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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 6. Prisoner Capacity


Introduction

A prisoner's capacity to identify and deal with legal issues they are facing and to actively participate in legal processes to resolve those issues whilst incarcerated is affected by a complex interplay of factors. Some factors relate to systems (legal, bureaucratic and custodial), some to individuals within these systems (inmates, lawyers and prison staff) and some to the prison culture. This chapter focuses on those factors that are related specifically to the prisoner. In particular, it examines how the capacity of inmates to address their legal needs is affected by their own:

  • histories: lives before prison
  • financial capacity
  • previous experience in legal processes
  • comprehension capacity
  • life skills.

Importantly, these factors should not be considered in isolation from their systemic context. Some of the characteristics identified as relating to the inmate are influenced or exacerbated by their environment. For instance, a lack of motivation to address outstanding debts must be considered in the context of limited financial resources and the difficulties they face in dealing with them from prison (Stringer, 1999). It is important to shed light on those aspects of a prisoner's life and skills that may affect their ability to access justice.

Histories: lives before prison


    … we have inmates who may be eighteen, we have inmates who are [in their] fifties. We have inmates who are illiterate and innumerate, and we have inmates who've been through university. We've … got ex-legals in here. You've got guys … who are twenty-six and never done a day's work in their life. Never, never managed to get work. Yeah you just have every style.
— DCS welfare officer

Among the more than 9 000 inmates in NSW jails are men and women with diverse backgrounds, histories, abilities, experiences and traits. Yet there are certain histories and characteristics that are commonly reported among the prisoner population, which can have a direct bearing on the capacity of inmates to address their legal needs. Chapter 2 provides a picture of the overall characteristics of the NSW prisoner population in terms of gender, age, ethnic or Indigenous background, education level and health status. The following analysis examines the personal characteristics of prisoners and their lives which were identified in this analysis as having an impact upon their ability to access justice. While some of the features we describe are not unique to prisoners (e.g. poor literacy), they are discussed here because of their prevalence within the prison population and their particular impact on access to justice issues in the prison environment.

It appears from our interviews that it is not uncommon that life prior to coming into custody is chaotic and, for some, spiralling out of control. According to our interviews, for many prisoners this pre-custody period is characterised by unstable living arrangements, poverty, alcohol and other drug misuse, mental illness, damaged or unhealthy relationships with family and friends, and poor histories with government agencies and other services providers. It became clear from our interviews that the impact of these somewhat chaotic lifestyles before prison both contributed to the range of legal issues with which people arrived in prison and continued to affect their capacity to address their legal issues while incarcerated. These legal issues may continue unresolved well into their post-release period.

Chaotic lives

Alcohol and other drug use, mental health issues, transient lifestyles and criminal activity were all commonly reported by our interviewees as precursors to prison. A sample of descriptions given by our interviewees characterise this period:

    … all the time for three years I was drunk every day except for about ten days in that three years. And I did, didn't give a shit about anything, I suppose, you could say.
— Mike, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison
    Basically, before I went to jail my life was based on violence, alcohol and drugs you know, very shitty.
— Malcolm, male parolee, 35+ years, non-Aboriginal, urban area

A lawyer who regularly attends prisons observed:

    … And it really is a challenge for the women, because I think that by the time that they get to the prison, they are so damaged … and then I see that it's a legacy of their life and the prison is just another part of that chain. And you can tell from their MIN 39 number, you know, how long that chain is.
— Legal Aid solicitor

These comments are supported by the statistics presented in Chapter 2, which indicate a high prevalence of mental disorders (psychosis, affective disorders and anxiety disorders) and substance use disorders among inmates on reception into prison and in the 12 months prior to their incarceration.

As outlined in Chapter 4, inmates interviewed for this study commonly came to prison with a range of civil and family law problems in addition to their criminal law issues. These included accumulated debts and fines, evictions and/or blacklisting from housing, as well as child support and custody residence issues. Indeed, our research has suggested that incarceration is not just a marker of criminal law issues, but is often an indicator of crisis more generally.

One impact of inmates having pre-existing legal problems when they enter prison is that, when they are removed from the community, their legal issues often remain. Family on the outside may be directly affected by these issues whilst the inmate is in prison (Woodward, 2003). However, it is often not until release that inmates themselves feel the full effect of these unresolved issues, which may have by then compounded and generated further problems:


    … pretty much all of the offenders that come here would have lost their licence at some point or other. And often it's not through driving whilst disqualified, it's just because they've accumulated fees and they can't pay them so they lose their licence. So then that stops them from looking for work, or for people [who] have got a trade or whatever, and they're a painter and they need to be out, you know, going around, they can't drive. And they can't get a job because … the first thing they've got to say is that they haven't got a licence. So they don't get employed. And it's just this kind of domino effect.
— Probation and parole officer, urban area

If the legal issues accumulated through their chaotic lifestyles prior to prison are not resolved during imprisonment, as the quote above suggests, people are likely to return to the community with debts, fines, housing and other non-criminal legal issues dating back to pre-prison life. These unresolved issues add to the difficulty of people re-establishing themselves in the community after a period of custody.

Damaged and damaging relationships

Adding further to the challenge of dealing with outstanding legal problems from the period before custody, prisoners may also have severed and/or damaged relationships with family and friends, government agencies (e.g. DOH or Centrelink) and other support services that could assist them with these problems in their post-release life.

Personal relationships


    A lot of them have very limited family support from the outside. That makes it again really hard for them. A lot of them, they are frequent flyers, they go out, come in, go out, the family don't want to know.
— Custodial officer, urban prison

It would appear from our data that the chaotic and often desperate lives inmates lead prior to incarceration could have detrimental effects on their personal relationships, and the resulting level of support they could draw on to address legal issues. For example, one inmate, Frank, commented on his difficulty in obtaining work because of the reputation he has with family and friends:

    … But it is hard, you know, like I haven't been able to get a job since I've been out because like … me name is blackened. Like I said, I burnt that many bridges with people and because me family is here, me brother used to own a wrecking yard here and I know pretty much everyone through him because I worked with him before. I burnt him, I borrowed money and not paying it back and ripping off his friends.
— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

A DCS officer noted that, while families can and often do play a vital role in supporting prisoners to avoid and address legal problems, their willingness and capacity to provide ongoing support may be compromised by the inmates' behaviour:

    Or a very common thing, a young fellow is expecting his parents to bail him, gets on the phone to mum and dad, and mum and dad say rack off [laughs], you know, bailed you for the last time.
— Non-custodial staff manager, urban prison

Inmates' expectations of the support they may receive — and of their legal options — may also be quite unrealistic, given the toll that their pre-prison lifestyle has taken. The following example relates to the difficulties involved in regaining access to, or custody of, children:

    So, whilst they're out [of prison] they may think, 'Oh, I really want to see my kids' but because of their drug or alcohol addiction, it sort of it never quite works. … 'How often did you see your son before you came back to prison?' 'Oh, yeah I saw him last year, you know but now I want to see him every week.' And you sort of, I say, '… I appreciate that whilst you're in here you're …, predominantly drug free, and therefore you've got time to think about it and, you know, your world's not running out of control and … now you've got the opportunity to think about, and it's good that you think that that's an important thing to keep the connection, but now we have to look at what are [the] courts going to say about your track record …
— Legal Aid solicitor

For other prisoners, families and close friends have been integral to the chaotic lifestyle they were living. In these cases, inmates and workers spoke about the need for people to break ties with particular family members and situations in order to move away from illegal behaviour.

    My family keeps pulling me back to the same old community … and you end up doing the same old things about six months down the track.
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

However avoiding this situation can be difficult when other sources of support are limited.

    … like a lot of them have got somewhere to live, but it might be an awful place. Or some move back with family but the family's got all sorts of stuff happening. Or, or they're not using drugs but they'll move back with family and the siblings or parents are still using drugs.
— Probation and parole officer, urban area

Relationships with agencies

Poor histories with government and other support agencies can also make it difficult for inmates both to resolve their civil and family law issues and to re-establish life post-release. As described in Chapter 4, service providers reported the difficulties they faced trying to re-house ex-prisoners when they had been banned by the DOH, placed on tenancy default databases (blacklists) or excluded from support services due to their previous histories:


    It also depends on the inmate's track record … Like, if you're meeting them, you think it sounds incredibly unjust and then you talk to a DOH person who says, 'Yes, but look at the history from our point of view. She made promises that it will never happen and we'll never get paid.' or 'We don't want him in the house because in fact he's banned on our other lists'.
— Legal Aid solicitor

However, the breakdown between inmate and agency may be a two-way street: with prisoners also distrustful of or reticent to re-engage with government and other agencies:

    A past negative experience can contribute to it … they might have been a ward of the state themselves, like 20 years ago and all they can see is the DOCS of 20 years ago. And they don't understand how it operates today and how it's different today … But, there's the fear … yeah, a previous bad experience, a historical negative view of a department.
— DCS welfare officer, urban prison

This is consistent with previous research which has indicated that some ex-prisoners did not attempt to resolve DOH debts because they believed, based on past experience, that doing so would be 'wasting their time' (Baldry et al., 2003, p. 14; see also Stringer, 1999). Having a poor history with agencies also appeared to increase the isolation of inmates from the conventional world and drew them back to seeking more marginal sources of support:

    Well because they don't feel any kind of sense of belonging to the conventional financial world, there's a sort of an element of believing the only way they'll ever survive is by scamming. They sort of sense that these other people [loan sharks] are operating slightly under the radar or they think they're genuinely a service for people down the bottom of the pile. So they're just drawn to that group of people.
— Financial counsellor

Accordingly, through often erratic and dysfunctional lifestyles inmates may have 'burnt their bridges' with those who could potentially support them during the post-release period. However, not only are family members and mainstream support services sometimes wary of inmates, but prisoners themselves can be reticent to draw on these groups for support. Having compromised their options for assistance and support, inmates may instead be drawn back towards the networks associated with their offending behaviour, thereby undermining their attempts to re-establish their lives after being released from prison.

