ContentJust Search pageLJF site navigationLeft navigation links
LJF Logo
Publications sectionJustice Awards sectionResearch sectionGrants sectionPlain language law sectionNetworks section
Just Search
 
Research Report: Taking justice into custody: the legal needs of prisoners
cover image

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



Print chapter
Search or view whole report
View PDF

Chapter 2. Background


Prisons and the prisoner population in NSW

One reason for our focus on the legal needs and access to justice of prisoners is that there is a concentration of disadvantage experienced within the prison population across a range of indicators, and there is evidence that prisoners may experience a unique range of barriers in meeting their legal needs. This section draws on existing statistics and literature concerning the level of disadvantage experienced by prisoners as a group and what is known about their legal needs. The profile of the NSW prison population provided in this chapter is largely drawn from NSW DCS and Justice Health statistical collections and empirical research, and only refers to inmates in full-time custody.

Prisons in NSW

As at early 2007 there were 31 government operated prisons operating in NSW, one privately operated prison and fourteen 24-hour court cell complexes (SCRGSP, 2007, Table 7A.2). Currently, only eight per cent of NSW inmates are held in the privately run prison, compared to, for example, Victoria where 42 per cent of inmates are held in privately operated prisons (SCRGSP, 2007, Table 7A.1). A new 600-bed prison opened in Western NSW in September 2007, and two more prisons are being built (a facility for Indigenous prisoners and another 500 bed facility). Two existing correctional centres are also being expanded.

The recurrent net cost of corrective services in NSW in 2005–06 was $189.70 per prisoner per day (excluding capital costs). By way of comparison, $10.40 is spent per offender per day in community corrections (SCRGSP, 2007 Table 7A.7).6

Prison staffing

Prison officers are tasked with maintaining the security and good order of the prison (King, 2006). It may also be the case that prison officers help inmates' to access justice, for instance by providing information, and by ensuring there is ample security available (e.g. in the form of escorts, etc.) for services (such as the library or legal visits) to be facilitated. As well as custodial staff, all prisons have education and specialist program staff, including psychologists and alcohol and other drug workers. All prisons apart from Junee have specialist welfare staff. However, at Junee prison, “welfare” is part of the custodial officers' 'case management' role. DCS describe the case management of inmates as:

    … a collaborative, multi-disciplinary process which assesses, plans, implements, co-ordinates, monitors and evaluates options and services to meet an individual's needs. (NSW DCS, 2006c, s. 2)

In a study of the changing role of prison officers in South Australia, King (2006) observed that conceptualising the prison officer as 'case manager' 'can involve a winding back of the engagement of other human service specialists, such as psychologists and social workers in the prison environment' (p. 151).

Given the assistance they provide, custodial and non-custodial staff ratios in different parts of the prison system could have a bearing on inmates' access to justice. While staff-prisoner ratios are not publicly reported, figures may be extrapolated from published documents.7 Our analysis of these data indicate that while the average numbers of prisoners in the system has increased dramatically in recent years, the prisoner to staff ratio (in custody and periodic detention) has remained fairly consistent since 1999: at around 2.2 prisoners to each staff member.8 However, because these figures describe the average number of staff (custodial and non-custodial) in all prisons, periodic detention centres, courts and transport services, they may mask considerable variations in staff ratios within the system (e.g., between periodic detention centres, correctional centres and transport services, between different correctional centres or wings, between custodial and non custodial staff, on different shifts etc). To our knowledge, no more detailed figures were available at the time of writing.

Prisoners in NSW

In 2005–2006 there was a daily average of 9 101 prisoners in NSW (SCRGSP, 2007, Table 7A.1). The highest number of full-time prisoners on any one day was 9 354 (NSW DCS, 2006b, p. 7). The number of people coming to prison has been steadily rising in the last 10 years and DCS predict that the average daily prison population will be 10 000 by the year 2010 (NSW DCS, 2005a, p. 9).

Imprisonment rates

The imprisonment rate of people in full-time custody in NSW is 173.4 per 100 000 of adult population, higher than the Australian imprisonment rate of 156.4 per 100 000 (Table 2.1). At 2 199.7 per 100 000, the imprisonment rate for Indigenous Australians in NSW is more than 16 times higher than for non-Indigenous Australians.

Table 2.1: Imprisonment rates (per 100 000 adults) in NSW and Australia, 2005–06

NSWAustralia
All prisoners
173.4
156.4
Male prisoners
327.0
295.8
Female prisoners
24.4
21.1
Indigenous prisoners
2 199.7
2 030.6
Non-Indigenous prisoners
134.9
118.7
Source: SCRGSP, 2007, Table 7A.4

In 1999 the NSW Legislative Council commenced a Select Committee inquiry into factors responsible for a notable increase in the prisoner population in the previous five years (NSW Legislative Council, 2001). The inquiry concluded in 2001 that:

    The causes of the increase in the prison population are complex. The prison population can fluctuate considerably as a result of legislative, judicial and policy changes, irrespective of any changes in actual crimes committed. There has been no evidence from agencies such as the Bureau of Crime Statistics and Research (BOCSAR) to support the proposition that an increase in actual crime, as opposed to increase [sic] in police activity, is an underlying cause of the increased prison population.

    A major increase in the remand population appears to be the most significant contributing factor to the increase in the total number of people in custody. Other factors include longer sentences and increased police activity. The underlying causes of these factors are, however, less clear. (NSW Legislative Council, 2001, p. xv)

Since the above report was published, the NSW imprisonment rate has risen in consecutive years from 153.2 per 100 000 in 2000–01 to 173.4 per 100 000 in 2005-06 (SCRGSP, 2006, Table 7A.24). Contributing to this has been an increase in the proportion of convicted offenders in the District and Supreme Courts sentenced to full-time imprisonment (from 48% in 1990-1993 to 69.2% in 2002) (Indyk & Donnelly, 2007, p. 10) and amendments to the Bail Act 1978 (NSW) in 2002 (Fitzgerald & Weatherburn, 2004). Further, in October 2005, legislation came into effect that changed the waiting time for reapplication to 12 months (Legal Aid NSW, 2006a, p. 16). Prior to this inmates could have their parole reconsidered soon after an unsuccessful application (NSW Legislative Assembly, 2004, p.12 098).

Inmate population by stage of incarceration

Imprisonment can be viewed as a process rather than a static state. While the course of this process may vary from inmate to inmate, it invariably commences with the arrest of the offender by police and often detention in police cells for at least some period. If bail is refused, this is generally followed by placement in a remand jail, movement to a sentenced jail following conviction, possible movement to a lower security facility towards the end of the sentence, release, and for some, a period of supervised parole.

Table 2.2 provides data about the numbers of inmates at each of these stages: in court cells, on remand, serving a sentence and, where available, released (on parole or unconditionally). Two distinct types of information are presented. The first, drawn from the Inmate Census (Corben, 2006a), provides a count of inmates as at June 30 2006. This type of 'snapshot' data:

    … provides a picture of persons in prison at a point in time (30 June 2006), and does not represent the flow of prisoners during the year. The majority of prisoners in the annual prisoner census were serving long term sentences for serious offences, whereas the flow of offenders in and out of prisons consists primarily of persons serving short sentences for lesser offences. (Australian Bureau of Statistics, 2006a, p. 3)

The second type of information describes the flow of inmates through the prison system during the 2005–06 financial year (NSW DCS, 2006d).

