice as such, but more assistance with a referral, obtaining or lodging a form or making a telephone call. However, the importance of this contact as a first step was crucial to resolving legal issues.

No single designated contact

Fragmentation of responsibility was generated through a number of practices. Firstly, inmates could (and did) approach any number of people given a legal problem. That is, it seems in many instances there was no central or set member of staff who was approached for legal assistance, resulting in inmates approaching a range of people for assistance:

    I find, yes, the officers are the first stop. Inmates know enough to know which officer knows. So they might go through three officers and go for one that actually has the information.

    [HOW DO THEY KNOW?]

    Experience.

— Custodial manager, rural prison
    With Legal Aid, when we talked about the referrals for them, those come from wing officers, welfare officers, other staff members. So managing it is not down to one discipline. So it's harder to then pass on to somebody else.
— DCS welfare officer, urban prison

Multiple entry points to obtaining assistance for legal problems and their resolution among a number of people was not confined to DCS. In the following excerpt, an DCS staff member talks about the confusion around getting legal advice from the ALS.
    Well you've got the ALS; they also cover the family prisoner support people. Well they're actually filling in as field officers, legal field officers. And basically, it gets confusing for the girls as to why these, these people are coming in, whether or not they're there to, to sit there and have a chat or whether they're there for legal matters.
— DCS client services officer, head office

On the one hand the practice of having no one central contact point could be seen as providing a range of opportunities for the inmate to commence dealing with their legal issues. On the other hand, it can obscure responsibility and/or result in the inmate taking a scattergun approach, whereby the services of several people are used on the one problem. As one interviewee explains:
    And I mean inmates will do it. They'll go to you, and they'll come to me and they'll go to that chaplain, they'll go to the Throughcare worker, and we all find we're running around for this fellow. So it, it gets a bit messy.
— Chaplain, correctional centre

Later, she attributes this confusion to the lack of a designated welfare position at this particular centre:
    I still think that must be a drawback at [present jail], not having a clearly defined welfare [position]. 'Cause I think at times, everybody's been dabbling when it needn't be.
— Chaplain, correctional centre

Accordingly, it would seem that there are multiple pathways and intermediaries who may assist an inmate with a legal problem. The appropriate pathway, however, is not always immediately apparent, with the inmate pursuing several pathways (some of which may be inappropriate) in the hope that one route proves fruitful.

Sharing of tasks

Fragmentation of responsibility and the resulting uncertainty about who is the best intermediary may be further reinforced when tasks assigned to one group are taken on by another group, in the interests of helping the inmate. The following quotes illustrate the circumstances in which our interviewees witnessed such practices:

    … Nine out of ten bail calls I do, because it's not worth arguing with the officers to get them to do the bail calls because they say, 'I don't have enough time'. And I say, 'Make the time because that person can be out in a couple of hours'. So you know, if they come to me for bail I say, 'It's not my job but I'll do it for you this time'.
— Non-custodial staff member, urban prison
    And I mean, we're not supposed to sort out money for Centrelink debts either, but you know that there's nobody else to do it. You know that the client is in jail and has no capacity to do it from within jail. But if somebody doesn't do it you know there's just going to be a worse mess at the end. So, I think you do whatever you can to fix it.
— Worker, CJSN

As may be seen by the quotes above, there are a number of examples whereby, to assist inmates with their legal issues, an informal system compensates for breakdowns in the formal system. An unintended consequence in the quest to ensure that inmates receive the help they need when they need it, however, is that the delineation of responsibility between stakeholders for particular tasks becomes blurred.

Lines of responsibility were further obscured by reluctance by some inmates to approach custodial officers for assistance where they are the designated contact. Accordingly in situations where custodial officers were the formal designated contact to initiate assistance with a legal issue, some inmates were still inclined to use other pathways:

    I think the tasks these people do are different because of the way the inmate looks at [them]. They can look at me and I'll do this thing for them. But they can look at Sister 'X'; she's doing the exact same thing but the inmate feels better in himself that it's the nun doing it and not the screws. I think a lot of it, we could do the same job, it's just the inmates benefit, and they feel better that this other person's doing it.
— Custodial officer, rural prison

The challenge to prison culture of approaching an officer for assistance (as discussed in detail in Chapter 9) further undermined consistency for pathways to assistance with legal problems. Although not inevitable, in practice, there is evidence that tasks that might otherwise routinely and reliably be conducted through custodial officers would again be re-routed through other staff, again fragments responsibility. Consequently, out of a range of motivating factors, the sharing of tasks that have been designated to one staff function leads to confusion about the most appropriate pathway to legal help.