Awareness of the damage done

An unstable lifestyle prior to custody, particularly when alcohol and other drug misuse or mental illness have been factors, may also mean that inmates are not fully aware of the extent of the legal problems that have accumulated during the period before they went into custody. Frequent changes in address prior to their imprisonment may also mean that notices and letters are not received or become lost in residential moves. In other cases, through their disordered life before prison, the person may have simply forgotten specific events or issues that have developed into legal issues. As one support worker observed:


    … And they will quite frequently, particularly if they were perhaps intoxicated at the time and it was something so minor, such as having feet on the seat or telling a Transit Officer to rack off and picking up a $400 a piece for that, they quite easily forget it. Until they get picked up on $1 200 worth of fines that are outstanding. All of a sudden they are in court … So, they don't deal with them, they don't remember having them and then they lose the paperwork which is another thing. As often as IDs get lost, other related paperwork gets lost so we have people call us saying, 'I have to be in court and I have no idea when, what date, who…' and sometimes even, 'What for'.
— Homelessness worker, urban area

Ricky, a long-term inmate noted:

    I wouldn't even know what outstanding debts might be out there from five years ago, you know. There might have been $300 on the electricity bill or $400 on the phone account, this here and that there and, all of a sudden it's turned into $2 000 because of interest and you know, what am I supposed to do with it? I couldn't really deal with it, I was in jail.
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

Not only may inmates have accumulated legal issues through their chaotic lives prior to custody, they may not be aware of the full of extent of these issues when they are in prison. Events may also be forgotten with the length of time people spend in jail, separated from their former lives. Consequently, legal problems may accumulate but not become apparent to the inmate until they leave prison and start to re-engage with their former lives.

Informality in personal affairs

A further feature of prisoners' lives before custody that was relevant to an examination of prisoners' legal needs was a tendency for inmates to manage their financial affairs and family arrangements without recourse to formal legal transactions or processes. Examples raised in our study included informal money lending between family, friends and acquaintances, unofficial custody arrangements for children and the unauthorised sub-letting of housing. Inmates interviewed commonly reported having made relatively informal arrangements with their housing, allowing friends to occupy their accommodation while they were in custody or when they had moved elsewhere:

    … it’s funny you say that, because years ago when I was in DOH, I had a little bedsitter over in X [suburb] and I moved out there and moved in with me girl and stupid me I told the DOH I was moving out. And as far as they knew, I was in there cleaning the carpets and that, but I didn’t; I let a couple of me mates that were squatting and had nowhere to live, I let them move in there.
— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

This may be because, as perhaps is the case for people who are not inmates, informal arrangements may seem simpler, develop slowly over time, or are emergency measures that become permanent. There was also the suggestion that informal arrangements were preferred because inmates had negative perceptions of the legal system. For example, it was evident during the interviews that prisoners and ex-prisoners were often quite suspicious of the law and legal process and its capacity to deliver positive outcomes for them. This appeared to contribute to the tendency towards informal arrangements:

    … the legal system's just up there, it's against us, and there's nothing you can do about it, you just gotta try and avoid it.
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

One father indicated he would deliberately avoid using legal processes to gain access to his children because of the perceived impact of the system on them:

    I'd ring up and ask [my ex-wife] and if you get knocked back, you get knocked back. But I won't go through legal because it's a waste of money and the children suffer in the long run I reckon.
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

Toby also indicated that he would not go to the police when he had been a victim of crime, even though this affected his capacity to be compensated for his injuries:

    … I never went to the police. I don't like police [getting] involved because they upgrade it … At times I feel I can go to the police, I could have got compo and everything out of it, but I didn't want to. I didn't want to involve the person to - you know. I could deal with it, I still can.
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

Accordingly, some inmates spoke of the legal process as potentially damaging to what were already fragile relationships and sought to avoid these processes, even if they recognised that these processes may yield benefits to them. Inmates may also be isolated from conventional processes by a history of exclusion from the mainstream community:

    … a lot of inmates have done the get rich quick thing. Sold drugs, whatever. Many of them believe there isn't another way for them to ever aspire to, other than crime because of their poor education or their limitations, or some cultural groups that are chronically illiterate. They come to jail outside the education loop. They don't have the social connections. They see this as the only way they're going to ever do things.
— Financial counsellor

In some cases, these informal arrangements may be entirely consistent with customary practices (e.g. among Aboriginal people) and is also apparent among people who have not been in jail. However, incarceration brings to these arrangements particular difficulties and consequences. One impact is that informal arrangements may result in additional legal problems because the inmate cannot protect their interests whilst in prison.

    First of all the inmate has to say that they have a Department of Housing property … some of them don't. They just have people sitting in there and we don't know until the Department of Housing has rang and said that, 'There's been a house that's been trashed, and we heard that the person was in jail' and they've been in like for five months. So they've left untrustworthy people there.
— Welfare officer, urban prison

This theme is further discussed in Chapter 8 concerning prisoners' dependence on intermediaries.

Another impact of inmates having informal personal arrangements that are made outside the law is that, if the informal agreement fails, it is more difficult to use the law to assert an inmate's rights and preferences, particularly from prison. In part, this is because inmates have little or no documentary evidence of the arrangements they have made. For instance, Sharon described the care arrangements for her two older children, who had been living with her Aunt while she was been in prison:


    There are no court papers or that saying yes they're in her custody, that she gets to keep them and that. There's nothing like that. It's just that she's had them for so long.
— Sharon, female parolee, 25–34 years, Aboriginal, urban area

Without any formal agreement, Sharon's contact with her children now she has been released from prison is contingent upon her Aunt agreeing to allow access:40

    They come every now and then like when she gives them to me. I really have to argue with her to get them.
— Sharon, female parolee, 25–34 years, Aboriginal, urban area

Finally, in our interviews we also found that this preference for informal processes was also manifest in examples of violent retribution, some of which led to the inmates being incarcerated for their actions. The use of violence by inmates to resolve issues whilst in prison is discussed in detail in Chapter 9.

Consequently, our research indicates that prior to coming to prison, prisoners tend to have arranged their affairs without recourse to formal legal transactions or processes. This can manifest as informal money lending, sub-leasing of housing, unofficial care arrangements for children and the use of violence to settle matters. The tendency towards having informal rather than formal arrangements appears to be, at least, partly the result of a suspicion of the legal processes and a general isolation from conventional opportunities and processes. The impact of this separation from formal processes is that, in the absence of defined arrangements (including contractual documents), it may be difficult to negotiate resolutions when disputes do arise while one party is in prison. In this way, prisoners' ability to use the law to address problems may be somewhat compromised. Without — as they see it — being able to call upon the law, inmates may be drawn towards less conventional resolutions to their problems.

Financial capacity/resources


    I've always been told justice is a commodity — just like anything else. If you've got money, you can get it. If you haven't got money, you don't get it. It's not being cynical, it's a fact.
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

Prisoners' financial capacity and resources emerged from our analysis as a second broad characteristic to affecting how inmates meet their legal needs. According to previous research, most prisoners come from economically disadvantaged backgrounds (Butler & Milner, 2003, p. 23–24; Stringer, 1999). Incarceration further interrupts the income flow as people lose their jobs and, in some cases, their businesses when they go to jail (see Chapter 4). Once in jail, inmates' earning capacity is very limited, ranging from $12.60 a week for 'unemployment benefits' to $63.30 per 30-hour week (including a 'performance component') for highly skilled jobs in the 'business units' (prison industries). More commonly, inmates earn between $20–$30 per 30-hour week in business units and $14–$3241 per week in service industries (NSW DCS, 2006c, ss. 4.6–4.8). In addition, for some inmates, financial resources on the outside are frozen after their arrest and are subject to confiscation:

    … And so people are in jail knowing that their assets have been frozen and their families can't function in their lifestyles, and there's nothing they can do about it.
— Financial counsellor

Lack of financial resources interacts with access to justice in a number of ways. Firstly, as noted in Chapter 4 a person can be kept in jail simply by virtue of an inmate or his family not being able to raise bail:

    For instance, bail might be $200–250, and he can't raise it. For $250 you're going to spend six months in jail 'til your next call. I've seen them ringing around; sister, father, brother. Get somebody to put the $250 down.
— Custodial manager, rural prison

Inmates incarcerated multiple times may also find their family less able to assist:

    … their families and the people who might toss in some money to help them, haven't got the money the second time round.
— Official Visitor, urban prison