Table 2.2: Inmates in NSW Correctional Centres on 30 June 2006 and in the 2004–05 year

Stage'Snap shot'
Number of inmates on June 30 2006
'Flow'
Number in the 12 months
(July 05–Jun 06)
Court/police cell complexes – DCS managed
52
(daily average 105)
12 590
Received into cells but
released without transfer
to a correctional centre
Remand (unsentenced)
2 100
10 488
Received into full-time
custody on remand
Sentenced
6 951
7 453
Commenced a full-time sentence
Full-time custody in a correctional centre (remand and sentenced)
9 051
14 760
Received into full-time custody
at correctional centres, including
those who were transferred
from court cell complexes1
Transitional Centres2
27
-
Released – on parole
-
4 759
Released – unconditional (full sentenced served)
-
2 183
Total released
-
6 942
Sources: Snapshot: Corben, 2006a (pp.19, 49,53); Flow: NSW DCS 2006d (pp.16–18)
1 The total number received into full-time custody does not equal the sum of unsentenced and sentenced inmates because some inmates are counted twice: as remandees and as sentenced prisoners — if they were remanded and then sentenced in this period.
2 Transitional Centres house inmates temporarily released under section 26 (2) (j) of the Crimes (Administration of Sentences) Act.

Offenders in police/court cells

Offenders who have been refused bail may be placed in a police or court cell complex. While there were only 52 people held in police/court cell complexes managed by DCS on 30 June 2006, 12 590 offenders were held in police cells during 2005–06 but discharged without being transferred to a correctional centre (Table 2.2). This figure is in addition to those who commenced custody in the court cells before being transferred to prison.

Remand inmates

A 'remand' prisoner is a person charged with a criminal offence who has been ordered by the Court to be detained in custody while awaiting trial or sentencing (WA Department of Justice et al., 2004, p. 4). In the inmate census, only 23 per cent of all full-time inmates were on remand. However, as Table 2.2 indicates, nearly 10 500 people spent some time on remand during 2005–06. Fifty-three per cent (5 602) of these inmates were remanded for less than 30 days. Of interest is a 2001 review of remand statistics undertaken by DCS, which found that 56 per cent of remand inmates received into custody in March 1999 were discharged without a custodial sentence, most leaving within a month (Thompson, 2001, p. 7).

As at 30 June 2006, 41 per cent of unconvicted (remand) inmates were housed in maximum security facilities and a further 36 per cent in medium security (Table 2.3). As a point of comparison, two thirds of the convicted (sentenced) inmates are held in minimum security facilities. As described earlier, inmates in maximum security face greater security restrictions including less time out of their cells — potentially affecting their capacity to access legal help.

Table 2.3: Inmate security classification, 30 June 2006

Security levelConvictedUnconvictedTotal
No.
%
No.%No.%
Maximum
783
11.4%
88940.9%1 67218.5%
Medium
1 247
18.1%
78035.9%2 02722.4%
Minimum
4 698
68.3%
29313.5%4 99155.1%
Unclassified
150
2.2%
2119.7%3614.0%
6 878
100%
2 161100%8 948100%
Source: Corben, 2006a, p. 19.
Note: The totals differ slightly from those presented in Table 2.2 as some convicted inmates may have an 'unconvicted' inmate classification if they were facing further and more serious charges or had not been re-classified at the time of the census (Corben, 2006a, p. 24).

Notably, the international literature has suggested that remandees — as unconvicted inmates — have particular circumstances and legal needs (Brookman & Pierpoint, 2003; HM Inspectorate of Prisons for England and Wales, 2000) compared with convicted inmates. These are discussed later in this chapter.

Sentenced inmates

As the 'flow' data in Table 2.2 indicates, the numbers of people commencing a sentence in a given period is less than the number of people coming into prison on remand during that same time. However, when taken as a 'snap shot', three-quarters (77 %) of all full-time inmates in NSW prisons on June 30 2006 were serving a sentence. Of the sentenced inmates counted in the 2006 Inmate Census, 38 per cent were serving maximum terms of less than two years. Sixty-one per cent were serving maximum terms of less than five years. Only 5.5 per cent were serving maximum terms of 20 years or more (including life). Less than two per cent (1.6%) were forensic patients (Corben, 2006a, p. 23).

It should be noted that many prisoners are released (on parole) before serving their maximum term of imprisonment (see 'Release and recidivism', below). DCS reported that, in 2004–05, two thirds of inmates in NSW served custodial sentence of less than six months (NSW DCS, 2005a, p. 8).



Security classification
Prisoners are generally placed in prisons which match their security classification (a rating of the level of security in which they must be held). Higher security jails have more surveillance, more physical security and inmates spend more time in their cells.

Overall, the prison census indicated that 19 per cent of the prison population (remand and convicted combined) were housed in eight maximum security facilitates, 22 per cent in medium security and 55 per cent in minimum security (see Table 2.3). Within the maximum security rating are higher levels of security for those inmates assessed to be of the highest risk to the community should they escape. In December 2005, there were 36 inmates in the most secure unit in the system, the High Risk Management Unit at Goulburn Jail (NSW DCS, 2005a, p. 18).

Protection and segregation
Over and above their security classification, some inmates are held separately from the main population, either to protect them from other inmates ('protection' or 'protective custody') or to protect others from them ('segregation'). The number of hours spent outside of a cell can also be significantly less for those on protection or segregation. Inmates on protection may also be excluded from opportunities to work (NSW DCS, 2005a, p. 138) and pre-release programs (Legal Aid NSW, 2006a, p. 17).

Barnes (2001) reported that the proportion of inmates in protective custody had risen from 11.3 per cent in 1996 to 17.4 per cent in 2000 (p. 2), and that the rate of increase in the numbers of inmates in protection was 4.4 times that of inmates in full-time custody. As at 31 December 2004, 21 per cent of inmates in full-time custody were held in isolation from all other inmates (non-association), or some other inmates (limited association) or were on protection or in segregation (Serious Offenders Review Council, 2006, p. 10).

Inmates in specialist units, such as the Mum Shirl Unit,9 the psychiatric facilitates at Long Bay, and those in reception screening, are also housed separately to the main population.

Out of cell hours
In NSW, the average total 'daily time out of cells' for open (minimum security) facilities was 11.9 hours. For 'secure' (medium and maximum security) facilities the average is 7.6 hours per day. The overall average is 9.2 hours per day out of cells. While out of cell time has marginally improved in NSW for those in open custody since 2000/01, it has declined for those in secure custody and overall. Further, NSW inmates in secure and open custody average fewer out of cell hours than inmates in all other Australian jurisdictions (SCRGSP, 2007 Tables 7A.18 and 7A.25). Of note, in 1978, the Nagle Report had recommended that prisoners not be locked in their cells overnight for more than ten hours (Nagle, 1978, pp. 499, 717).

Release and recidivism

With only five per cent of sentenced prisoners in Australia serving life or another indeterminate sentence (ABS, 2006, p. 8), most prisoners do return to the community at some point. In 2005-06, 6 942 inmates were discharged from full-time custody in NSW, more than two-thirds on parole (68.6%), and just under one third (31.4%) having served their full sentence (NSW DCS, 2006d, p. 18). There was a 12 per cent increase in the number of inmates released on parole with supervision between 2004-05 and 2005-06 (NSW DCS, 2006b, p. 39).