Variable knowledge among staff

The final theme that that emerged when we investigated the mechanisms that contributed to the fragmentation of responsibility among interviewees was the variable knowledge among DCS staff about pathways to legal assistance. In addition to welfare staff, custodial officers were often asked for assistance with legal problems. However, the variation in confidence in dealing with these requests is apparent from the following excerpts:

    'Oh yeah, I need Legal Aid.', 'Have you got somebody?' 'No.' 'Alright, I'll make an appointment for you, stay here.'… So then an appointment has been made in his presence. … Now some of them do come with in-depth questions, which I don't even attempt to answer. Because, here again, it's not my area of expertise, I will end up giving some wrong information. You know, and if something went wrong, I'd hate to be feeling bad because I gave him the wrong information. So yeah, it's basically just channelling people to the appropriate areas as a wing officer that's what I do.
— Custodial officer, urban prison
    [IF SOMEONE HAS A LEGAL ISSUE, WHERE ARE YOUR REFERRAL POINTS?]

    Well if it's an Aboriginal inmate with family problems I'll refer him to 'X' ... the [Indigenous support officer]. And she can generally refer them to other people that they need. She has the training and the knowledge in that area for the legal side of it. If it's other inmates, I can refer them to any number of counsellors that we've got here. They've got a lot more access to people in education [who] know the legal side of it. So they could do their referrals from there. But I couldn't refer anyone. I wouldn't know how.

— Custodial officer, rural prison

Not surprisingly, inmates were aware of a certain degree of variability in the help they could obtain from prison staff:
    Knowing about your case and you want to go and see the area manager and find out what's going on. It's hard to see them. And if you've got sentenced and they've stuffed up, you don't know, you know. Sometimes we don't understand the judges what they say. We come back and ask our officers. Some can't help us, some can help us.
— Wahib, male remandee, minimum security, 25–34 years, NESB, urban prison
    … like you'd go up and see the Welfare and that and they'd help you, 'cause it's their job to help you. But other than that the officers aren't very supportive. You know, they don't have much advice 'cause they don't know what goes on.
— Gary, male parolee, 25–34 years, Aboriginal, rural area

In many cases, it was not for want of knowing:
    But sometimes I do wish I had some knowledge to be able to answer them. You know, some knowledge with some confidence to be able to give them a response rather than, you know, 'Go and see Welfare, speak to your solicitor, I'm only a wing officer.'
— Custodial officer, urban prison

It seems that DCS staff do not receive training as to how to aid inmates with their legal problems.57 What officers do know, it seems, is gleaned from experience. As one officer explained:
    [IN TERMS OF PEOPLE BEING DIRECTED AROUND, FOR LEGAL ASSISTANCE AND SO ON, IS THAT A RECOGNISED PART OF YOUR ROLE?]

    No … I think it's just our role in general is … if someone asks you a question … you help. But I don't think it's part of your role to do this, this and this. No, it's not. It's just a general part of your job. It's not a particular requirement or anything. It's just an informal part of our job … Because I mean if we're a face here and they need to know something, they've got to ask us; we're the only ones there. Oh well if they see a welfare officer they'd probably ask them. But if we're the only ones here of course they're going to ask us. And all my knowledge about what goes on is stuff that I've just learnt while I've been here. You know, and I've been here for nine years, so ... It's just stuff that I've picked up along the way. It's not, I don't get told any of this stuff. And I've had no experience with the legal system myself. So ... you know, it's all just stuff that I've picked up.

— Custodial officer, urban prison

As a consequence custodial officers may be hesitant about providing guidance to an inmate. In preference, as alluded to above, they tended to refer people to welfare. However, welfare officers highlighted how the knowledge they use to assist prison inmates with legal problems is also often dependent on their own backgrounds and expertise, which varies from officer to officer:
    One thing with Welfare as a discipline is that you have a huge range of qualifications and experience… depending upon that individual's background, level of experience [and] higher education level … For example, X [other welfare officer] actually comes from a very legalistic background. A lot of his positions have been very legal based and he has a particular skill in Victims Compensation. So he is very knowledgeable [about] that … So if we get someone like that, we can send them to him. But you can see, that if that inmate was in a jail where someone didn't have that knowledge or expertise, he might not get the same level of assistance he could get here.
— DCS welfare officer, urban prison

Custodial officers and welfare staff were not the only roles where the level or type of assistance they could offer varied. A couple of interviewees also made reference to variability in assistance available in the prison library depending on the person (who may be staff or an inmate clerk) occupying the role.
    … X [jail] was great. You could actually go into the library there, talk to the law clerk, tell him your problem. He would have it for you, he'd get the stuff to work and actually help you with it, and help you understand. And then actually be able to give you time to contact the lawyers who would actually … have some expertise in that area and or [be] willing to help you. Doesn't happen here. You feel like you're in the wilderness.
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison
    When I came, there had been various correctional centres that had developed a little collection because somebody was interested in it at the time. So they would have some books or some of them would have various law CDs. But basically they weren't being used because that person had moved on. That person didn't know how to use them. They were sitting on the shelf. They weren't updated.
— DCS library staff