Secondly, legal representation and expenses drain inmates' and their families' financial resources. While many inmates are represented at a heavily subsidised rate or at no cost by Legal Aid or the ALS, there is a sizeable group of people who are not wealthy, but have enough income or assets to render them ineligible for legal aid for their criminal matter (Legal Aid NSW, 2006b):

    … I don't think Legal Aid is that available … people have to have zero money in the bank and like no job and be really in dire straits. Where there are a lot of people that might have, you know, a few thousand dollars or a job, and they can't afford to pay for a solicitor, but they're not eligible for Legal Aid either. So a lot of those people go to court unrepresented. They represent themselves and they don't know what to expect. I think it's really tough for the people going to court.
— Probation and parole officer, urban area

With their freedom at stake, some inmates were reported to choose private representation in preference to Legal Aid or the ALS, even though it financially depleted them or their family:

    … getting any legal representation. A lot of them just can't afford to, or their parents might mortgage their homes or, you know, that sort of thing to get money.
— Probation and parole officer, urban area
    And even if you don't have the money, you just want to sell everything you got just to make sure that this guy gets me out of this mess that I'm in, you know. There's no capping …
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Thirdly, the depletion of financial resources through the criminal legal process also affects the type of legal support an inmate can obtain if they have any further legal problems after their initial incarceration:

    Now, if you've been in prison for 17 odd years, you've got no funds. OK? I can't go and hire a lawyer.
— Geoff, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison
    … I haven't got any statistics to back this up, but my feeling would be that a person who gets arrested for the first time, gets a lawyer. Not necessarily a Legal Aid lawyer, because whether they can afford it or not, they get a [private] lawyer and everyone rallies around and somehow or other that works that they get legal [representation] . But second and the third time, no. They haven't got any money. They just don't. It just doesn't happen.
— Official Visitor, urban prison

Consequently, consistent with earlier research (e.g. Stringer, 1999), it was clear from our study that most inmates left jail in a weaker financial position than when they went in. This in turn affected their capacity to re-establish themselves during the post-release period:

    'Cause I got out of jail last time, and I had no support from family or friends. I got no one out there, so. And then I'm stuck in friggin' [homelessness service] for, like, ten months …'til I had enough money to get the bond on this shitty, little, cockroach-infested hole.
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Upon release, prisoners may also face additional debts arising from court costs and any victims compensation restitution for which they are liable (see Chapter 4, 'Legal Issues affecting Prisoners'). Indeed, debt is one of a number of factors (including homelessness, unemployment, addiction issues, as well as being female and being indigenous), which has been associated with returning to prison (Baldry et al., 2006, pp. 28–9). Baldry et al. (2003) found that ex-prisoners who had debt were statistically more likely to return to prison (50%) than those without debt (30%) (p. 14).

It would seem that inmates tend not to enter jail in a strong financial position. While some will be eligible for subsidised assistance from Legal Aid or the ALS, others will have to (or may choose to) engage private representation. As the additional costs of legal representation come at a time when a source of income has been lost because the inmate is incarcerated, prisoners and their families may become further impoverished through the legal process. As inmates cycle through the system for the second or third time, their financial resources, the goodwill of family and friends, and the range of options available to them for legal representation are only further exhausted. Meeting legal needs during successive terms in prison becomes more difficult to sustain and consequently any legal problems not demanding to be resolved tend to go unattended.

Prior experience of legal processes

The third area that affects inmates' capacity to access justice is their prior experience with legal processes. In our interviews, lawyers, DCS staff and inmates alike maintained that inmates were able to draw on their previous experiences with the law to better negotiate legal and custodial systems. However, it will be argued here that the level of knowledge among inmates of the laws and legal processes is not consistently high, accurate or broad enough to cover the range of criminal and civil matters they may face.

Criminal law processes

Lawyers, custodial staff and inmates all commented on the apparent depth of knowledge of the criminal law process displayed by some of the more experienced long-term inmates:


    Yeah, but I'm lucky in that case, you know what I mean. As I've said I've got a bit of knowledge about the law. …

    — Simon, male sentenced inmate, medium security, 35+ years, non-Aboriginal, urban prison

    Most of the old crims in the jail, they know more than you know. They know more than the [Principal Solicitor] knows — where to be able to tap into the services. I can tell you. … They might act ignorant in some ways but really they know.

    — Zone manager, ALS


One interviewee specifically linked this knowledge with their prior experience:

    A lot of them know more about legal technicalities than we do because they've been in the system many, many times and they know all the key words that legal people use. We may not know … I've had instances where I've asked inmates, 'What do you mean by this', and they'll sit and explain it to me. 'This is what happens, this is this, this is', 'Oh, yeah, okay, okay'. You know, like, good lawyers there.

    — Custodial officer, urban prison


However, the confidence and familiarity of some prisoners with the law and legal processes can mask gaps or inaccuracies in their knowledge. By way of example, one very experienced inmate spoke of his anxiety when faced with a legal process he had not encountered before:

    I know a bit, but not as far as parole, 'cause this is the first time I've had to actually apply for it. Every time it's been automatic. But if you don't know about that, you're just plodding along doing your thing, thinking everything's going to be all right. No one's told you what you really need to be doing, when it comes time for parole. It's like, 'Oh sorry, you should've done this and that'. And no one told me to do that. How the friggin' hell am I supposed to know that?

    — Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison


A parole officer who works at a court noted how having partial knowledge, and possibly overestimating that knowledge, could work against an inmate:

    ... I think the magistrates know the streetwise and court wise offenders as well, and, and sometimes they, you know, they don't want to pay the money for a solicitor. They sort of figure themselves they're either going to get the jail [sentence] or a, you know, they've got it all figured out in, in their head, and so they go and speak for themselves and probably don't do themselves any justice. And that's probably a discriminatory thing as well, they don't sort of come across particularly well, or they come across like someone that's used to sort of being in and out of court.

    — Probation and parole officer, urban area


Consequently, inmates' knowledge of criminal legal processes is likely to be biased towards those of their own experience. However, even with 'experience' as indicated by multiple incarcerations, inmates may not have developed the level of knowledge they are attributed with by stakeholders. Their previous experiences may have been tainted by the effects of such issues as limited education, poor literacy, mental illness, alcohol and other drug misuse, and/or the anxiety and stress of the experience itself. As will be illustrated in the next section, these characteristics militate against knowledge and skill being acquired and retained. Further, the presence of an apparently highly informed group of inmates obscures the fact that there are many other inmates who have very little understanding of the law and legal processes in general, let alone the possible course of their own legal matters.

Among the current sample, many inmates indicated that they had limited knowledge about: how to get legal information and advice within jail; what was the likely progress of their own matter; how to interact with their lawyer; and, what were the possible outcomes concerning their matter:


    … some people find it easy, they're used to it. Like myself I wasn't used to it … and when you go to Legal Aid you have got to have everything ready, which I didn't, I didn't know and I just go in and then you know.

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

    See most of the inmates … don't even know that they can get a private solicitor and get partial Legal Aid.

    — Non-custodial staff member, urban prison


Another issue is that, to access legal help from inside jail, inmates must also be able to find their way through the correctional system. As described in greater detail in Chapter 8, the route to getting legal help from within jail may be convoluted, with no single obvious starting point. This is particularly confusing to inmates who have never been in custody before:

    Myself it's not knowing for sure what the system is about I suppose. What I mean by that is who [do] you contact? You know, how to go about getting things. A lot of people … I've seen come in, and they're so naïve about a lot of things. They don't know 'cause they've never dealt with a lot of this before, and they don't know who to actually contact to do these things for them.

    — Mike, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison


As suggested by Mike, those who have not been through legal or correctional systems before rely more heavily than more experienced inmates on support and assistance to access legal help and to participate in the legal processes.

Civil and family law processes

The inmates we interviewed appeared to have less experience and knowledge about civil and family law, than they do about criminal law:


    … civil case are not my field, you know what I mean?

    — Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison

    I don't like to give too much legal advice on kids and that because I'm not up to date with the Family Law Courts, you know, I've never had to deal with them.

    — Simon, male sentenced inmate, medium security, 35+ years, non-Aboriginal, urban prison


How to engage with bureaucracies and how to appeal their decisions were two areas particularly relevant to inmates, but about which they appeared to have limited knowledge. For example:

    Centrelink is a nightmare. It's really, really difficult. And so many people lose their housing, and have no idea how to get it back or what to do. Or don't even know how to get to their Centrelink office or fill in the form to get their benefits fixed. And they come out of prison with a debt, even if they've been on remand. They come out with a debt and it's like, 'Well, what am I going to do about that?' And they just don't have the capacity to even know where to start to address those problems.

    — Worker, CJSN


Thus, in contrast to criminal law processes, which by definition all inmates have been subject to, prisoners may not have previously participated in a civil law process. The tendency, discussed earlier, to not arrange personal matters through the law, only contributes to this lack of experience. The gap in inmates' knowledge may be further perpetuated by a tendency to focus purely on their criminal law matter when on remand. Attention to their civil matters may be further postponed once they are sentenced, as inmates focus on surviving or making the best of prison life:

    And it's often just the last thing on people's minds if they've just been arrested. And you know, we're down at whatever jail they're on remand at, you tell the welfare officer you're on a payment, a million other things going through your mind. You've got so many restrictions on what you're allowed to do and who you're allowed to contact anyway. Last thing on your mind, is, ooh, must call Centrelink

    I think … a lot of them don't worry about that. They, they worry about doing what they've got to do in surviving in here. 'I'll sort it out when I get out'.


