The legal needs of prisoners project, Taking justice into custody, is part of a broader program of research being undertaken by the Law and Justice Foundation of New South Wales into the access to justice by, and the legal needs of, economically and socially disadvantaged people.1 Prisoners have been included in this program in recognition of:
In this project, we used qualitative interviews to explore the experiences of prisoners and people recently released from prison. Through one-on-one interviews and a small number of focus groups, we also sought the perspectives of DCS staff and other legal and non-legal service providers who support both prisoners and ex-prisoners.
In total we interviewed 67 prisoners and ex-prisoners and 42 other stakeholders using semi-structured, open-ended questions. The prisoner sample for this project included 27 sentenced inmates and 19 inmates on remand, drawn from five NSW prisons. The ex-prisoner sample included 15 parolees and six unconditionally released inmates, who had been released from full-time custody in the last two years. Interviewees were asked a series of semi-structured, open-ended questions seeking information about their experience of different legal problems, what steps they had taken (if any) to remedy them and the current status of that problem.
The stakeholder sample for this project was drawn from DCS staff and other service providers. Nineteen DCS staff were interviewed, including prison welfare staff, a financial counsellor, parole officers, library staff, education officers, policy workers, 'Throughcare' workers, and department managers working both within correctional centres and in head office. Interviews were also conducted with 23 legal and non-legal service providers who provide support to prisoners and people recently released from prison.
Legal issues experienced by prisoners
Prison inmates by definition have experienced or are experiencing criminal law issues. However, our research suggests that prisoners commonly face a range of other civil and family law issues as well. Some arise from their chaotic lives and financial disadvantage prior to custody, including outstanding debt, unpaid fines, unresolved family law issues and apprehended violence orders. Imprisonment itself also may lead to further legal issues as the person is suddenly excised from their everyday life. Prisoners' housing, child custody arrangements, the retention of their personal effects, employment, the operation of any business and/or social security payments are all affected by their sudden separation from the community through incarceration. Legal issues particular to being a prisoner may also arise, such as bail, prison disciplinary action, classification and segregation issues, victims compensation restitution, and the threat of deportation. When they leave prison, ex-prisoners may experience legal issues relating to their parole and discrimination when seeking housing and employment. Our research also demonstrated that, upon release, prisoners may feel the impact of unresolved legal problems dating from a time prior to custody or during their imprisonment.
Opportunities and barriers to access justice
Interviews with inmates, ex-inmates and the people who assist them, indicated that technically, there are opportunities for prisoners to obtain legal information, advice and representation and to participate in legal processes. Visiting legal advice services, prison libraries, prison staff and independent organisations, as well as telephone access, do much to facilitate the access that prisoners have to legal assistance. However, the interplay of the prison environment, inmates' own personal capacity, the pathways through which inmates can access help, and prison culture, all mean that in many instances, those opportunities are missed or somehow compromised.
Obtaining legal information in prison
Our research indicates that prisoners obtained information about legal issues from a range of sources, including the prison library, welfare staff, other inmates, the visiting legal advice service, and from their own lawyers. Specific barriers that were identified in relation to inmates' access to legal information and advice included:
Opportunities to engage and consult with a lawyer are available to inmates whilst in prison. Legal Aid's Prisoners Legal Service (PLS), for example, provides a visiting legal advice service to NSW prisons on a regular basis. Legal numbers are included on prisoners' phone cards and the number for LawAccess is automatically programmed in. Legal advice visits are catered for with designated areas and times for such visits to take place. However, despite these facilities, interviewees in the current study reported problems for inmates in securing and interacting with legal professionals. Problems included:
To participate effectively in a legal process a prisoner needs to be aware the process exists, know what to become part of that process and be able to signal that intention to the relevant authority. Again, procedures are in place to facilitate inmate participation in law processes, especially criminal law processes. However, during our interviews, we unearthed a number of barriers to inmates commencing and participating in criminal and civil legal processes. These included:
Consequently, while there are opportunities for prisoners to access justice, there are situations where these opportunities break down. Our analysis shows that there are a number of factors which contribute to the breakdown of opportunities for inmates to access justice. These are analysed and discussed under four themes:
Interviews conducted for this study indicated that prisoners' capacity to identify and deal with legal issues they are facing, and to actively participate in legal processes to resolve those issues, is affected by their own:
Of particular note was a tendency reported in the interviews for inmates to have made financial, family and other arrangements outside the formal legal processes. These included informal money lending, housing and custody arrangements. There were also examples of this extending to the use of violence to settle scores. A lack of trust in and marginalisation from formal legal processes, appeared to contribute to the reliance on alternative, less formal solutions. Choices concerning appropriate courses of action were further compromised by inmates' often limited financial resources and lack of appropriate documentation. Consequently, inmates commonly came to jail with multiple legal problems but little leverage to resolve those issues easily.