Accordingly, the actual assistance with legal issues available through two main intermediaries groups, custodial and non-custodial DCS staff, varied with knowledge each individual officer possessed. Further, although legal information was a major area for which inmates wished to access the library, staff may or may not be in a position to assist. DCS personnel do not, according to our interviewees, receive any formal training on how to help inmates obtain legal information and assistance and therefore relied on the knowledge they gathered through the years they had spent at their job.58 From these data, the impact of variability concerning the knowledge of people who may provide assistance to inmates was two-fold:
  1. where there is a lack of knowledge, this acts as a barrier because inmates are dependent upon DCS staff and others in order to address their legal issues, and in some cases only do so by finding out the next step through these intermediaries. Therefore if the intermediary does not know, the inmate cannot progress their issue
  2. because of differences in knowledge and experience, the pathway to assistance becomes unclear and/or less reliable. That is, prison inmates may have difficulty in identifying the correct person to act as an intermediary because people performing the same role (e.g. custodial officers and welfare officers) may in one case have knowledge about how to follow up a legal issue, but in another they do not know the requisite information.

Summary

Consequently, one of the barriers that inmates encounter in getting legal information and advice and participating in legal processes is the fact that they need to find the right intermediary, but there can be substantial confusion about where to go. The confusion seems to have a number of contributory factors, namely occasional breakdowns in formal sources of information such as induction videos and the provision of the Inmate Handbook, the informal division of labour in principle and in practice among DCS staff and other non-DCS workers, and the variability in knowledge among those who can potentially assist. Thus, for an inmate unaccustomed to prison processes or the processes of a particular prison, knowing where to start in addressing an issue with legal implications may be unclear, inefficient and involve many dead ends.

However, even for the experienced prisoner, knowing how to obtain legal information or assistance may be compromised because there is inconsistency in how much help stakeholders can provide and who provides it: that is, the pathways may vary from prison to prison, wing to wing and day to day as knowledge and informal agreements shift with the different personnel. Yet prison necessitates that inmates go through intermediaries rather than act on their own behalf. As a consequence, they may waste systemic resources by approaching several people in the hope that one may produce the desired result, waste their own time heading down the wrong path or abandon the pursuit altogether because they simply do not know where to go to next.

Scope for discretion with assistance

A second feature of mediated pathways that functions as a barrier for inmates trying to obtain assistance with a legal problem concerned an apparent inconsistency and/or unreliability in the provision of help. The first section of this chapter clearly demonstrated that many people were extremely helpful in their roles as intermediaries, often going beyond the duties of their role to assist inmates with their legal needs. However, it was also apparent in our interviews that assistance was often characterised as discretionary. In some cases, it appeared that the inmate was at the mercy of other peoples' willingness to carry out a task or pass on a message. The first examples illustrate this in relation to custodial officers:

    The rule here is you're not obligated to do too much but we try and facilitate it … I'm not obligated to chase his lawyer. I'm not obligated to put him in contact. I'm not obligated to chase his paperwork. But we try and do it, all right? There are limitations; I mean you can't spend all day every day on them.
— Custodial manager, rural prison
    I don't really think that it's deliberate but I do think you're at the mercy of officers; some are very conscientious and really do it really well. Others couldn't care less and I think there's a bit of that.
— Chaplain, correctional centre

The next comment came from a legal service provider and suggests how prison staff are perceived to directly affect the flow of work to legal service providers:
    I think it really depends on how much the prisons are prepared to help you … [prison] is really good, [another prison] is exceptional, the staff there. And depending on how the staff, the program services or the [DCS] view you, your service or their place in the world, certainly impacts on how many clients you get and how easy that process is.
— Legal Aid solicitor

The following comments from inmates illustrate the sometimes unpredictable nature of assistance:
    [GETTING ACCESS TO A LEGAL ADVISER]

    If they want to ring them they'll ring them. If they don't, they'll tell you, 'Yeah, couple of days, we can do it in a couple of days.'

— James, male sentenced inmate, minimum security, 24–36 years, Aboriginal, urban prison
    Access to phone was denied me … I'm not being vindictive and I'm a fairly objective human being, and I realized my particular instance, it was unique in a sense, but I found that your rights as a prisoner depended on the mood of the person working his shift as a corrective services officer in your pod. It all had to do with your rapport with that, those particular people.
— Ryan, male parolee, 35+ years, non-Aboriginal, rural area

According to a contemporaneous position description, custodial officers' key accountabilities include '… a range of duties that provide for the safety, security, welfare and rehabilitation of inmates in accordance with Departmental standards of development and confinement' (NSW DCS, 2007) and therefore assistance with legal problems could be interpreted as falling under this general requirement. However, the quotes given above suggest that beyond a general responsibility to assist inmates to facilitate their needs, there appears to be some scope for discretion in providing assistance.