Consequently, some (usually long-term) inmates with a lot of experience with the criminal law process appear very 'savvy' about the law and legal processes, particularly criminal law. However, their familiarity and confidence about the law can mask both the gaps in their own knowledge and the presence of many other inmates with considerably less familiarity with the law and legal processes. Notably, the level of knowledge among our sample of inmates about civil and family law processes was considerably less than about criminal law, to the point where, in our interviews, the term 'legal' was commonly taken to only refer to 'criminal law'. This is consistent with inmates having less experience with civil and family law processes and the prioritisation of criminal matters over other legal issues.

At the beginning of this chapter we identified six broad characteristics of prisoners and their histories that can affect the capacity of inmates to access justice. We have discussed the impact of inmates' chaotic lives prior to prison, their financial capacity and previous experiences with the law. We now turn to issues relating to cognitive capacity, literacy and comprehension, before we turn to styles of interaction common among inmates and the impact of prison on life skills.

Cognitive capacity, literacy and comprehension


    Like you're talking to me and it's hard to understand things, where they're coming from and what is it about and all that stuff. Like I sort of get what you're talking about, but I don't understand everything, you know what I mean?

    — Freddy, male remandee, 25–34 years, non-Aboriginal, urban prison

    [IF YOU DON'T MIND ME ASKING, HOW MUCH WAS THE DEBT?]

    I don't know, I didn't even get into it because I'm a bit illiterate and I don't understand a lot of paperwork.

    — Jason, male ex-prisoner, 35+ years, non-Aboriginal, rural area


While prisoners are by no means the only people to face difficulties in reading and understanding legal documents, as a group, they are disproportionately affected by cognitive impairment and poor comprehension skills. Contributing to the high levels of cognitive impairment within the prisoner population are inmates who experience one or more of the following problems: intellectual disability; limited educational opportunities; poor literacy; acquired brain injury (ABI); alcohol and other drug impairment; and, mental illness. Limited proficiency in English is also an issue for a significant minority of inmates. Details of the prevalence of each of these issues among the prison population are outlined in Chapter 2.

A key point to make here is that within the inmate population are people who experience more permanent or long-term forms of impairment (e.g. intellectual disability, poor literacy and ABI) and people with short-term forms of impairment (e.g. alcohol or other drug intoxication or withdrawal, the impact of severe mental health episode or medication, anxiety and stress). Further, as this section will illustrate, some of the temporary forms of impairment tend to coincide with crucial points in the legal processes, such as at the time of arrest and police interview, and attending initial court hearings. This is critical because it is at these times when inmates must draw on their skills to engage with the process when they appear to have the least capacity to do so.

The capacity of an inmate to comprehend legal material and engage in legal processes may be affected by either one or more problematic issues, such as poor literacy, limited educational opportunities, limited proficiency in English, intellectual disability, ABI, substance misuse, mental health issues, anxiety and stress. The major effects of inmates not being able to comprehend legal information, advice or processes, identified in our interviews were:

  • limited understanding of and effective participation in legal processes
  • difficulties in the lawyer-client relationship
  • withdrawing from assistance
  • dependence on others.

Each of these issues is discussed below.

Understanding and participating in legal processes

It was evident from our research that inmates often did not comprehend the legal processes that they are subject to, commencing from the earliest stages of arrest and incarceration. Of note was the prevalence and impact of intoxication and acute mental health issues at these early stages, over and above the longer term effects of limited education, literacy and intellectual disability. For example, Ricky and Karla describe their experience of arrest and their cognitive capacity at the time:


    … in my case, it's from my own experience, you know. Basically, my mouth was my undoing of myself … I was um, smashed at the time, on a cocktail of different drugs. I actually argued it in court, that really everything I told the police was, I believe, they shouldn't have been able to use anyway in court. Because they knew the state I was in and they just let me jibber on and I basically convicted myself with my own interview …

    — Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

    I didn't remember too much of the day — I felt so shocked. I got arrested and they were asking me all kinds of questions, took all my stuff, and I don't really know, but, 'cause I was really shocked, and I was crying a lot.

    — Karla, female remandee, minimum security, 25–34 years, NESB, urban prison


Comments made by prison reception staff suggest that the types of impairment described by Ricky and Karla are not uncommon among prisoners first coming into prison from police custody:

    … we've got lots of people with mental illness and lots of people with disabilities, and I'm sure a lot of those inmates would be in states of confusion and not have a handle on all that's happening. … and the drug users too. We have a lot of people who come in and have to detox and … who knows what they've been through and not been able to actually absorb.

    — DCS policy officer, head office

    … you sometimes will get people who are just off their dial, and that usually becomes then a medical kind of issue; how are we going to manage this until they're a little more compus mentus and that type of thing … sometimes you may even have to re-screen; they'll try and screen and just can't do it [because] they're just talking in word salad and we'll need to see them again when the nurses have them detoxed.

    — Non-custodial staff manager, urban prison


There are a number of implications of the above situation. Firstly it raises questions about the competence of impaired individuals to participate in the legal processes that directly precede their custody (e.g. police questioning, etc.). Second, the capacity of inmates to identify and address legal issues arising from being taken into custody, such as housing and child custody issues, is also likely to be impaired. Finally, delaying the screening process until they are competent may mean that important criminal, civil and family law matters may be identified too late.

Inmates' lack of cognitive competence in these early stages of incarceration continues to interfere with their access to justice when they attend court. For example:


    When you look at the majority of people that appear in the prison system, the level of drug and alcohol withdrawal … they may have just been dosed in the prison cells before they've come up so they're noddy.

    — Staff member, CRC

    You see when I did go to court … he was giving me the information but I wasn't in the right state of mind you know. I didn't want to be there. I was sick. I wanted to get to jail. I wanted to hurry up and come to jail.

    —Liz, female remandee, maximum security, 25–34 years, Aboriginal, urban prison


Consequently, it would seem that inmates, whether affected by drugs, alcohol, mental illness, shock and/or longer term forms of impairment, find it difficult to successfully negotiate the legal processes they are faced with during the early phases of incarceration. Their ability to absorb and impart information, so that their needs can be met, may be significantly compromised by their cognitive capacity during this period, a time when their legal needs are acute.

However, our interviews also indicated that, as inmates settle into prison, they appear less likely to be affected by alcohol or drugs and more likely to be medicated appropriately for their condition:


    And the other experience I think is that a lot of women who get into prison have a drug or alcohol problem. But whilst they're in prison, that is fairly controlled, and so there's a certain clarity and a certain capacity to follow through on ideas.

    — Legal Aid solicitor

    … it's quite interesting to see actually how inmates behave when they first come in. It's one of shock, regret, remorse, before they actually start coping, you know, with being in jail.

    — DCS welfare officer, urban prison


Accordingly, even though many inmates have very poor capacity when first incarcerated, it may be that further into their imprisonment there is a period of clarity and, for those incarcerated long enough to stabilise, an opportunity to address outstanding legal needs. However, it must be recognised that for some prisoners, intellectual disability, language barriers, very limited education or poor literacy will continue to affect their capacity to engage with legal processes throughout the incarceration process and beyond.

Using AVL

As was discussed in Chapter 5, AVL is increasingly being used to enable defendants to appear in court, without having to be physically transported to the court house. However, our interviews have indicated that appearing in court by AVL may add an additional layer of confusion for some inmates.


    I will get more inmates coming back from video not understanding the process than I'll get from people actually physically going to court.

    — DCS welfare officer, urban prison

    [the] first time, I didn't know what to do with the telephone next to me [to speak to the lawyer in court from the AVL cubicle]. I didn't know how to talk to my lawyer. So, it was, you don't get a sort of prior explanation of how the system works.

    [OH, YOU DON'T, NO ONE SAYS?]

    No, no one says anything. They just call you to a room, you sit in there, they've got the cameras there and that. So you don't know what's going on. Really, it's frightening.

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


AVL has a particular impact on inmates who may already have difficulty understanding the court process, due to intellectual disability or language difficulties:

    And audio visual links is an area where the support role is really quite crucial because it's very, very difficult to understand from that side what is actually happening in the court. And particularly for our clients [with intellectual disability], understanding that they're sitting in this room at the jail but they're actually … in court. They don't make the connection that they're actually sitting in court.

    — Worker, CJSN

    [SO WHEN YOU USED THE VIDEO LINK DID YOU HAVE AN INTERPRETER?]

    No. Because … my Asian solicitor was there in the court room and he was representing us to say some, say, you know, yeah, he was speaking for us anyway.

    [DID YOU KNOW WHY, WHAT EACH COURT DATE WAS FOR? DID YOU KNOW, DID YOU UNDERSTAND WHAT THE JUDGE WAS SAYING?]

    No I didn't, yeah. As I said before, couldn't, couldn't speak English, so, yeah.