NSW has the highest recidivism (re-offending) rate of all Australian jurisdictions. Of all inmates who were discharged from full-time custody during 2004–05, 43.5 per cent returned to a NSW prison within two years (Audit Office of NSW, 2006b, p. 83). The NSW DCS (2006d) indicated that recidivism was higher for those who had an earlier period of imprisonment in an adult correctional centre in NSW than those who had no prior period of imprisonment (53% compared to 26%) (p. 31). In a study of ex-prisoners and homelessness, Baldry et al. (2006) argued that recidivism cannot be seen only in terms of an individual prisoner's criminogenic lifestyle. It must also be understood in terms of the level of support, including legal support, available to prisoners post-release:

    Reduction in poor communities of publicly provided transport, affordable decent housing, employment, health services — especially drug and alcohol services, relevant education services, and legal aid leaves those, like ex-prisoners who cannot afford to participate in private market solutions, without capacity to address these exclusions. (NSW DCS, 2006d, p. 31)

An overall profile and 'capacity' of prisoners and ex-prisoners is given below.

Characteristics of NSW prisoners

The profile of the prisoner population differs appreciably from that of the broader NSW population, with certain groups over-represented in prison (e.g. young men, Aboriginal people). In this section, we outline the profile of the prisoner population in terms of age, gender, cultural background and family context. We then focus on statistics indicating the level of disadvantage among prisoners in NSW.

Age and gender

In mid 2006, the vast majority (92.8%) of inmates in NSW prisons were male (Corben, 2006a, p. 19). However, while only 7.2 per cent of inmates in NSW were women, this represents the highest proportion of women prisoners in the country (ABS, 2006, p. 7).

According to 'snapshot' data taken on 30 June 2006 and displayed in Table 2.4, nearly 38 per cent of inmates were aged 25 to 34 years, while a further 25 per cent were aged 35–44. Younger people are clearly over-represented among the inmate population with approximately 21 per cent of inmates aged 18-24 years, compared with just over nine per cent in the NSW general population (ABS, 2007a). As explained earlier, these snapshot figures may mask high numbers of younger offenders in for short periods on remand or on short sentences.

Table 2.4: Inmates in NSW Correctional Centres by age and gender, 30 June 2006

Age Group
Male
Female
Total
No.
%
No.%No.%
Under 18
21
0.3
--210.2
18–24
1 767
21.0
12519.21 89220.9
25–34
3 124
37.2
27642.43 40037.6
35–44
2 106
25.1
16224.92 26825.1
45 and over
1 382
16.3
8813.51 47016.2
8 400
100
6511009 051100
Source: Corben, 2006a, p. 19.

Indigenous status

While in 2006 Indigenous Australians comprised 2.1 per cent of the NSW general population (ABS, 2007a), Aboriginal or Torres Strait Islander (ATSI) people made up 21 per cent of the NSW inmate population (Corben, 2006a, p. 20), increasing from 18 per cent in 2005 (Corben 2006b, p. 77). In a study of the factors which may contribute to Indigenous over-representation in prison in NSW, Snowball and Weatherburn (2006) concluded that the higher rate at which Indigenous people are sent to prison stems from their higher rate of conviction for violent crime and their higher rate of re-offending, rather than any systemic bias in sentencing practice based on the Indigenous status of the offender (pp. 14-15). Earlier work by Aboriginal Justice Advisory Council (AJAC) (2002) has suggested that bail practices may also contribute to the overrepresentation of Aboriginal people in jail.

In NSW, the inmate census indicated that one in five male prisoners (21%) and nearly one-third of female prisoners (32%) were ATSI people (Corben, 2006a, p. 20).

Cultural and linguistic background

The 2006 inmate census indicated that nearly three-quarters of the NSW prisoner population were Australian born (74.1%) (Corben, 2006a, p. 19). This compares to 69 per cent of the NSW general population who were born in Australia (ABS, 2007a).

The 2006 inmate census indicated that 16.8 per cent of inmates were born in a non-English speaking country10 (Corben, 2006a, p. 19). While it may be expected that a proportion of inmates born in a non-English speaking country may speak English proficiently, there may be a significant minority who do not speak, understand or write in English. Of particular note, 3.2 per cent of the prison population in 2006 were born in Vietnam (compared to 1% of the NSW population), 1.6 per cent in Lebanon (compared to less than one per cent of the NSW population) and 1.1 per cent in China (compared to 1.7% of the NSW population) (Corben, 2006a, p. 19; ABS, 2007a).

Marital status and children

According to the 2006 inmate census, 31.1 per cent of men and 35.9 per cent of women were currently married or in a de facto relationship at the time of their reception into prison. Relatively few, 6.9 per cent of men and 9.2 per cent of women, were separated or divorced at the time they came into prison (Corben, 2006a, p. 20), while 59.7 per cent of male and 52.1 per cent of female inmates received into prison had 'never married'. The proportion of all inmates 'never married' (59.2%) is considerably higher than in the general NSW population (32.7%) (ABS, 2007a).

In 2001, nearly half (49%) of male inmates and 57 per cent of female inmates reported that they had children under the age of 16 years (Butler & Milner, 2003 p. 28). In an analysis based on these data, Quilty et al. (2004) reported that the average number of children per male inmate was 2.2, and 2.4 for female inmates. More Indigenous inmates were parents than non-Indigenous inmates (62% compared with 43% for male inmates and 79% compared with 52% of female inmates) (p. 341).

Table 2.5: Inmate's number of children under sixteen

No. of Children
Men
Women
Freq.
%Freq.%
0
347
50.76342.9
1
139
20.33221.8
2
97
14.22416.3
3
49
7.2138.8
4
27
3.974.8
5
11
1.642.7
6
6
0.921.4
> 6
8
1.221.4
Total
684
100.0147100.0
Source: Butler & Milner, 2003, p. 29.

While the proportion of inmates entering prison who are married/de facto is considerably less than in the NSW population (31.4% compared with 50.1%), scope remains for family law issues to arise for inmates who may formally separate or divorce during their incarceration, or those who have children, irrespective of their marital status.

Prisoners, particularly women prisoners, have commonly been involved in violent relationships, with 55 per cent of women respondents to the 2001 Justice Health Inmate Health Survey (IHS) indicating that they had been subject to at least one form of abuse in a relationship in the previous 12 months. Overall, 69 per cent of women said they had been involved in a violent relationship, while 35 per cent indicated they had been involved in two or more such relationships (Butler & Milner, 2003, p. 137).

NSW prison inmates and disadvantage

As will be described below, there is considerable evidence to suggest that prisoners tend to come from, and return to, disadvantaged backgrounds (Corben, 2006a; Butler & Milner, 2003; Borzycki, 2005, p. 33–35; Baldry et al., 2003). In particular, Borzycki (2005) notes prisoners as having histories of social isolation, welfare reliance, unemployment or poor employment, criminal involvement by the family, physical, sexual and emotional abuse, health issues (substance misuse, mental illness, high mortality rates including violent death and suicide, poor physical health, co-morbidity of conditions) and poor life skills (education, literacy, numeracy, time management, financial management) and poor cognitive function (pp. 33–35). The literature suggests that the over-representation of multiple forms of disadvantage among prisoners and ex-prisoners, together with the fact of being or having been a prisoner, may directly affect the legal issues experienced by prisoners and their capacity to address these legal issues (Borzycki, 2005; Webster et al., 2001; Stringer, 1999). The following section describes the prevalence of certain characteristics that are indicative of disadvantage within the NSW prison population.