Although many of the comments made by the interviewees in this study on this theme related to correctional officers (if for no other reason than they generally are the most convenient and likely person for inmates to approach in the first instance) the matter of the scope for discretion was not isolated to them alone. The following quote describe this issue in relation to an external agency:

    Look, I think a lot depends on your DOCS worker, I've decided. Because I've had another fellow who, his DOCS worker seems to be wonderful and they facilitate even trying to bring his child to X [prison]. I had, he's out now, another fellow who drove all the way from Sydney with the children … But anyway, they brought the child to see him. Then you have the other side where they can be really difficult.
— Chaplain, correctional centre

Hence, there was a feeling among our interviewees that, deliberate or not, assistance with legal issues was an area within which intermediaries had an element of discretion. Although the parameters of such a discretion varied from situation to situation, the concept had considerable resonance among the interviewees.

Summary

Our data indicates that inmates commonly depend upon non-legally trained intermediaries to provide or link inmates with assistance with their legal issues. DCS and non-DCS workers, friends and family, and other inmates, were more often than not part of the pathways inmates took to access legal information, obtain legal advice and representation and participate in legal processes. However, there was evidence that inmates' success in pursuing legal issues though such channels pivoted on the disposition of the person acting as the intermediary. The impact of this dependence was, firstly, the inmate did not always feel they received the assistance they sought; secondly, it engendered scepticism about whether assistance would be forthcoming, particularly from custodial staff; and thirdly, contributed to the fragmentation of assistance with legal problems (discussed in the detail in the previous section). Whilst it is clear that many intermediaries provide the best help they can despite the constraints of multiple obligations and tasks, the scope for discretion in providing assistance with legal issues means that such pathways in practice are less reliable.

Delay involved in using intermediaries

Delay was another feature of inmates' dependence on intermediaries to access legal help. Many inmates and stakeholders described how the need to go through one or more intermediaries to reach legal help usually significantly prolonged the process. The following quotes illustrate this view.

    [DID YOU HAVE ANY PROBLEMS GOING THROUGH YOUR EX AT ALL, IN TERMS OF GETTING THE INFORMATION?]

    Oh, it's like, you know, months, months later.

    [AND WHY WAS THAT?]

    It's because, by the time she drops it in and … they go through; by the time it gets to me it is three weeks you know, four weeks.

— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison
    The Legal Aid people they'll get a secretary who'll say they will call. If they can't call back here obviously they will write to you or … once again it's late, they don't know where their cases are.
— Leroy, male remandee, medium security, 35+ years, Aboriginal, urban prison

Many interviewees gave examples of the delays that occurred when going through the welfare pathway in particular. The comments were not critical of welfare officers as such, but noted the prolonging of processes when using this particular pathway:
    I mean they've only got a limited number of phone calls they can make on their phone cards. If they want to do it through Welfare, they've got to get on the list and there's probably not enough welfare officers to deal with all the stuff that comes from inmates so that normally entails a fair bit of a wait to see a welfare officer and get something done. And just because you get to see them and the phone call is made, doesn't mean you get to speak to the person that you needed to speak with. So you've got to rely on people getting back [to you] and it all gets very convoluted. And obviously people get fairly frustrated with that, quite reasonably. And things that, maybe shouldn't take too long, end up taking a hell of a long time. So I think the ability to directly access who they need to speak to is a big problem.
— Prisoners Aid Association
    If an inmate comes to me with a query and I can't answer that question, I need to contact certain people. Many a times we can't because they are either not in jail at that particular time, they are visiting somebody else, or they say, 'Fill in the form, fill in the referral form.' You fill in the referral form, it goes in the box, the inmate is then left in limbo. … Generally Welfare, they empty those boxes every day. But then they might not get the result of those queries for the inmate. And the inmate then comes the next day and says, 'Chief, what about this thing, what about that thing?' 'Oh, no, the Welfare has taken it.' 'They haven't contacted me Chief.' I know they're probably busy, they're probably doing this and that and that, so it's the, the link between all the different sections that, it just takes time for it to come back to the inmate. And they are the ones, you know, waiting to know what's happening with them.
— Custodial officer, urban prison

Given many comments similar to those given above, there seemed to be consensus that although welfare officers were helpful as intermediaries, it was a route that inevitably entailed delays. However, delays also occurred when other intermediaries were used. For example, library workers described the delay they were part of because of a lack of direct contact with inmates making requests:
    Some of the things they want to know … see this is from outside, from another jail, I don't get to talk to them. If it's something a bit 'way out' and they're here, I can call them up to the library and have a chat to them. And sometimes it's nothing … to do with what they've written down.

    [BUT IF THEY'RE FROM ELSEWHERE?]

    I have to work with the education officers, and I ring them and then they have a chat to them, so it's all a bit long winded.

— DCS library staff

A lawyer describes a similar problem when an inmate requests pro bono assistance:
    Another factor contributing to a delay in getting pro bono assistance is poor literacy. A request for assistance may come which does not contain enough information or any evidence to support an appeal, or is indecipherable. We then have to contact the inmate by phone [through the welfare office] or by letter to get more information. This all takes time.
— Community Referral Service, NSW Law Society

Here we see an interaction between an inmate's capacity in terms of skills in written language and the use of intermediaries. In this case, if a request is poorly expressed, as it may often be given the level of prisoners' communication skills (as described in Chapter 6), the relay network required to clarify the request can result in significant delays occurring in securing legal assistance.