    — Sam, male sentenced prisoner, medium security, < 24 years, NESB, rural prison


Lack of comprehension, whether due to the complexity of the legal process or the comprehension capacity of the inmate or both, may result in some inmates participating in legal processes with little or no knowledge of what is happening. This appears to occur even though these processes can have a profound impact on their lives. In short, the legal process may progress on the false assumption that the inmate has a certain level of knowledge and understanding. This appears to be exacerbated when inmates appear in court by AVL.

Signing documents

The issue of inmates signing legal documents without fully understanding the contents and implications of the transaction was also raised as an issue in our study. Examples were given of inmates consenting to legal transactions such as parole conditions and agreements with government agencies, without being able to read or understand the obligations they had accepted on paper. For instance, inmates had left themselves vulnerable to breaching bail or parole conditions and AVO/ADVOs, as well as contractual agreements such as tenancy documents and Centrelink agreements, because they did not understand what they were agreeing to:


    There's like a 'Preparing for work' agreement/arrangement. It's just signing off various agreements. And quite often people will say, 'Yeah, I'll sign anything', without necessarily having an understanding or knowing the implications or being able to read something that hasn't been read to them properly.

    — Manager, Centrelink


A financial counsellor working with inmates further observed that:

    … many people who are inmates, who I believe would come under the category of people to whom credit was provided irresponsibly. They don't know. They don't understand. They don't have sufficient skills in numeracy or literacy. They may have a plain English contract. It doesn't register with them. They may have mental or emotional problems.

    — Financial counsellor


Although again a tendency to engage in legal transactions without fully understanding the terms of that transaction is not unique to prisoners, this group are often subject to a range of obligations and conditions, the contravention of which can have considerable repercussions for them. For example, an inmate agreeing to parole conditions that they have not fully understood could well result in their return to jail.

However, it must be acknowledged that, as Elliot, another inmate identified, this lack of comprehension of the legal process may be as much a function of the language and culture of the law as it is a reflection on the cognitive capacity of inmates:


    … For some reason or other they don't get [their probation or parole conditions] read to them and explained … at their intelligence level. And I think maybe [with] Legal Aid, when they put the questions across, they're so used to talking [about] legal things. Like if I was a carpenter and I [told] you to go and put a noggin in the … you'd ask me what a noggin is. So it's just the terminology that's used. Like the guys in here have found it frustrating to them.

    — Elliot, male remandee, maximum security, 35+ years, non-Aboriginal, urban prison

    … they sometimes have a need to see or seek Legal Aid. We then, I give them the relevant forms. Now those forms, I consider pretty complicated for inmates. I see a lot of these inmates, their education standards are, you know, are not as good as it can be, and these forms can be very complicated.

    — Custodial officer, urban prison


Exclusion from programs

A further issue related to cognitive capacity and participation in legal processes was raised in relation to inmates with an intellectual disability (although it may apply a little more widely than this group). According to interviewees from the IDRS and CJSN, inmates with an intellectual disability may not have the same opportunity to participate in educational programs that are required for eligibility for parole. They said:


    … our clients are very rarely eligible for services within like maybe anger management or maybe they've got some sexuality or sexual ...

    [THEY DON'T GET ACCESS TO A REGULAR PROGRAM?]

    No, they can't do any of the programs because

    [WHEN THEY'RE ON PROTECTION?]

    Or any time, because of the disability. So they're just kind of left on their own, in the cell and that's it. And they don't gain any benefit from possibly earlier release because they've done XYZ programs. So they end up usually serving the entire sentence.

    — Solicitor, IDRS and CJSN


The assertion made here is that because of an intellectual disability, inmates may not be able to join educational programs that are prerequisites for parole and so do not have equal access to early release. The interviewees went on to explain why they believed this situation occurs:

    [WHY AREN'T THEY ALLOWED TO DO THESE PROGRAMS?]

    Because it's deemed that because of their intellectual disability they wouldn't have the capacity and there's no extra support for them to do it. Some of it is just [a] value judgement … it's not necessarily correct. … But then, by the same token, most of the programs that are offered are cognitively based which does not work for people with an intellectual disability, and they need to be modified. And there's no one to modify them, or there's no one to provide support so that they can access it and modify it. … they can't do it in the same way as [the] others, and they can't read mail. Very rarely do they read mail. So you know, everything's in printed format. There's homework, which is cognitively-type geared … So there needs to be modifications made but certainly like nowhere near impossible. It would be very easy to do.

    — Solicitor, IDRS and CJSN


In this way, intellectual impairment becomes a barrier to participating in a legal process, namely an application for parole. It appears that the mode by which certain courses are delivered is not appropriate for such people and this renders them ineligible for the course and in turn indirectly makes them ineligible for parole.

Difficulties in the lawyer–client relationship

As indicated earlier in this report, 'access to justice' implies that, with appropriate support or representation, participants in legal processes understand and can make informed decisions that affect their participation in that process and its outcomes. Lawyers and legal assistance services are key providers of that support. However, the client is still expected to understand and be active in this relationship. For instance, they must instruct the solicitor, take his or her advice, recount details of relevant events and provide documentation. It was evident from our research that because of reduced capacity, some prisoners faced difficulties in this relationship and, in particular, in being able to communicate effectively with their lawyers. Difficulties in communications included both understanding their lawyer's advice to them, as well as articulating their instructions to the lawyer:


    — Sharon, female parolee, 25–34 years, Aboriginal, urban area

In Sharon's case, she took her caseworker to meetings with her lawyer so she could have someone explain what transpired to her at a later time. Workers also recognised the difficulties faced by prisoners in the lawyer–inmate relationship given the various impairments with which this group is often afflicted:

    Because a lot of times these people have no communication skills, they have no living skills, no social skills. So it's very hard for them to get across, you know, what they need. And it's also very hard to get people to advocate for them because of those problems. And sometimes along with those mental health issues and behaviour problems that are not really conducive to people helping them, because of their nature.

    — Custodial officer, urban prison


As described earlier, the shock of their situation, together with the anxiety, stress of incarceration and the legal process, a prisoner's capacity is reduced so that it is hard for them to hear the advice they are being given by their lawyers and to act accordingly:

    … I see a lot of people who are in shock I reckon; they really don't have a clue and I think that is a huge barrier to them actually taking [it] in. Their lawyer may well have given them written advice but they are not in a position, they are just not in the mental state where they can take it in.

    [When you say shock, shock from the fact that they have ended up iN [PRISON]]?

    Yeah, they have killed their best friend, or they have done something terrible or they have ended up in the cells and all of a sudden they are at the MRRC; and particularly first timers. But even people who aren't in the system … they could have been rolled around in a paddy wagon for a couple of days as well and they really are in a mental state. Particularly the MRRC I think where they just haven't taken in what has happened to them. So a lot of our job can be reiterating what has already been said to them … you get people who are sentenced and they will go, 'Oh I don't know what happened.'

    — Legal Aid solicitor


The situation is exacerbated by the systemic constraints that commonly affect lawyer–client relationships involving prisoners:

    … time is of the essence at court. And the reality is that [the] Legal Aid solicitor has five minutes, 10 minutes even 15 minutes with the inmate. If that inmate gets frustrated … the limited communication they may have, goes out the window … They can also get focused on one point. And sometimes that point is actually completely irrelevant or not what they need to be focusing on.

    — DCS welfare officer, urban prison


Aspects of the systemic environment that severely compromise communication between lawyers and their prisoner clients are further discussed in Chapter 7.

A number of interviewees reported that, when inmates did not understand what they had been told by their lawyers, they did not necessarily admit to their lawyer that this was the case:


    … the issue of intellectual disability, mental health, just poor education levels, … they're not spoken to in an appropriate manner … and they're too embarrassed to say, 'I have no idea what you're talking about' and so they shake, they nod their heads and everything … the Legal Aid solicitor can walk away and think, 'Well, I explained everything and they said yes', but the person has no idea.

    — Staff member, CRC

    … They just accept what's been said and walk away not knowing what's been said … They don't bother complaining about it, they just come away and say, 'I didn't understand what he was talking about'. I said, 'Well you shouldn't have told him that, or should have told her that'.

    — DCS client services officer, head office


As these quotes indicate, solicitors may leave an inmate unaware that their client has not understood the advice they have been given. Consequently, not only is the client left with an incomplete picture about their case, the lawyer may also be labouring under the false impression that he or she has all the relevant facts about the matter. This is because they are not aware that the inmate could either not express themselves properly and/or did not understand that there were some particular facts they should have disclosed. Effective participation in the legal process in such circumstances is clearly undermined.

Withdrawal from assistance

Our research has indicated that as a result of not being able to read or comprehend legal material, advice or legal processes, some inmates withdraw from legal help. In some cases inmates did not to seek out legal information and assistance while, in other cases, they actively avoided help:


    Some of them can't read and write. So they don't even bother accessing any [other] information.

    — DCS client services officer, head office

    Literacy obviously plays a part. Another thing that we often come up against as barriers is their experiences in school libraries. They have really been put off libraries, hugely by the school library. And especially if they are not too literate and they are not readers, they don't come near us. And they may not think of us as a legal information provider. Unless somebody says, 'Did you know you could do this?' But a lot of them have not been in a library in their life.