Prisoner health

Unless indicated otherwise, the following data were drawn from the IHS (Butler & Milner, 2003), a survey of 914 inmates conducted by Justice Health. The sample was stratified by Aboriginality and age (groups being under 25 years, 25–40 years, and over 40 years) (p. 11, Butler & Milner, 2003). Overall, 95 per cent of women inmates and 78 per cent of male inmates surveyed in the IHS had at least one chronic health condition (p. 8).

Addiction and addictive behaviour

Available data indicates that prisoners commonly have histories involving harmful alcohol and other drug use. Substance misuse is of particular relevance to prisoners and legal need as it has been previously identified in meta-analyses as 'a robust predictor of recidivism' (See Kinner, 2006 p. 1). Butler and Milner (2003) identified that:

  • over one third of women and approximately half the men in their sample drank alcohol in the 'hazardous' or 'harmful' range according to the Alcohol Use Disorders Identification Tool11 (pp. 120–121). As a point of comparison, 9.3 per cent of the NSW population (aged 14 years and older) report drinking alcohol at 'risky or high risk levels' (AIHW, 2005a, p. 4)12
  • seventy-four per cent of women and 67 per cent of men had used illicit drugs regularly in the twelve months before prison (pp. 119–120). In comparison, 14.6 per cent of the NSW population report having used an illicit drug at all in the previous 12 months (AIHW, 2005a, p. 7)
  • eleven per cent of women and 20 per cent of men were identified as 'probable pathological gamblers' (p. 8). While not directly comparable, a recent survey of over 2 000 people found that 0.8 per cent of the NSW adult population fell in the 'problem gambling group'. A further 1.6 per cent [AQ of men or people?] are considered moderate risk gamblers and 2.1 per cent low risk gamblers (Brockelsby & Kenrick, 2007, pp. 7–9).13

The Drug Use Monitoring in Australia (DUMA) project is a national study which seeks to measure drug use among people who have been recently apprehended by the police.14 While DUMA data is only drawn from people in police custody, the data is useful here as this is where the vast majority of prisoners commence their incarceratation. The DUMA data indicated that overall, 83 per cent of the sample of offenders charged with property offences and 65 per cent of those charged with violent offences tested positive to a drug at the time they were detained by police (Schulte, Mouzos & Makkai, 2005). Most commonly detected drugs included cannabis (60% of males, 52% of females); methylamphetamine (29% of males, 41% of females); benzodiazepines (20% of males, 36% of females) and heroin (13% of males, 19% of females). The study also found considerable overlap between heavy use of alcohol (defined as more than five drinks in one day for men and three drinks for women) and illicit drug use (Schulte et al., 2005, pp. 1–2).

The resumption of alcohol and other drug use may also be an issue for inmates after release from prison. In a small scale study in Queensland of drug use following release from jail, Kinner (2006) identified that within an average of 34 days post-release, 64 per cent of men and 37 per cent of women reported illicit drug use, particularly cannabis and amphetamines (p. 1).



Mental health
Ogloff et al. (2007) report that the rates of major mental illnesses such as schizophrenia and depression are three to five times higher among Australian prisoners than those in the general population (p. 1). Overall, 54 per cent of female and 39 per cent of male inmates interviewed for the IHS had been diagnosed at some time in the past with a psychiatric problem. Depression was the most common diagnosis in both sexes. Three per cent of women and five per cent of men had been diagnosed with schizophrenia (Butler & Milner, 2003, p. 96).

A report focusing on the mental health of prison inmates in NSW identified that 74 per cent of their prisoner sample were identified as having had 'any mental disorder' (psychosis, anxiety disorder, affective disorder, substance use disorder, personality disorder or neurasthenia) in the previous 12 months. This is substantially higher than the proportion of general community members with such disorders (22%) (Butler & Allnut, 2003, p. 2). The authors report that, at the point of their reception into prison, nearly half of all reception inmates were experiencing at least one mental disorder (psychosis, anxiety or affective disorder) and 12% had psychosis (p. 17). Further, Butler and Allnut estimated that on an average day, around four people suffering schizophrenia will enter 'the system' (Butler & Allnut, 2003, p. 21).



Anxiety and stress
Literature on the response of inmates to incarceration has suggested that prisoners experience high levels of anxiety and stress when they first come into prison, but that anxiety levels lessen over the time spent in custody (Dollard et al., 2003, p. 93; Paulus & Dzindolet, 1993; MacKenzie & Goodstein, 1985). Dollard et al. (2003) cited a number of studies, which indicated that prisoners' trait anxiety (their general vulnerability to anxiety) is higher than in other populations, and that their anxiety levels are raised further by the experience of going into custody. It would also appear from this research that as inmates' anxiety levels increase, their capacity to cope with the imprisonment decreases (p. 93).

Intellectual disability
According to the IHS, 18 per cent of women and 27 per cent of men scored below the pass rate on the intellectual disability screener used (see Butler & Milner, 2003, for details). Of those screened, who were further assessed using the Weschler Adult Intelligence Scale Revised (WAIS-R) test, 59 per cent of women and 39 per cent of men had either an intellectually disability or were functioning in the borderline range (Butler & Milner, 2003, pp. 8–9). While population estimates vary depending upon the definition, the prevalence of intellectual disability in the Australian population aged under 65 years was estimated by the AIHW in 2003 to be 2.5 per cent (or 3.0% for the whole population) (AIHW, 2005b, p. 213).

Traumatic Brain Injury (TBI)
In the IHS nearly one in four (39%) women inmates and 45 per cent of male inmates reported having had sustained a head injury at some time in the past which resulted in an episode of unconsciousness or 'blacking out' (Butler & Milner, 2003). Forty-one per cent of women and 23 per cent of men who had sustained a head injury reported unresolved side effects. Being struck by an object or person was the most common cause of head injuries in both male and female inmates (60% and 69%) (Butler & Milner, 2003, pp. 66–67).

In a recent study of 200 men received into police or corrective services custody in NSW, 82 per cent had experienced at least one traumatic brain injury (TBI) (Scholfield et al., 2006, p.501). Sixty-five per cent reported at least one TBI with loss of consciousness. Of those who had lost consciousness, 59 per cent reported they had been unconscious for less than 30 minutes. Of note were the very high rates of multiple TBI (43% of the sample had sustained four or more TBIs), and high rates of recent TBI and ongoing symptoms. Symptoms reported included headaches, personality change, anxiety/depression, memory loss, uncontrollable anger and relationship breakdown. As a point of comparison, Scholfield et al. (2006) reported that an Australian community survey found that the lifetime prevalence of TBI with at least 15 minutes of loss of consciousness ranged between 5.6 and 6.0 per cent (p. 502).

Histories of violence and abuse

Consistent with the figures on inmate head injuries reported above, prisoners often reported personal histories involving violence and abuse. In terms of sexual abuse, figures in the IHS showed that 60 per cent of women prisoners and 37 per cent of men reported having been sexually abused before the age of 16 years, while 30 per cent of women and ten per cent of men reported having been sexually abused before the age of ten (Butler & Milner, 2003, pp. 8-9). In the IHS, nearly eight out of every ten women reported being the victim of violence as adults and 44 per cent reported being the subject of sexual assault as adults (Butler & Milner, 2003, p. 5). Further, in a survey of 50 Aboriginal women in custody in NSW, Lawrie (2002) also found that 70 per cent of the women surveyed reported sexual assault as children, and approximately 80 per cent reported having been victims of domestic violence. Figures on violence in relationships are described above under 'Marital status and children'.