In terms of impact, delays associated with the use of intermediaries may discourage some inmates from carrying out a task in relation to a legal problem.

    A lot of them don't like to leave the unit [to see a lawyer]. It's very hard for them to leave the unit. If they leave the Unit they have to have a reason. And they've got to explain that reason to at least four people. And any one of those four people could knock them back to get to Education. It makes it a long drawn-out process. It makes them very uncomfortable and they get annoyed. So rather than go through that, they just won't bother.
— Custodial officer, rural prison

The above example demonstrates that even the simplest of activities may need to be facilitated by others. However, there was a sense expressed by some respondents that inmates' own expectations may exaggerate the feeling of delay:
    From their point of view it's always urgent. Even a pillow is urgent, you know what I mean. So, it's always urgent. And they want a result yesterday, you know, as quick as, you know. It's always important for them, it's always important.
— Custodial officer, urban prison
    … I suppose they think it's supply and demand outside. … But sometimes we sort of say to them, 'We have to make an appointment to go and see our solicitor and it might be two or three days, it might be a week before we can get in to see him.' And they sort of look at you, and you say, 'Yeah, that's how it really is outside.'
— Official Visitor, rural prison

A custodial manager further comments that, in the case of inmates, the stakes are somewhat higher when the object of a process is to get out of jail:
    … it's not a good system but that's the way it is. But that's part of the jail. Probably nobody's fault from the outside. I know sometimes I want to see my lawyer on the outside; I've got to wait a week. It's just the way it is. But then I'm not locked up trying to get out.
— Custodial manager, rural prison

However, the impact of the delays may amount to more than stress and anxiety; it may mean missing out on an opportunity to address a legal issue:
    An example is if you needed to contact…the courts…to make applications in relation to appearances or that sort of thing … [through] … Corrective Services. The process that is put in place for you to deal with it is slow and laborious, and quite often inmates will end up having failed to appear on their record because of a lack of response from Corrective Services.
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison
    They say, 'Oh, the Legal Aid comes in once a week, wait until you see that.' … But you know what I mean, blokes go to court within that week.
— Neal, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison
    X [jail] [is] very ordinary when it comes to law books. MRRC, I went in there, they have quite a lot, so I asked about it here, they advised me that I had to fill out the form, it would get faxed off to MRRC, they would do the research if they have appropriate books. That was last Monday that I put in the request.

    [SO YOU PUT IN THE REQUEST AND YOU'RE STILL WAITING?]

    And I'm out of here when I need to go to court.

— Justin, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

In summary, intermediaries are an integral part of inmates' attempts to obtain legal information, representation and participate in legal processes. However, the conditional nature of the mediated pathways inmates use to address their legal issues often delays resolution which may in turn compromise the outcome. Further, delay was exacerbated the more a process was mediated. This could happen serially as different people cycled through the same relay point (e.g. when an inmate has gone through several different people to initiate a process) or sequentially, where one process involves several different relay points. Moreover, sometimes the delays may mean that a legal matter goes beyond the time limit for action or that preparation for a legal process is significantly compromised. Although there may be systemic reasons for a process to take the time that it does (see, for example, 'DCS facilities' in Chapter 7), and there's a suggestion that inmates expectations may exaggerate the perception of delays, the outcome for an inmate is that a pathway taken inside prison is likely to be a much lengthier road to legal assistance than it would be outside of prison.

Dependence and intermediaries

A final aspect concerning the use of intermediaries to assist with legal issues is the dependent relationship this generates between the inmate and the other person. Because inmates are often forced to use intermediaries, and the tasks performed by them are essential to accessing justice, the inmate's legal fate consequently often lies beyond their direct control:

    [AND YOUR ARRANGEMENT WITH YOUR DE FACTO … THERE'S NO LEGAL ISSUES THERE, [AROUND] SHARED PROPERTY SOMEWHERE OR SHARED CAR OR SHARED LEASES ON TVS OR ANYTHING LIKE THAT?]

    No, not that I'm aware of anyway. Probably, she might be using my name … I wouldn't have a clue.

— Mark, male remandee, medium security, 25–34 years, non-Aboriginal, urban prison

Exploitation

In this study, instances where the power conferred upon an intermediary has led to exploitation creating a barrier to justice, were raised mainly in relation to personal intermediaries: that is, with other inmates, family and friends. Tasks taken on by these intermediaries are, as demonstrated in the introductory section of this chapter, quite different from each other. Consequently, the form that the misuse of power as an intermediary took, according to our interviewees, was also different.

Assistance from other inmates

Inmates who cannot read or understand documents or processes either remain uninformed or must ask someone else to assist them. Given their segregation from the outside world, the most readily available sources of assistance are custodial staff, welfare or other civilian staff or other inmates. As discussed earlier in this chapter, inmates often relied on their peers to assist them and valued the help they received.