    — DCS library staff


One worker described an instance when an inmate hid from her legal counsel because she did not understand what he was telling her:

    So I had a young girl … the ALS kept sending a barrister out which cost them nearly over a thousand bucks each time he came out. And basically I had to go down and get her out of the cell and say, 'You are going to see him.' And the only reason she didn't want to see him is the fact that she didn't understand what they were talking about.

    — DCS client services officer, head office


As a result, inmates can become further alienated from the services that are there to support them:

    And then if you are also dealing with things like either an intellectual disability or very poor literacy rates or low education rates or any of those things and someone wacks a twelve page form in front of you. A lot of people just say, 'You know, I never wanted that house anyway'.

    — Homelessness worker, urban area


Consequently, an inability to comprehend legal information or advice, whether because of low literacy levels, anxiety, intellectual disability or limited English, may result in inmates avoiding assistance. Perpetuating this problem is a sense of shame. Consistent with participants in other Foundation research (Forell et al., 2005, p. 122–123), some inmates in this study reportedly masked their inability to read or understand information and advice relevant to their legal problems. As a number of workers noted:

    … it's not very easy for someone who can't read and write to go and say to someone 'I can't read and write. How do I fill out this form?' and it's just miserable and awful to watch. And sometimes we find that is one of the most painful things for people to recognise with us. It's like, 'Oh yeah. They'll tell us about the heroin habit. They'll tell us about the criminal history. They'll tell us everything.' And it takes ages to actually discover that they can't read and write and their refusal to deal with [certain issues], whether it's housing or anything else, is simply that fear of confronting one very small thing.

    — Homelessness worker, urban area

    … nobody wants to, for example, fess up that you can't read.

    — Solicitor, ALS


Accordingly, not only does the person avoid assistance because it is confusing, they are unlikely to be open about the real reason for avoiding help due to a sense of shame. Lawyers and workers may not be aware of, or may misunderstand the inmates' motivations for not seeking assistance, adding to the challenge of addressing their concerns.

Dependence on others

A final impact of not being able to read or understand legal documents or processes is a dependence on third parties for assistance. Inmates who cannot read or understand material often rely on others to pass on legal information, to read legal documents or to explain contracts or legal agreements (e.g. parole conditions). A good example includes inmates from non-English speaking backgrounds.


    [The Information leaflet] outlines basically the running of the jail … Methadone times are such, pills, whatever. Visits on Saturday [are] such a time, all well and good. But to an Asian inmate he will just look at it and it means nothing to him. So he's off to a bad start. So he will come to me, or a wing officer, and try to communicate. And we'll try to get by the best we can, and then no doubt he will be looking out for someone else of a similar background or nationality who might be able to help him.

    — Custodial officer, urban prison


While inmates who do not speak English may have access to an interpreter at court or in formal conferences with their lawyers, they are often dependent on DCS staff and other inmates from the same language background to explain prison processes, legal processes and to interpret documents in their day-to-day life in prison. Details of the particular vulnerabilities of being dependent on a third party in a correctional environment are further discussed in Chapter 8.

Summary

Effective participation in the legal system demands a cognitive capacity, which many inmates do not have. Their lack of such capacity may be either temporary – due to acute mental illness or because of their alcohol or drug related issues – or it may be a more permanent problem because they are suffering from an intellectual or other disability. Effective participation also demands an ability to communicate relevant information succinctly (e.g. in a short conference with a lawyer before court) and to comprehend relatively complex written text and at times complicated legal language, in a very formalised and intimidating environment. The prevalence of poor literacy, low levels of education and limited English among prison inmates reduces the likelihood that the inmates will meet these demands and participate fully in legal processes.

Of further concern was the ease with which the inability of inmates to fully comprehend legal information, advice or outcomes could be overlooked. Previous experience or time inside can be taken as a proxy for knowledge, even though intellectual disability, anxiety and stress, or other cognitive impairment may have prevented information about the legal process being assimilated and retained. Lack of capacity can also be masked by bravado or silence as an inmate may be too embarrassed to admit that they did not understand or cannot read. Finally, people can be so intimidated or overwhelmed that they withdraw from legal help and, as will be demonstrated in the next section 'Life Skills', simply 'take what comes'.

Life Skills

A final aspect raised by interviewees in this study was the issue of life skills. In the context of this report, 'life skills' mainly refer to interpersonal skills (such as the way inmates interact with each other and the authorities) and their daily living skills (such as managing finances and using new technology). It became apparent that the ability of inmates to prevent and address their legal issues was dependent on having appropriate and effective interpersonal skills as well as general living skills. However, there were many examples given where inmates' capacities on these two fronts were inadequate and in some ways a function of their incarceration.

Interpersonal skills


    … So I think you can get a lot of information. You can get resolution. But it depends on the personality of the inmate.

    — DCS welfare officer, urban prison


Our interviews have suggested that some inmates are excellent at accessing services and utilising legal and administrative systems, for example: finding a lawyer, organising with SDRO to repay fines, running an appeal against their conviction or facilitating visits with children from which they have been estranged. They are skilled at dealing assertively and appropriately with government agencies and can effectively engage with and instruct their lawyers. At a roundtable of solicitors and barristers, observations included:

    What amazes me is that some inmates can seem to be able to do 200% and other inmates are in the negative. And that is obviously personality. I get calls from some inmates where I say 'Gosh why are you ringing me again? How do you get access to the phone?' They do. Other inmates say, 'Look it has taken me a month to get to the phone.'

    — Legal Aid solicitor


However, while some inmates are extremely effective at accessing legal help, other inmates are not so able to achieve the tasks necessary to effectively participate in the legal system. Two dominant styles of inmate interpersonal behaviour were identified as pertinent to inmates' access to justice in the present research. The first was a tendency to passive behaviour and withdrawal from problems and assistance. Aggression was the second style of behaviour, with appropriately assertive behaviour being less evident.

Passivity

The persistence and success of some prisoners in pursing their rights appeared to mask the fact that many more inmates are not assertive and will not take action concerning their legal issues or seek redress. Resignation and acceptance of situations, even when that situation was less than satisfactory, seemed to be one reason behind this absence of action:


    … They're not used to asking and they're not used to picking up the phone and asking for things, or querying things or questioning things. Or if they get an answer that doesn't make sense, they don't think they can say, 'Well, hang on, that's not making sense to me.' And so they just kind of accept things that maybe other people might not accept.

    — Probation and parole officer, urban area


Some people appeared to accept the situation as it is, because they believed any action they undertook would not make any difference:

    [AND HAVE YOU EVER BEEN SERIOUSLY UNHAPPY WITH THE LEGAL ADVICE YOU RECEIVED?]

    Oh yeah, just like when they don't give a fuck [laughs] … but I've got no money so there's nothing I can do. I've just got to cop it on the chin.

    — Damon, male sentenced prisoner, medium security, 25–34 years, non-Aboriginal, rural prison

    Yeah, I'm just sort of forgetting about it, and just kicking along, you know. I'm not worried about it. You know, if they pay me they pay me, if they don't they don't, you know. There's nothing I can do about it. It happened before I went into jail, so you know.

    — Gareth, male ex-prisoner, 25–34 years, non-Aboriginal, rural prison


Previous experiences have sometimes fuelled this perception that taking action is not effective:

    I don't see that anything is going to happen if I put a complaint … for what I've been experiencing in the system, I could complain, but it's like, nobody's going to hear what I have to say …

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

    … some of the black inmates just won't ask for help. Because they're used to not getting it.

    — Custodial manager, rural prison


Others felt that the process for taking action was just too difficult or felt worn down by the process:

    I've given up on trying to get some legal action while I'm in jail. It's just too hard. It just drains you of all that get up and go.

    — Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison

    By the time it all gets into court and everything they just want to get it over and done with. So whether they're guilty or not, they'll go, 'Guilty your Honour.' just to get it over and done with.

    — Langdon, male sentenced inmate, maximum security, 35+ years, Aboriginal, urban prison


Interviewees also identified certain subgroups of inmates, such as those with intellectual disability, as being less assertive than others. For instance:

    They're not necessarily assertive so, you might have a prisoner … in jail who will demand to get a phone call to his lawyer. Our [intellectually disabled] clients would not do that in a million years.

    — Worker, CJSN


Motivation was also reported to be impaired, for some, by medication or illicit drug use:

    And you don't really care as much, I suppose. You're not as aware as when you're straight of everything. [When you are straight] you're a bit more aware and conscious of what's going on. And when you're on that stuff [methadone], you're like zonked out. Whatever happens, happens.

    — Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison


There were also examples of this passivity pervading inmates' relationships with their lawyers. This is problematic, as the inmate should be instructing their lawyer and their lawyer should be acting accordingly:

    They have a right to say to that solicitor, 'No, I will plead not guilty.' or, 'No, you will say this on my behalf.' And they still have a major problem with that. In being that assertive with their solicitors … Without getting aggressive.

    — DCS welfare officer, urban prison


A theme that runs through the comments made above is that, in the view of some inmates, the odds of achieving fair outcomes through taking action were low. The passivity of inmates appears to be fuelled by the view that either there was nothing that could be done to address the problem, that the problem is too difficult to address or that the situation is just 'the way things are' and/or is what they deserved in the first place. It may also be that the depression and despondency among inmates described below contributes to these views. Further, as discussed in Chapter 9, passive behaviour — following orders and accepting the routine — appears to be reinforced by the jail culture.