Histories of state care

Approximately one-third of women and one-fifth of men in NSW prisons have been identified as having spent time in the state care system during childhood (Butler & Milner, 2003, p. 8). Further, sixteen per cent of both women and men had at least one parent who had been imprisoned during their childhood (p. 29).

Literacy levels and education

Rawnsley (2003) analysed Australian prison census data from 1993-2001, to discern factors leading to repeat imprisonment. Rawnsley observed 'that prisoners with more prison spells are likely to have lower levels of education' than other prisoners (p. 20). In 2001, DCS reported that 60 per cent of inmates at that time were not functionally literate or numerate (NSW Legislative Council, 2001, p. 20).

However, these figures should be considered in context of literacy levels in the broader population. A recent ABS survey of adult literacy and life skills describes a minimum standard of literacy 'required for individuals to meet the complex demands of everyday life and work in the emerging knowledge-based economy' (ABS, 2007b, p. 5). The study found that 46 per cent of Australians aged 15–74 scored below this minimum standard for prose literacy, 47 per cent for document literacy and 53 per cent per cent for numeracy. Seventy per cent of Australians aged 15–74 scored below the minimum standard for problem solving (ABS, 2007b, p. 5). Consequently, while prisoner literacy rates appear to be low, population figures suggest that limited literacy may be a broader issue within the Australian population.

The ABS study also found a strong association between educational attainment and achieved literacy levels (p. 9). In the IHS, 46 per cent of female inmates and 53 per cent of male inmates reported having left school with no qualifications (e.g. not achieved the year 10 certificate or High School Certificate). Approximately one in four inmates sampled had attended more than 5 schools, and 29 per cent of women and 39 per cent of men had been expelled from at least one school. Eight per cent of the women and 11 per cent of the men had attended a special school (Butler & Milner, 2003, p. 22). As a point of comparison, the 'apparent retention rate'15 from year 7 to year 12 for all full-time school students in NSW in 2006 is 70.5 per cent (ABS, 2007c, p. 28). The apparent retention rate to year 12 Australia-wide is 75.9 per cent for non-Indigenous students and 40.1 per cent for Indigenous students (ABS, 2007c, p. 31).

Employment histories and welfare dependence

The IHS reported that 36 per cent of the women interviewed and 55 per cent of men had worked in the six months prior to imprisonment. Women were most commonly employed in sales and personal service work (27%) whereas most men were employed as labourers and related workers (40%) (Butler & Milner, 2003, p. 22). The remaining 64 per cent of women and 45 per cent of men were unemployed in the six months prior to imprisonment. The period of unemployment for these inmates ranged from less than one year (women 8%; men 13%) to over ten years (women 23%; men 7%). Nine per cent of women and 12 per cent of men had never worked. Most of the inmates interviewed had received a benefit or pension in the six months before coming into prison (women 85%; men 64%) and the median length of time on a benefit or a pension was four years for women and 18 months for men (Butler & Milner, 2003, pp. 22–23). By comparison, the unemployment rate in the NSW general population at the time of the IHS was 5.9 per cent for men, with a 71.1 per cent participation rate in the labour force. For women it was 5.6 per cent, with a 54.1 per cent participation rate in the labour force (ABS, 2001, p. 1).

Borzycki (2005) reports that recent unemployment among prisoners (as well as injecting drug users and police detainees) 'appeared markedly higher than seen in the Australian population over 15 years of age, with the proportion even higher among those who had previously been imprisoned' (p. 47). Reflecting on the issue of prisoners' employment histories, she noted:

    Prisoners tend to have patchy and erratic histories of employment within the legal economy, which can in part be linked to average poor education levels, poor life skills, low self-esteem, unstable lifestyles, and drug abuse. Upon release, these factors may be exacerbated by a lack of stable accommodation, a criminal history that now contains a custodial term, a prolonged absence from the job market and associated job skill loss. (Borzycki, 2005, p. 38; also Webster et al., 2001, pp. 8–9)

Homelessness

In research conducted between 2001 and 2003 with 194 participants in NSW and 145 participants in Victoria, Baldry et al. (2003) explored the relationship between homelessness and incarceration. The study found that the incidence of homelessness increased from 20 per cent prior to incarceration to 38 per cent six months after release. The authors identified significant associations between returning to prison and being homeless; not having any, or adequate accommodation support; and worsening alcohol and other drug problems (p. i). Access to socially supported housing was associated with staying out of prison and increased social integration. Not having such housing was commonly associated with slipping back into a transitory lifestyle, problematic drug use and being re-arrested and re-incarcerated (p. ii). The Foundation's own study into the legal needs of homeless people also identified that people recently released from jail seemed to be disproportionately represented among the homeless (Forell et al., 2005, p. 269). In 2001, the rate of homelessness within the general NSW population was estimated to be 42.2 per 100 000 people (Chamberlain & MacKenzie, 2003, p. 5).

Summary

While the NSW prison population is largely young and male, an increasing number of women are also spending time in jail. Aboriginal people, people with intellectual disability, alcohol and other drug dependence, mental health issues, histories of violence and abuse, histories of state care and/or parental imprisonment, interrupted or limited education and high unemployment are over-represented among prison inmates, when compared to the NSW general population. It could be expected that having any one of these characteristics may add to the complexity of accessing legal services and/or addressing legal need. However, the data reported above suggest that many prisoners may in fact face multiple and interrelated forms of disadvantage, adding to the complexity of addressing their needs. Further, these statistics have indicated that both the overall size of the prison population and the numbers of prisoners with complex or special needs is increasing and therefore issues regarding access to justice are only likely to increase in the future.

Access to justice for prisoners and ex-prisoners: the existing literature

The profile of the prisoner population as described in the previous section has considerable implications for the delivery of legal services to prisoners. It suggests that inmates may not only face barriers arising from their environment (i.e. being in prison), but as individuals, they may have difficulties in accessing and using legal help and engaging with legal processes.

We now turn to the existing literature on prisoners' legal needs and their capacity to access justice. To date little research has been undertaken specifically on these issues. However, certain formal inquiries, evaluations, reports and academic literature have explored aspects of this topic, such as the particular needs of subgroups within this population. The following discussion is divided into four sections: legal issues, access to legal information, access to legal advice and representation, and the ability of inmates to participate in legal processes.

Legal issues

To date, two Australian studies have examined the legal needs of prison inmates, both focussing on the needs of female inmates. The larger of the two studies was a survey of 121 women and girls in custody in Queensland (representing 36% of the female prison population). The study examined participants' 'unmet legal needs' and the capacity of Legal Aid Queensland (LAQ) to address them. The authors reported that: 'jail treatment, discrimination and children were the biggest area of problem for participants' (de Simone & d'Aquino, 2004, p. 5).

The second, smaller study focussed in particular on the welfare needs of 50 Aboriginal women in custody in NSW (nearly half of all Aboriginal women in prison at the time). Issues raised that had legal implications for these women included lack of access to Centrelink benefits, housing issues, family problems, care and protection issues and victims of crime experiences (Lawrie, 2002).