However, they were also aware of an inherent risk in disclosure for the inmate seeking assistance, in particular with sensitive material relating to a pending criminal case:

    … unfortunately there is a real atmosphere within correctional centres where, whether it be with your pending legal cases, something that you brought in from outside, or something that occurs within the centre, it can be unwise to speak about it. Because a lot can get lost, or added on, in the transference of information. And that can have an impact on the case.
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison
    Don't tell too many crims about your case, 'cause so many crims will, you know, try to get brownie points or try to get out early by giving evidence against this person if they say too much to them, you know.
— Mike, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison

In the next example, a non-DCS worker describes a situation where the inmate intermediary directly used the help they provided as leverage over the inmate who requested assistance:
    Like I've got an example that's happening now, and well one fellow you know, he helped him out and that but then it was, well you know, 'I need two packets of cigarettes' or you know, 'I'll have', he needed an address or phone number or something of outside family. And so it's just that difficulty you know of … a vulnerable inmate being taken advantage of by another fellow just when they are … trying to get a bit of legal advice.
— Chaplain, correctional centre

The following excerpt from an interview with the Centrelink Prison Servicing Unit relates how procedures governing inmates' applications for post-release crisis payment were modified after concerns arose over the potential for confidentiality breaches when inmates helped each other to complete benefit forms:
    So they're going to get another inmate to fill out their form, which is super dodgy, in terms of confidentiality, security, privacy and stuff. So … we thought the one-on-one intensive stuff [would be the best approach]. So, as it's developed, we found that early engagement/early intervention inside has made such a difference and it's so reassuring.
— Manager, Centrelink

In this case, instead of leaving forms for inmates to complete themselves, Centrelink now attends the prison and gathers the required information from inmates directly so that the need for inmates to disclose sensitive information to their peers is avoided.

Consequently, whilst fellow inmates may provide an important stepping stone in the pathway to legal assistance, certain vulnerability can occur (e.g. when another inmate has access to information about the prisoner's offences, which can then be used to gain an unfair advantage). In an environment where information about other people is a valuable commodity, disclosure of sensitive legal information to intermediaries may be a risk to inmates' ability to access justice.

Assistance from friends and family

The introduction to this chapter demonstrated the frequency with which family and friends performed crucial tasks for inmates as they pursued legal assistance. There is no doubt that family support was a resource that was heavily relied upon and missed when no longer available. However, our interviewees also gave a number of examples where these personal intermediaries had taken advantage of the position inmates had entrusted to them in dealing with their legal issues or potential legal issues. In the first examples, this breach of trust occurred in the area of money:

    Like, 'I'll sell these things and I'll keep the money for you when you get out'. There's some, but the inmate knows that the sister has had an overseas trip, and added an extension to the house … so there's some doubt that that money is actually being quarantined.
— Legal Aid solicitor
    He went into jail, he's got a $7 000 disability support pension debt because the pension didn't stop being paid when he went into jail. It was his step-father, who, because the step-father had managed his affairs before [he] had access to his account and was withdrawing the money.
— Caseworkers, Welfare Rights Centre

In the above examples, family members were asked to take care of the inmates' money which was then used by the intermediary themselves. The following examples show that further debt was also incurred because of bills that the inmate had requested to be paid remained unpaid:
    I know from when I used to work at Energy and Water Ombudsman NSW… dealing with prisoners who had left their homes in the hands of their friends to look after who then ran up a giant electricity bill and they're the ones having to deal with the debt.
— Policy officer, HPLS
    Once I went in; I had trusted my neighbour. He was supposed to pay my telephone bill. I left him my keycard, silly me, and he ended up spending all the money then never paid nothing.
— Alex, male parolee, 35+ years, non-Aboriginal, urban area

Malcolm describes how his property fell victim to the friends he had entrusted it to:
    Although when all your friends pack all your stuff away in storage and you come out and half of it is missing, it's a bit disappointing.

    [AND THAT WAS YOUR EXPERIENCE?]

    Yeah. All your personal stuff, people just help themselves to it. Oh, he won't notice this. He won't notice that.

— Malcolm, male parolee, 35+ years, non-Aboriginal, urban area

Whilst financial exploitation of inmates is an obvious vulnerability when inmates get family and friends to act on their behalf, the following examples indicate that the dependence of inmates on their intermediaries could entail other risks. In one example, an inmate's family, with apparently good intentions, were filtering information about his business so he was not fully aware of its status:
    They're short on money, they won't tell me. They need money, they won't tell me. Just won't tell me nothing. All they'll come back is with an answer of, everything is okay. Just so it doesn't hurt me in here. It does hurt me. I know nothing. I can feel it. I know everything is going bad outside, but they won't tell me, you know … they [say] 'Oh no, everything is good.' and I know it's not. I know they're doing it hard. They're doing it very hard.
— Wahib, male remandee, minimum security, 25–34 years, NESB, urban prison