Depression and despondency

It was evident from the interviews that depression and despondency contributed to prisoners' passivity in addressing their legal and other needs:


    I got so depressed I don't care and, I know, it's almost June and I still haven't contacted Telstra to tell them, or work out how I'm going to pay this bill.

    — Ryan, male parolee, 35+ years, non-Aboriginal, rural area

    … First of all, their morale is just rock bottom. A lot of people … want to close down and they don't even want their families to come and visit them, because they just feel they are in a hopeless situation.

    — Spokesperson, Justice Action


Not surprisingly, the situation inmates find themselves in can contribute their feelings of depression and despair:

    … but you think you're going to get ten years. It's a lot, that's the better part of my life gone. Game over, you know. You might as well just friggin' knock yourself. Some people get like that, depressed, when you first come in. Especially when you're at Silverwater and that; it's real crazy in there. People getting bashed and just nutters, and you think, 'Man, what've I done? I'm in here with all this violent friggin' circus, probably going to do ten years,' and you get a bit depressed.

    — Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison


Workers described the impact of depression and despondency on the capacity of inmates to ensure that their matters were progressing:

    Also depression is a major issue … If people are depressed, people do not want to act. Their legal issues go to the back of the line and may not be dealt with until the last minute.

    — Community Referral Service, NSW Law Society

    So the inmates that [are] despondent, sometimes I think, it's not that they get [a] lesser level of service, but they can just get a little bit forgotten. You know? Or someone doesn't push quite as hard for them, because they're not as vocal. And that's … when they get despondent, they become less vocal.

    — DCS welfare officer, urban prison


Shame

One other emotion identified by a number of inmates as reducing their preparedness to seek legal help, was the sense of shame and embarrassment about the trouble they were in, particularly when they first came into custody:


    [AND HOW COME YOU DIDN'T GET SOMEONE TO REPRESENT YOU? WAS THERE ANY REASON?]

    Yeah well, because I didn't have any. I wasn't sure, it was just part of that shock of being arrested and coming next day to the court you know. So, I didn't contact no one, I wasn't sure if I could, if I should contact someone, maybe get away from this, and not [laughs], not let anybody know that I was in such trouble.

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


While some inmates were very active in pursuing their legal and other needs, many inmates were not so assertive. Feeding into this passivity were feelings that taking action would make no difference, that it was too hard or that they 'deserved' the situation in which they now found themselves. Low self-esteem, a depleted sense of entitlement and a sense of shame, together with depression and anxiety, also appeared to act as barriers to inmates taking action to address their legal issues. Certain groups of inmates, such as Indigenous inmates and inmates with cognitive impairment may be particularly vulnerable to this passive, defeated state. Finally, the broader literature has suggested that prisoners' levels of passivity may also increase and that they may become more socially withdrawn as they settle into prison life (Paulus & Dzindolet, 1993, p. 164).

Aggressive, not assertive, behaviour


    They're used to doing one of two things. Ignoring it or going off about it. They're actually not used to doing the in-between – negotiation.

    — DCS welfare officer, urban prison


Inmates' lack of assertiveness was a common theme raised during our interviews. In some circumstances this appeared to result in the passivity described above. However, in other cases inmates were reported to revert to more agitated and aggressive behaviour:

    And I think, like they haven't got that assertiveness. I mean they have it … but sometimes it comes out in the wrong way; then it's their aggressiveness.

    — Chaplain, correctional centre

    A lot of these people that we are working with, marginalised, don't know their rights. Hence, they come in aggressive, thinking they can assert their rights but they don't know what they want to ask for. But, they want to appeal a decision, they don't agree with a decision.

    — Manager, Centrelink


Some inmates described aggressive forms of behaviour as 'their way of doing things' or the way to achieve a result:

    … If you go off in there, you can get extra phone calls and they'll go out of their way a little bit.

    [WHAT DO YOU MEAN, IF YOU 'GO OFF'?]

    Start throwing things, going nuts just to get, 'Hey I need to ring this man!'

    — Barney, male ex-prisoner, 35+ years, non-Aboriginal, rural area


The boundaries between assertive and aggressive behaviour may not always be clear and for some inmates, aggressive behaviour had assisted them to achieve their goals. Indeed, like passive behaviour, it appeared that aggressive behaviour can be reinforced in custodial settings (see Chapter 9). In this case, aggression can aid survival in prison, to maintain status among other inmates or gain attention from service providers:

    The squeaky wheel gets the oil. So, the inmate who's yelling, 'Welfare! Welfare! Welfare!', you'll eventually see them just to shut them up, right. It's no different with solicitors. If you've got a client who's [saying], 'Right. I want to know what's happening next week.' You know? You're more on the ball for them. And that's human nature.

    — DCS welfare officer, urban prison

    And socially, they've been used to dealing [in] that whole aggressive versus assertive [way]. So they're actually used to and in many respects, in the yard, are forced to use an aggressive pattern of communication and yet they are meant to be able to just pop on the phone and go, 'Oh!' and be nice, polite and assertive.

    — DCS welfare officer, urban prison


With a tendency towards either passive behaviour or aggressive behaviour, inmates were reportedly poorly practised at being assertive in order to gain assistance. Further, the behaviours that are conventional in the prison context, such as, aggressive 'survival' style habits suited to the prison yard, are likely to be counter productive in non-prison settings.

Impulsivity

Another factor contributing to more aggressive styles of behaviour, according to a small number of interviewees, was a degree of impulsiveness and impatience evident among inmates:


    Because many of our clients have mental health and drug and alcohol issues. They're the busiest people you'd ever want to meet in your life. They cannot wait five minutes, they're really busy, they've got to be doing this and going there and, 'I can't wait, I can't wait.' So them going down to Centrelink, and we've got a few clients that have, you now, got a twelve month ban from Centrelink anyway because of their behaviour … they just haven't got the patience.

    — SAAP worker, urban area


Impulsiveness also presents a particular challenge for inmates once the physical boundaries and routines of prison are lifted post-release. Inmates report not always being able to cope with the loss of these boundaries after their release. This may leave them vulnerable to re-offending:

    … when some of the guys get out of jail … they're pretty much lost, you know? They're like a little kid in a fun park. Doesn't know which way to go. You know? And doesn't know the safety rules of the rides. You know what I mean? You know, he's got no one there to point out how to do his seatbelt up, you know, so to speak. Or how to bring that thing down, that keeps you in, you know what I mean, on the ride. You know what I'm trying to say?

    — Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison


Previous research has identified impulsiveness as a characteristic of those committing certain types of criminal offences and, by association, a trait of certain subgroups of prison inmates. For instance, Makkai and Payne (2003) reported from their study of incarcerated drug offenders that:

    regular amphetamine users were more likely to be engaged in violent offending such as physical assault and were significantly more likely to act impulsively with no planning. (Makkai & Payne, 2003, p. xvi)

In a discussion of the epidemiology of prison violence, Butler and Kariminia (2005) assert that 'the link between impulsivity and offending has long been established in the criminology literature'. International literature reports high levels of Attention Deficit Hyperactivity Disorder (ADHD) among adult prisoners (e.g. Roesler et al., 2004 and Rasmussen et al., 2001). Having reviewed relevant studies, Barkley, Murphy and Fischer (2007) concluded that 'adults who engage in antisocial activities, especially as reflected in adult prisoners, are more likely to have ADHD than would be expected by chance alone' (p. 309). Butler and Milner (2003) also draw a link between impulsivity and brain injury in their research into the health of NSW inmates. Their data on the prevalence of high brain injury among NSW prisoners is outlined in Chapter 2 of this report.

In summary, our analysis suggests that inmates tend towards both passive behaviour and/or aggressive behaviour and appear least practised and less skilled at dealing with issues assertively. Further, these behaviours, although generally maladaptive, may actually reflect modes of behaviour that achieve inmates' goals in the prison environment (see Chapter 9).

Preferred modes of communication

Another aspect of interpersonal skills concerned the modes of communication in which inmates best preferred. It became evident in our interviews, that some inmates had difficulties with certain forms of communication. For instance, one officer identified many male inmates as being poor at communicating effectively by telephone:


    So the thing that the guys in particular are really bad at … communicating on a telephone. So that medium itself makes it even more difficult for them, than being face- to-face. A guy is much, much better face-to-face. You put them on a phone and a lot of the time they don't even know what to ask. They know it up here in their heads, but they don't know how to actually express it. … And that's another big barrier for them. Because most of the information [they can access] in here, is going to get to them via the phone. So the face-to-face [information] is really, really important with them.

    — DCS welfare officer, urban prison


We identify the mode of communication as an important issue because telephone based services probably represent the most direct, accessible professional legal advice available to inmates. Face-to-face legal advice was identified as the preferred mode of communication for most inmates, but due to the systemic barriers identified in Chapter 7, this form of advice is less readily available, particularly for civil and family law matters.

The other mode of communication open to inmates is by letter. However, as identified earlier, the low literacy and education levels within prison reduce the utility of this form of communication for some inmates. Accordingly, inmates' own variable personal skills and styles of communication add another layer of complexity to the provision of legal assistance in prison.