In terms of overseas research, the Department of Justice in Canada commissioned a study into the legal service needs of prisoners in Federal penitentiaries. It covered legal aid services, information and other support accessed by prisoners, and the difficulties they experienced accessing these services (Lajeunesse, 2002, p. 1). The study involved interviews with 100 inmates in 12 jails, nearly 50 correctional staff and five 'prison law' lawyers (p. 1). Issues identified by the prisoner interviewees as critical areas requiring legal assistance included: serious disciplinary offences (75% of respondents); family law matters (70%); appeals (69%); involuntary transfers or requests for administrative segregation (65%); and, conditional release (60%) (Lajeunesse, 2002, p. 2).

Finally, there is an increasing body of literature both in Australia and overseas focusing on the problems facing inmates upon their release from prison and the provision of support services to help ex-prisoners reintegrate into the community, reducing their chances of re-offending. The literature identifies inmates as often having multiple legal and other needs when they leave prison, including housing issues, problems with debt, discrimination, police harassment and finding and maintaining employment. (Audit Office of NSW, 2006a; Scottish Executive, 2006a & 2006b; Borzycki, 2005; Re-entry Policy Council, 2005; Winkworth, 2005; Baldry et al., 2003). The literature concerning particular legal problems faced by prisoners is discussed and integrated into Chapter 4 in the context of the findings from the current study regarding legal need.

Access to legal information

In the currently available Australian literature and commentary, a number of barriers have been identified to inmates accessing the resources necessary to prepare for court appearances, or to respond to other legal matters that may be pending. These include:

  • lack of access to computers (Lester, 2006)
  • lack of access to telephones, limitations to the length of calls and the cost of telephone calls (de Simone & D'Aquino, 2004)
  • difficulties in reaching and getting information from Legal Aid (Queensland) (de Simone & D'Aquino, 2004).

The advocacy group Justice Action (2003) has also raised concerns about these barriers, as well as difficulties accessing the library and photocopiers.

In a survey of 711 prisoners (65% of whom were on remand) about the treatment and conditions for un-sentenced prisoners in England and Wales, the Inspectorate of Prisons examined remandees' access to legal information and assistance to help them get bail. They identified that while there were formal systems in place to provide legal information to prisoners (e.g. induction and pamphlets), inmates did not necessarily receive the information they needed. Specifically, they concluded that while most prisoners received some form of induction, material on bail and how to access legal aid was the type of information they were least likely to be given (HM Inspectorate of Prisons, 2000, pp.16 and 34; see also Brookman & Pierpoint, 2003; Brookman, Noaks & Wincup, 2001). Further, 57 per cent of men and 71 per cent of women interviewed indicated that, aside from the induction, they had not been given any other information about bail, legal aid or how to access legal reference books in the first week or two of custody. A third of the men and over half of the women were not told when telephone calls to solicitors or families could be made, or how to make a request or complaint (HM Inspectorate of Prisons, 2000, p. 34).

Prison libraries

In 1990, a set of minimum standard guidelines were prepared for prison libraries by the Australian Library and Information Association (ALIA). The Australian prison libraries: minimum standard guidelines (1990) identify legal reference materials as 'materials to cater for special needs' that should be held by prison libraries, in addition to the materials usually found in public libraries (ALIA, 1990, para. 7.8). The guidelines also suggest that:

    Assistance in legal reference work shall be available, by contract if necessary, from a law library. It is not to be expected that any library can provide this kind of service beyond a level which would apply for the general public; however it is recommended, in the interests of justice, that special consideration be given for the needs of prisoners in this regard. (ALIA, 1990, para. 8.7)

These guidelines are acknowledged in the DCS Operations Procedures Manual section on Correctional Centre Libraries (NSW DCS, 2006c, s 5.6).

In 2005 DCS Library Services undertook a small-scale survey of inmates about their use of the library and their view of the services offered. Responses were received from 165 inmates in 12 Correctional Centres. Respondents indicated that they used the library for various purposes, including recreational reading, education and legal information. Some inmates also used the computer and photocopier in the library. Two-thirds of respondents (67%) agreed with the statement that '[The library] helps me with my legal information needs' (NSW DCS, 2005b).

Recent changes to the quantity and quality of legal information available through prison libraries are described in the body of this report.

Access to legal advice and representation

Review of the NSW Prisoners' Legal Service (PLS)

A key provider of legal services to prisoners in NSW is Legal Aid's Prisoners Legal Service. The bulk of the PLS's practice involves representation work, largely before the Parole Authority, as well as for Visiting Justice Proceedings and Review of Segregation Directions. The PLS also provide a visiting advice service to most jails, conducting over 300 interviews a month (Legal Aid NSW, 2006a, p. 19). In regional areas, the legal advice service is provided by the Legal Aid regional office or a private solicitor on an hourly rate (p. 19).

In 2005 Legal Aid NSW undertook a review of the PLS. The review involved consultations with commission staff and other stakeholders.16 The review noted that the PLS is currently working 'at full capacity' to provide representation and advice services to prisoners in NSW (p. 15). However, the report anticipated that, in the face of an increasing prison population, and in particular, increases in the number of prisoners with complex or special needs (e.g. mental illness, intellectual disability, Aboriginality), additional resources would be needed to maintain these services. The review also highlighted the need for closer links with other specialist services (pp. 4, 11, 13).

While nearly all jails are covered by the PLS, concern was also expressed in the review that the timing of the visiting advice service could be unpredictable (e.g. when a solicitor was not available to attend) and that the range of advice that solicitors were able to provide varied greatly. For instance, some solicitors were able to provide family and civil advice while others only had expertise in criminal law (p. 20). Mirroring the types of concerns raised in other jurisdictions and overseas (see studies discussed later in this section), solicitors reported problems such as frequent lockdowns preventing visits, lengthy processing and waiting times, even when the solicitor visits the jail regularly, the time taken to bring the prisoner to the visits area, unsuitable interview rooms (lack of regard to the solicitor's security) and no access to a telephone to ring the Telephone Interpreter Service (Legal Aid NSW, 2006a, p. 20). Among the recommendations of the PLS advice service review were:

  • to expand the advice service to all jails and to assign more resources to this service
  • to better inform prisoners of the location, times and areas of law covered by visiting advice service
  • to use the Legal Aid NSW social workers to support inmates. (pp. 20–23)

Other key recommendations concerned maintaining a specialist PLS, to develop civil and family law outreach to jails, to develop a state-wide legal education program in prisons, and to forge closer links with other legal and non-legal agencies (pp. 20–43).

Legal Aid Queensland study

The LAQ study on the access of women and girls in custody to legal assistance, described earlier in this section, found that only 26 per cent of participants had ever used LAQ. The authors noted that this usage appeared 'very low' given that solicitors held two advice sessions a week using video conferencing at the Women's Correctional Centre. They suggested that this, together with comments by participants, 'reveal that there is a lack of awareness of the legal advice services provided by LAQ' (de Simone & d'Aquino, 2004, p. 20). Other factors raised as barriers to women using the service were:

  • a lack of confidence in [the capacity of] the LAQ
  • a fear about 'accessing the organisation because it is a government body and perhaps linked to the 'the system''
  • difficulties in accessing LAQ
  • a lack of information about LAQ in prisons and the resulting reliance on 'word of mouth' to receive information on what entitlements a person may have. (de Simone & d'Aquino, 2004, p. 20–21)

De Simone and d'Aquino (2004) observed that while the general public can access LAQ during general working hours and can receive telephone calls back from lawyers, prison inmates face systemic barriers to contacting LAQ.