A final example from LawAccess concerns situations where an intermediary may ring the organisation on behalf of an inmate. The excerpt demonstrates the concerns already expressed earlier about the potential for a third party to exploit the information disclosed, but additionally highlights the risk that a third party may not accurately relay the information back to the inmate:
    … the exception is that we don't give advice to third parties unless it's clearly in the interests of the third party. So our lawyers are quite aware of … can I or should I be giving legal advice to this person or information to this person when actually, they are calling on behalf of somebody else. Now if it was a prisoner, obviously we would make that exception, because for obvious reasons. Of course [we try] to assess whether in fact they were calling and they had the best interests of the prisoner or the other person. Because sometimes there's that issue about conflict of interest, so we have to be quite careful about who [gets given the information]. But I mean also there's the risk associated with that information of asking relayed back to the person, and the risk of it not being relayed accurately.
— LawAccess

Friends and family acting as intermediaries are crucial in assisting inmates to address their legal issues outside prison. However, as illustrated above, inmates can be vulnerable to intermediaries taking advantage of the inmate's dependence upon them. This in turn may result in existing legal problems being either exacerbated or remaining unaddressed, or in some cases, additional legal issues being generated.

Quality of information

Another risk inherent in a relationship where an inmate is dependent upon an intermediary to get information or advice, relates to the quality of the advice or information relayed by this intermediary. This was clearly illustrated in the dependent relationship of some inmates on other inmates with regards to legal information and advice. Although not a formal pathway, many inmates, as mentioned previously, consult each other to obtain legal information. As indicated in Chapter 6, some inmates have extensive knowledge of criminal law processes. However, according to our interviewees, the risk is that the quality of the information is questionable:

    Yeah, that's quite a good option. People who have been in before, who've gone through the same thing or similar things, or people who have been sentenced [for] a similar charge, it really helps … That it's just as good or better than your lawyer's advice … Provided they don't add anything on top. Meaning, like telling you bullshit.
— Binh, male remandee, maximum security, 35+ years, NESB, urban prison
    They do talk. There's a lot of guys who've done a lot of time. Have been up to the Parole Board. Been talking to solicitors, or whoever, back and forwards over a number of years. And they form their own opinion on what's right and what's wrong. So yeah, there's a lot of that misinformation. So-called 'legal experts' inside. And it doesn't help when we've got a young fellow trying to get him out on parole.
— Probation and parole officer, rural area

One inmate who works in the library was acutely aware of the potential gaps in his knowledge to assist other inmates to fill out requests and/or get appropriate legal information:
    I have to fill out a request for them … mostly like comparative sentencing … I don't know what I could be offering them. I say, 'What would you like, comparative sentencing or more information about what your charge is?' Maybe there is a whole range of things, no doubt, there are things we could be offering them and I am not even aware of it.
— Leroy, male remandee, medium security, 35+ years, Aboriginal, urban prison

One inmate even felt that the quality of information he received through his official interpreter was not the same standard as having the information first hand:
    I got interpreter, but interpreter is not exactly what they say it just like you. Because in some way the interpreter they change and … the answers come weak …
    — Pedro, male sentenced inmate, minimum security, 35+ years, NESB, urban prison

Consequently, the issue of quality of information as obtained through inmates and other intermediaries is both a matter for debate and concern. Many inmates felt that the experience and knowledge gained by their peers was useful in a wide range of contexts: finding a lawyer, deciding whether to appeal a sentence, deciphering legal forms or just gaining more information on a particular legal topic. Others felt that this information may be misinformed, biased or simply incorrect as (most) inmates have no formal legal training. Ultimately, the legitimacy of either of these assertions, of course, is not possible to test here. However, what is clear is that inmates often seek legal information and consider it necessary for conducting their matters and life inside.

But whilst there may be more apparently reliable sources of legal information than other inmates such as lawyers and library materials, access to these sources is, as argued previously, limited. By contrast, inmates with, at the very least their own experience at the hands of the criminal law, are readily available. It would appear perhaps that there is a continuum for access to legal information whereby availability and quality are inversely related – the most reliable sources of information are the hardest to access whilst the sources most readily available are questionable in terms of accuracy. Such a situation affords an opportunity whereby improvement of either access or quality should increase inmates' chances of obtaining legal information. This theme will be further explored in Chapter 10.

Summary

Having a third person act on an inmate's behalf, it appears, is a double-edged sword. On the one hand, they may advance immeasurably an inmate's progression towards the resolution of a legal problem. Without their help the matter may not have progressed at all. Clearly, as an informal source, personal intermediaries can readily fulfil a need which might otherwise remain unmet, when formal pathways prove problematic.

On the other hand, the dependent relationship that may be created by such assistance also carries the risk that the person will not perform the requested task, or worse, generate further problems for the inmate. In our interviews, examples were given of personal intermediaries having taken money, property and information and used them for their own gain. The lack of personal autonomy associated with imprisonment consequently may not only impede inmates' access to justice but may also create further legal problems. Additionally, concerns were raised in our interviews that depending upon the knowledge and advice of other inmates, prisoners may risk being poorly informed and/or will have expectations (based on the advising inmate's experience) that cannot be met.