Summary

Styles of interaction used by the inmate population, namely passivity and aggression, and inmates' preferred modes of communication (e.g. face-to-face, or at times, fist-to-fist) interact with the issues identified earlier in this chapter, which affects inmates' capacity to ask for legal assistance, understand the advice or information given, and to appropriately participate in legal processes. While some inmates are very effective at getting their needs heard and addressed, many more inmates are not so assertive, to the extent that they will not seek to address problems they are facing or get any assistance to do so.

In contrast, other inmates may resort to behaviour patterns that have been adaptive in the prison or other contexts and are aggressive in their attempts to address their needs. Again, the frustration of trying to get information about the progress of their legal matters and to address legal problems from within jail may further encourage this type of response. Once the very defined boundaries, routines and support networks of prison are removed, some inmates find it difficult to successfully modify these behaviours to those more conducive to receiving assistance on the outside. While this may also be true of people institutionalised in other settings, it remains a pertinent issue for prisoners.

General living skills

Having operated outside the mainstream before coming to prison, as argued earlier in this chapter, some inmates come to jail not highly skilled or practised at effectively managing their personal affairs or dealing with conventional society:


    Especially when you're not functioning in the normal community; you're not getting normal pay and you're, you're in a lifestyle where you might be rolling in it one day because you've just sold some drugs or you've won at gambling, and then you might have a couple of weeks of nothing. So there's no, no chance to really build normal skills when dealing with credit. Even budgeting, basically.

    — Financial counsellor


This is particularly the case if people had led the types of chaotic lifestyles described earlier:

    Where our clients who, prior to custody or their dealings with the laws and the courts, were normal people who were successful, had houses, bills, debts, families and they're used to managing situations. And the jail system is a lot easier for them to manage. Where those who are not used to managing their situations, live on the streets, take drugs, a lot of 'em steal for their living, every minute of the day really is a struggle.

    — DCS welfare officer, urban prison


While inmates may undertake education courses in jail to improve particular skills, there is little scope within the routine of prison for inmates to make decisions about or take responsibility for their day-to-day lives. Furthermore, inmates are detached from day-to-day responsibilities of the outside world such as budgeting, paying bills, caring for children, arranging work or finding accommodation. A number of stakeholders suggested that inmates lose the confidence and capacity to perform some of these daily tasks:

    Some people I've worked with in the past year and on other occasions have raised the issue of when people come out, especially after long periods of time in jail and how de-skilled they are in dealing with society.

    — Policy officer, PIAC

    Well it's probably something that some have lost, you know. Got so institutionalised that they've lost any skill in trying to take those steps and do it.

    — Chaplain, correctional centre


For those who have been in the system a long time, some may fear their release because of their lack of skill:
    the closer I'm getting to going home, or getting out, the more terrified I am … Not of re-offending … it's nothing to do with that. In here, everything's laid out. But not out there. And I can understand why the boys get to thinking, 'Oh, shit … gee, I've got to pay those bills. There's another bill. Job, where's me job, and the house; well, I've got to deal with all that. I've got to get a place.'
— Dan, male sentenced prisoner, 35+ years, Aboriginal, rural prison

In an analysis of the effects of long-term incarceration, MacKenzie and Goodstein (1985) described a process of prisoners becoming 'institutionalised':
    … losing interest in the outside world, viewing the prison as home, losing the ability to make independent decisions, and, in general, defining oneself totally within the institutional context. (MacKenzie & Goodstein, 1985, p. 398)

The separation of prisoners from their issues 'on the outside' has also been identified in the literature as an effect of time in prison (Paulus & Dzindolet, 1993, p. 149 and MacKenzie & Goodstein, 1985). This description appears to combine a number of other characteristics of inmates described in this chapter — the increasing passivity and the loss of confidence and skill — demonstrating how these characteristics and phenomena interact and confirm one another.

Yet it is not just the case that an inmate becomes deskilled at managing themselves and their affairs while in jail. While inmates are incarcerated, technology in the outside world is rapidly changing and moving on. By the time they are released, inmates may not be familiar with, or at least not confident to use, technologies and communication mechanisms, which have advanced since their incarceration.

For instance, recognising that prisoners have no access to mobile phones or the internet, an inmate jailed for, say, five years may have no experience of internet banking, have never used BPAY, or filled out an application form online. They would not be familiar with SMS messaging or third generation mobile phones. An inmate who has been incarcerated for 10 years may have never seen the 'Google' search engine, and may be alarmed at the extent of information that is available on the internet. All inmates are coming out into an environment where mobile phones are replacing landlines as a primary form of contact/communication. Thus inmates may be uncomfortable or at least unfamiliar with technologies that are helpful in accessing legal assistance.

Conclusion


    It's difficult enough for somebody that's educated, confident [and] forceful to get what he wants through the system. If you're young, Aboriginal, uneducated and you're not used to talking to people in authority, you're starting [at] a disadvantage there. You've got no money and you have to depend on the public purse to get your lawyer.

    — Custodial manager, rural prison


This chapter has outlined how the personal histories and experiences of inmates, their cognitive capacities and personal characteristics all contribute to the legal issues faced by prisoners and their capacity to resolve their legal needs. It seems opportunities to access justice may be missed because of (among other things) barriers relating to the inmate's personal capacities.

Prisoners commonly reported that their lives had been spiralling out of control prior to their coming into custody. They had commonly experienced mental illness, alcohol and other drug misuse, difficult and unhealthy family relationships, criminal activity, prior custody and poverty. As a result, inmates often had gone to jail with multiple legal issues (criminal, civil and family), the extent of which they were not necessarily aware. Further, inmates had tended to have made financial, family and living arrangements outside formal legal processes. Having severed or damaged connections with sources of assistance and lacking trust in formal legal processes, some inmates were also reported to be drawn towards more marginal solutions to their issues. Some prisoners saw the most ready course of action to resolve issues as being those outside the law (e.g. informal negotiations), and in some cases, against the law (e.g. violent retribution or 'settling' of a score). The range of options that inmates saw as open to them appeared further limited by their usually depleted financial resources and lack of appropriate documentation.

To successfully address legal issues, it helps for inmates to be motivated, tenacious, articulate, patient, organised and familiar with the law and the relevant legal processes. In contrast, the profile of the prisoners in NSW is characterised by poor literacy, mental health issues, histories of alcohol and other drug misuse and cognitive impairment. Many prisoners have had limited or interrupted education. Periods in custody, separated from society and its processes, only lessen inmates' confidence and skills at being able to function constructively when they return to the community. Without recourse to the necessary skills or support to address legal issues, inmates tended towards maladaptive interpersonal styles.

A particular concern raised in this chapter was the ease with which an inability of a prisoner to comprehend legal information, advice or outcomes could be overlooked. Assumptions can be made about how much a prisoner has learned and understands about the process, from their previous interactions with the law. These assumptions may be wrong, particularly if the inmate did not have the capacity to 'take in' what was going on during those earlier processes. Further, inmates may mask any lack of capacity by bravado or by silence, because they are too embarrassed or overwhelmed to admit that they do not understand the advice or cannot read the information. Difficulties understanding and engaging with lawyers and the legal process also appeared to alienate inmates from using the law in their interests, with some prisoners actively avoiding legal help. Inmates were reported not to use the legal system to redress injustice because, in their experience, it was intimidating, incomprehensible and unlikely to operate in their interests. When compelled to participate, some people did so in a state of ignorance and ensuing anxiety.

While many of the characteristics identified in this chapter — intellectual disability, alcohol and other drug related impairment, passivity, aggression and a tendency to shy away from formal legal processes — are not unique to prisoners, the impact of each of these characteristics on access to justice is exacerbated in a custodial setting. When prisoners are released from jail, their prison time adds another layer to their increasingly complex histories. Inmates return to the community carrying their status as 'ex-prisoners', with attitudes, demeanour and skills that undermine their chances of surviving in the mainstream world.



MIN refers to the Master Index Number, which is an identity number given to an inmate when they are first incarcerated. Prisoners retain this number for all subsequent incarcerations.
It should be noted that Sharon.s placement of her children with an aunty, while not formalised in mainstream law, reflects a common construction of family in Aboriginal societies whereby .the family unit in Aboriginal societies is extended with many relatives, and often whole communities, sharing child-rearing responsibilities with the biological parents.. (LRCWA, 2006, p. 276).
The figures given are as at 31 March 2006. The higher figure of $32.40 a week includes a 35c per hour loading for .essential positions. such as head cook, motor mechanic, plumber, carpenter, etc.

39  MIN refers to the Master Index Number, which is an identity number given to an inmate when they are first incarcerated. Prisoners retain this number for all subsequent incarcerations.
40  It should be noted that Sharon.s placement of her children with an aunty, while not formalised in mainstream law, reflects a common construction of family in Aboriginal societies whereby .the family unit in Aboriginal societies is extended with many relatives, and often whole communities, sharing child-rearing responsibilities with the biological parents.. (LRCWA, 2006, p. 276).
41  The figures given are as at 31 March 2006. The higher figure of $32.40 a week includes a 35c per hour loading for .essential positions. such as head cook, motor mechanic, plumber, carpenter, etc.


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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