Figure 1: A comparison of the access to Legal Aid Queensland, between the general public and women prisoners in Queensland



Source: d'Simone & d'Aquino (2004) p. 24.

Figure 1 outlines the steps that would need to be taken for an inmate to access Legal Aid, and compares this to the pathway of those who are accessing Legal Aid from outside jail. Of particular note is the higher number of contingencies (such as access to telephone privileges, having money on the phone card) that must be in place before an inmate can reach legal assistance, compared to the more direct access to legal help when outside of prison. Also evident are the barriers to prisoners and their lawyers communicating with each other (e.g. time limited telephone calls and the inability of lawyers to return telephone calls).

The report indicated dissatisfaction among women inmates with LAQ's representation services, and highlighted the problems women faced in accessing their lawyers:

    The bulk of the qualitative comments showed dissatisfaction with the way that the service was delivered such as failure to keep appointments, limited contact with the solicitor and lack of communication between the solicitor and the client. Again they experienced difficulty in getting in touch with their solicitor and that this was an issue. (de Simone & d'Aquino, 2004, p. 5)

In terms of improvements to the process, inmates suggested that solicitors use less jargon, make an effort to listen more carefully to their client and provide follow-up advice sessions. Inmates also expressed the need for LAQ to be more accessible by telephone so that inmate telephone calls could be answered. (de Simone & d'Aquino, 2004, p. 23).

Overseas studies

In their UK study of young suspects and remandees' access to legal assistance, Brookman and Pierpoint (2003) noted a 'strong message from the broader research that suspects and remand prisoners generally do not receive adequate access to legal advice' (p. 453). Their findings were based on both a review of research and their own earlier qualitative interviews with eighteen remand prisoners, as well as a small number of solicitors (Brookman et al., 2001). The difficulties that prisoners identified in accessing their legal advisors included: a lack of face–to-face contact with their legal advisers outside of the courtroom; a failure by some lawyers to make their scheduled visits to the prisons; the expense of telephone contact; and a reluctance by some inmates to 'waste' phone card numbers on their lawyers (Brookman & Pierpoint, 2003, p. 461). Constraints reported by solicitors included: length of time it took to get to their client through the prison system; inflexible visit times (which clashed with court times and domestic visits); the inflexibility of the prison routine or rules, and the resulting lack of access to inmate clients (e.g. lockdowns and meal times); and limited time available for each client when they had multiple appointments at the prison — particularly if one visit went over time (Brookman & Pierpoint, 2003, pp. 461–462).

Time taken to access prisoner clients, limited and suitably private interviewing spaces, incorrect information about the location of prisoners who had been moved, and difficulties in getting to prisons in isolated areas, were also reported as issues in a survey of 10 Scottish law firms (Scottish Executive, 2000, para. 4.4). Capacity to contact lawyers and other key players such as social workers, was described both as one of the most pressing needs of people on remand and one of the areas most likely to be affected by incarceration (Scottish Executive, 2000, para. 4.1).

The Canadian study described earlier of legal need and access to justice in Federal penitentiaries (Lajeunesse 2002) identified a range of barriers to the provision of legal help which appeared to be based in prison culture – specifically the relationship between prisoners and staff, in particular the capacity of staff to act as a pathway to legal help. The author observed:

    Many inmates mentioned that adverse dynamics within their respective institutions can have a major negative impact on obtaining legal advice, such as negative repercussions by staff when a lawyer gets involved, attempts by staff to prevent or delay contact, and/or staff not knowing how to go about facilitating access to lawyers for individual prisoners. (Lajeunesse, 2002, p. 2)

Lajeunesse (2002) also identified concerns about the level of knowledge or experience among lawyers working in prisons and about the length of time taken to process legal aid applications for disciplinary matters (p. 3). Further, inmates outlined what they considered to be the best option to provide quality legal services in prisons:
    The consensus among inmates was for there to be a regular presence by lawyers, with assigned lawyers for each institution, perhaps by using a staff lawyer approach. Others also mentioned that law schools could develop formal arrangements with some of the penitentiaries to provide students with an opportunity to become familiar with prison law while providing paralegal-type services. (Lajeunesse, 2002, p. 2)17

Considered together, the above studies indicate that prisoners may have trouble accessing legal advisers and, conversely, solicitors can have trouble reaching their inmate clients. The very physical barriers placed between inmates and the outside world such as restricted visit times, limited and timed telephone calls, and that the inmate cannot directly receive telephone calls even from his or her lawyer, has inhibited the capacity of inmates to obtain legal advice.

Lajeunesse (2002) also identified barriers arising from some prisoners' reticence to use the channels available to them because of their difficult relationships with prison personnel and authorities. The LAQ study and the work from Scotland also allude to prisoners having similar problems with lawyers, such as an inmate not being able to comprehend the advice being given to him or her by a lawyer, particularly if the circumstances in which the advice is given are strained (e.g. by short timeframes). Finally, Lajeunesse (2002) suggested that the provision of legal assistance not only helps inmates with their particular legal problems but helps to restore their faith in the law as a tool that can work for them.

Participation in legal processes

There is a body of Australian research that focuses on the capacity of vulnerable groups including young people, people with intellectual disabilities and Indigenous people, to participate effectively in the criminal justice system. However, there is limited research about peoples' participation in criminal matters once they are incarcerated, and virtually no information about the participation of prisoners in non-criminal legal processes, such as civil and family matters.

The most comprehensive review of the participation of people with intellectual disability in the criminal justice system — as defendants, victims and witnesses — was NSW LRC (1996) People with an intellectual disability and the criminal justice system. While NSW LRC (1996) discussed different custodial options for inmates with intellectual disabilities (pp. 391-413), little was said about their access to legal help or their ability to participate effectively in their criminal matters once they were in jail. The more recent Framework Report commissioned by the Intellectual Disability Rights Service (IDRS) specifically identified access to advocacy as a difficulty faced by prisoners with intellectual disabilities (Simpson, Martin & Green, 2001). It also raised the problem of there being no systemic way to identify people in legal processes who have an intellectual disability, and consequently being prepared to meet their particular needs (p. vi).

It is important to note that there is a specialist court support program for people with an intellectual disability currently operative in NSW called the NSW Criminal Justice Support Network (CJSN). The CJSN has also run a pilot project extending their support to intellectually disabled inmates on remand, including those appearing by AVL (CJSN, 2006, p. 3). This support is provided in recognition that:

    The capacity of people with intellectual disabilities to understand the justice process is frequently impaired, thus affecting their ability to (a) protect their rights in relation to that system, (b) interact in the system to fulfil personal and community responsibilities and( c) to experience justice being done. (Westwood Spice, 2005, p. 63)

Some of the difficulties reportedly faced by intellectually disabled inmates who have court matters pending include: limited comprehension of legal advice, court process and court outcomes; anxiety and stress related to participation in court processes; and particular difficulties in participating in legal processes conducted through AVL from jail (CJSN, 2006, pp. 12–15).

AVL for court and legal conferences

In recent years there has been a move towards the use of AVL between prisons, legal advisers and courts, in place of face-to-face advice sessions and court appearances. Indeed the numbers of inmates appearing in NSW courts by video link has increased from 8 605 in 2002-03 to 17 214 in 2005-06 (NSW DCS, 2006b, p. 37). The use of AVL replaces the need to transport inmates to court or for parole hearings. This is reflected in a reduction in the number of inmate movements by truck to courts from 105 844 in 2001-02 to a low of 85 227 in 2004-05 and 90 945 in 2005-06 (NSW DCS, 2006b, p. 37). AVL is also increasingly used by the PLS in legal consultations with clients prior to their parole hearings.