Conclusion

It would seem that intermediaries are currently a necessary part of prisoners' ability to obtain legal advice and information and to help them participate in legal processes. This may be because the administrative procedure requires it, inmates are too isolated from the community to act independently, or the inmate feels they do not have the necessary skills to carry out a particular task, such as reading a legal document. Intermediaries may provide access to legal information, facilitate administrative processes, provide practical assistance or advocate on the person's behalf; all important aspects in addressing legal needs. However, as this chapter has argued, the dependence of inmates upon intermediaries also entails the risk of disruption to the process or for the task to occur at all.

There are a number of features of practices involving intermediaries that seem to govern their ability to facilitate an inmate's access to justice or act as a barrier. Firstly, the degree to which there is clarity about the pathways for pursuing certain matters. Although there appeared to be numerous professional intermediaries prepared to assist with tasks associated with a legal problem, inmates often expressed confusion about who was the best person to approach, particularly in the first instance, with many efforts resulting in a 'dead end'. Uncertainty was generated by a number of practices that fragmented and obscured the pathways to assistance with legal problems: lack of formal information detailing appropriate contacts; several different staff groups covering the same task, tasks designated to one group being taken up by another; and, different people within the one occupational group having varying degrees of knowledge and capacity to assist. Inmates sometimes responded to this uncertainty either by giving up the pursuit or approaching several intermediaries for the same issue simultaneously, thereby doubling up on the use of resources, and further entrenching a lack of definition concerning responsibility.

Secondly, a major issue that arose particularly in relation to custodial staff was the scope for discretion in providing assistance with legal issues. Rather than assistance to inmates always being consistent and related to need, at times it appeared to be dependent on the mood or disposition of the intermediary. This further reinforced the lack of clarity around appropriate contact points, as sometimes a staff member occupying a certain position was helpful yet another in the same position was not.

Thirdly, processes which depend on intermediaries can also delay help to a degree where opportunities for accessing justice may simply lapse. Many interviewees described apparently cumbersome processes to achieve relatively simple tasks. As a consequence, inmates would in some cases abandon help seeking because they felt it would take too long. In other cases, inmates missed an opportunity to address a legal issue or prepare effectively for a hearing. As the contingencies increased with every pair of hands a matter passed through, so did the opportunity for a breakdown or a delay to occur.

The final factor that affected the utility of intermediaries was the potential for inmates to either be exploited or unintentionally misled or misinformed, by being given incorrect or incomplete information. A sub-theme of exploitation was mainly raised as an issue where personal, as opposed to professional, intermediaries were used. For example, whilst there was no doubt that inmate peers were an easily accessible and many times preferable source of assistance with legal problems, the sensitive nature of the matters for which help was sought could sometimes place an inmate at risk of privacy breaches. In other cases, inmates were misinformed, lost money, property or had debts incurred in their name.

Consequently, whilst intermediaries perform many important tasks for inmates and sometimes provide the only means by which they can progress their legal problems, they also can be a barrier to inmates accessing justice. In some cases, the problems arising are at least in part a function of informal processes compensating for an absence or failure of more formal systems. The enforced reliance upon intermediaries by the very nature of imprisonment and/or the bureaucratic processes that govern the resolution of legal issues, places the inmate at risk of not resolving issues or feeling dissatisfied with the outcome.



Please note that the word .mediated. is used in this report to mean the looping of a process through at least one other person as opposed to the strict legal sense of an official mediation process.
Although non-custodial staff are not responsible for managing the security of the prison they are required to prioritise it when their work and security conflict. This theme is further elaborated in Chapter 7.
A bail call is a telephone call made to a person nominated by the inmate who may be able to post bail on the inmate.s behalf.
See the Glossary for a description of the Inmate Development Committees.
This is not to suggest that DCS staff, or any non-legally trained staff, should be expected to provide legal advice to inmates. Rather, stakeholders seemed to be interested in having more knowledge about where to refer prisoners on to.
Since our field work, some training has been provided to relevant staff and inmate clerks on the provision of LIAC information. See Chapter 10 for more information.

53  Please note that the word .mediated. is used in this report to mean the looping of a process through at least one other person as opposed to the strict legal sense of an official mediation process.
54  Although non-custodial staff are not responsible for managing the security of the prison they are required to prioritise it when their work and security conflict. This theme is further elaborated in Chapter 7.
55  A bail call is a telephone call made to a person nominated by the inmate who may be able to post bail on the inmate.s behalf.
56  See the Glossary for a description of the Inmate Development Committees.
57  This is not to suggest that DCS staff, or any non-legally trained staff, should be expected to provide legal advice to inmates. Rather, stakeholders seemed to be interested in having more knowledge about where to refer prisoners on to.
58  Since our field work, some training has been provided to relevant staff and inmate clerks on the provision of LIAC information. See Chapter 10 for more information.


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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