AVL is also being used in Queensland. The LAQ study noted that 31 per cent of participants had received advice via video conferencing. Three-quarters of those respondents reported being dissatisfied or extremely dissatisfied with this method of receiving advice. Reasons given for this included a preference for face-to-face contact with lawyers, concerns about confidentiality due to the volume of the conference and the proficiency of lawyers using the system (de Simone & d'Aquino, 2004, p. 25).

In an evaluation of the CJSN, DCS raised a concern that the increasing use of video links from correctional centres to courts 'increased the challenges [for intellectually disabled inmates] in terms of most communication, especially legal advice being conducted by telephone' (Westwood Spice, 2005, p. 49).

Conclusion

While there is not a large body of literature concerning prisoners' legal and access to justice needs, available material provides a valuable foundation for the current study. Firstly, available data has reinforced the point that prisoners as a group suffer multiple and often interrelated forms of disadvantage. This disadvantage may, over and above their status as prisoners, affect their capacity to access legal assistance and participate in legal processes. Specifically, young, under educated males and people suffering from poor health, cognitive impairment including intellectual disability, mental illnesses and substance use disorders are all over-represented in the prisoner population. Also over-represented are Aboriginal Australians and people who have experienced prior episodes of state care, imprisonment and homelessness.

In terms of legal need, the literature has indicated that prisoners may not only face criminal legal issues, but also civil legal issues – particularly as they re-enter the community post-release. These issues include employment, housing and debt, and for women, family violence. On the basis of the literature reviewed, bail and parole issues, family law matters and prison disciplinary offences are also likely to be areas of legal need in NSW.

This leads to the issue of the provision of legal information, advice and assistance to prisoners. As indicated in this chapter, prisons do have processes in place to allow prisoners access to legal help, particularly for criminal law matters. However, the capacity of legal help to be delivered through these mechanisms in practice was less clear from the literature, (de Simone & d'Aquino, 2004; Brookman & Pierpoint, 2003; HM Inspectorate of Prisons, 2000; Scottish Executive, 2000). These studies all identified practical barriers to the effective delivery of legal assistance to inmates for criminal matters. Most of the barriers identified were 'systemic' barriers. However, the work by Lajeunesse (2002) also suggested that we should be aware of barriers that may arise from prison culture – from a reticence by prisoners to ask for help from officers to a reticence of officers to provide this assistance.

The literature generally had less to say about the provision of family and civil law services than criminal law services in jails. Again our study aims to fill this gap in knowledge. Finally, there is very little literature about the barriers faced by prison inmates participating in legal processes. The work of the CJSN has indicated that inmates with intellectual disability have difficulties understanding courtroom processes and outcomes. Our study aims to provide further insight into whether there are others in the prisoner population also facing difficulties in participating in legal processes and if so, which inmates and in what circumstances. This study may also provide insights relevant to the new and increasing use of AVL within the NSW legal system.

Consequently, this study aims to build on the data and literature presented in this chapter to provide a more comprehensive picture of the various criminal, civil and family law needs of prisoners in NSW and their capacity to access the law and legal assistance.



Community corrections is the community based management of court-ordered sanctions, post-prison administrative arrangements and fine conversions for offenders which principally involve the provision of one or more of: supervision, programs or community work (SCRGSP, 2007a, p. 7.39).
Staffing figures can be found in NSW DCS, 2003, p. 132 and NSW DCS, 2006b, p. .93. Inmate figures are drawn from NSW DCS, 2006d, p. 12).
Staff includes all operational staff involved in the care or custody of inmates AND periodic detainees: governors, custodial staff, industries staff, court security and transport, programs staff including welfare and psychologists, and education staff. To ensure an appropriate comparison, .prisoners. include inmates in jails and court cell complexes, as well as those in periodic detention.
The Mum Shirl Unit is a therapeutic unit within Mulawa Women.s Correctional Centre, for women with psychiatric illnesses, personality disorders and/or who are at high risk of self harm and/or suicide.
The country of birth for 3.5 per cent of inmates was recorded as `unknown`.
The Alcohol Use Disorders Identification Test (AUDIT) is a 10-item questionnaire, developed as a screening tool to detect excessive alcohol consumption and dependence. Number of drinks is only one measure in this test.
`Risky or high risk` alcohol consumption is defined as 29 or more standard drinks a week for men and 15 or more standard drinks for women.
Figures were derived using the Canadian Problem Gambling Index (CPGI).
The DUMA program is a quarterly collection of information from police detainees regarding their alcohol and other drug use, in seven police stations or watchhouses across Australia. Two of the sites are in Sydney.
To calculate the apparent retention rate of full-time students, the total number of full-time students in Year 12 in 2006 is divided by the number of full-time students in the base year, which is Year 7 in NSW (ABS, 2007c, p. 37).
The review did not involve interviews with prisoners because they were aware of the LJF study and were concerned not to overlap (Legal Aid NSW, 2006a, p. 4).
This type of program has been conducted in Victoria, with law students providing a `court readiness program` for prisoners (Naylor & Jacobson, 2007, p. 61).

 Community corrections is the community based management of court-ordered sanctions, post-prison administrative arrangements and fine conversions for offenders which principally involve the provision of one or more of: supervision, programs or community work (SCRGSP, 2007a, p. 7.39).
 Staffing figures can be found in NSW DCS, 2003, p. 132 and NSW DCS, 2006b, p. .93. Inmate figures are drawn from NSW DCS, 2006d, p. 12).
 Staff includes all operational staff involved in the care or custody of inmates AND periodic detainees: governors, custodial staff, industries staff, court security and transport, programs staff including welfare and psychologists, and education staff. To ensure an appropriate comparison, .prisoners. include inmates in jails and court cell complexes, as well as those in periodic detention.
 The Mum Shirl Unit is a therapeutic unit within Mulawa Women.s Correctional Centre, for women with psychiatric illnesses, personality disorders and/or who are at high risk of self harm and/or suicide.
10  The country of birth for 3.5 per cent of inmates was recorded as `unknown`.
11  The Alcohol Use Disorders Identification Test (AUDIT) is a 10-item questionnaire, developed as a screening tool to detect excessive alcohol consumption and dependence. Number of drinks is only one measure in this test.
12  `Risky or high risk` alcohol consumption is defined as 29 or more standard drinks a week for men and 15 or more standard drinks for women.
13  Figures were derived using the Canadian Problem Gambling Index (CPGI).
14  The DUMA program is a quarterly collection of information from police detainees regarding their alcohol and other drug use, in seven police stations or watchhouses across Australia. Two of the sites are in Sydney.
15  To calculate the apparent retention rate of full-time students, the total number of full-time students in Year 12 in 2006 is divided by the number of full-time students in the base year, which is Year 7 in NSW (ABS, 2007c, p. 37).
16  The review did not involve interviews with prisoners because they were aware of the LJF study and were concerned not to overlap (Legal Aid NSW, 2006a, p. 4).
17  This type of program has been conducted in Victoria, with law students providing a `court readiness program` for prisoners (Naylor & Jacobson, 2007, p. 61).


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