Given the significant systemic barriers they face to addressing multiple legal issues from inside jail, inmates need to be motivated, tenacious, articulate, patient, organised and familiar with the law and legal process to successfully address their legal needs. In contrast, the profile of the prisoners in NSW is characterised by high rates of illiteracy, mental health issues, alcohol and other drug misuse, and cognitive impairment. Many prisoners had limited or interrupted education. Periods in custody had served to decrease 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 interaction styles (e.g. passive or aggressive behaviour). Dangerously, the inability of some prisoners to comprehend legal information, advice or outcomes was sometimes overlooked by people who offer assistance, because previous experience before the courts or time inside was taken as a proxy for actual knowledge. Lack of capacity may also be masked by bravado or disinterest because people are too embarrassed, intimidated or overwhelmed to admit that they did not understand information or advice, or that they cannot read.
Difficulties understanding and engaging with lawyers and the legal process also appeared to alienate inmates from using the law in their own interest, with some prisoners actively avoiding legal help. Inmates whom we interviewed reported avoiding the legal system to redress injustice because, in their experience, it was intimidating, incomprehensible and unlikely to operate in their favour. When compelled to participate in the legal process, some people did so in a state of ignorance and ensuing anxiety.
As a consequence of being in prison and having legal needs, prisoners usually come into contact with a number of systems, such as the legal, custodial and bureaucratic systems. Features of, and tensions between, the systems have presented barriers to prisoners accessing justice.
Firstly, according to our interviewees, the level of resourcing within DCS and public legal services, such as the Legal Aid Commission of New South Wales (Legal Aid) and the Aboriginal Legal Service (ALS), seemed to threaten the capacity of these bodies to facilitate prisoners' access to justice. For example, the number of inmates requiring time with the PLS visiting legal advice service meant that each inmate may only have five or 10 minutes to discuss their case. Many felt that this was insufficient to convey their situation and absorb the advice offered.
Opportunities to contact a lawyer by telephone or during a legal advice visit, reach the library for legal information and get legal support through welfare staff can be compromised by conflicting priorities within the custodial system, such as the emphasis placed on security and efficient management of inmates in correctional centres.
There also seemed to be clashes between the custodial system and the legal systems and processes, making it difficult for inmates to access legal help. For example:
Finally, while procedures are in place enabling inmates to participate in their criminal matters, there are less systemic processes and facilities available to help prisoners resolve their non-criminal problems. For example, the procedures for prisoners to access government agencies such as the Department of Housing or the State Debt Recovery Office are variable, not always immediately apparent, involve a number of steps to reach and are consequently less reliable. The visiting advice service also did not routinely cover civil issues. However, the addition of the LawAccess number to inmates' phone cards (subsequent to our interviews) has the potential to substantially improve access to advice on civil matters.
Pathways and intermediaries
Our interviews indicated that inmates rely to a high degree on other people to help address their legal issues. These people, or intermediaries, may act on the prisoners' behalf or as a relay point in the process of preventing, identifying or addressing a legal problem. Our analysis revealed that there are a number of features of these intermediaries and mediated pathways to legal help that facilitate an inmate's access to justice or act as a barrier.
Firstly, although there appeared to be numerous people prepared to assist with tasks associated with a legal problem, inmates often expressed confusion about who was the best person to approach, particularly in the first instance. Pathways to assistance with legal problems were fragmented and obscured by a number of practices: lack of information detailing appropriate contacts, several different staff groups covering the same task, tasks designated to one group being taken over by another, and different people within the one occupational group having varying degrees of knowledge and consequent capacity to assist. Inmates tend to respond to this uncertainty either by giving up the pursuit or approaching several intermediaries for the same issue simultaneously, thereby doubling up on the use of resources and further entrenching the confusion surrounding the question of responsibility.
Secondly, a major issue that arose particularly in relation to custodial staff was the lack of consistency and clarity in the assistance given to prisoners. A prisoner may feel uncertain about who to contact for assistance, when, in their experience, one officer in a certain position may have been helpful, yet another officer in the same position at a different time had not been particularly useful. The assistance provided may depend on the mood, disposition or skills of the individual officer, rather than their position. This can reinforce uncertainty about where to go for help.
Thirdly, mediated processes seem to delay help, with many interviewees describing apparently cumbersome processes to achieve relatively simple tasks. As a consequence, inmates would in some cases abandon seeking help because they felt it would take too long. In other cases, inmates missed an opportunity to address a legal issue or prepare effectively for a hearing. As the contingencies increased with every pair of hands a matter passed through, so did the opportunity for a breakdown or delay to occur.
The final factor that affected the utility of intermediaries was the potential for exploitation or being (unintentionally) misled because of the relationship of dependency that mediated pathways create. This sub-theme was mainly an issue where personal intermediaries (as opposed to 'professional' intermediaries such as DCS staff or staff of other organisations) were used. Although inmate peers were an easily accessible and often a preferable source of assistance with legal problems, the sensitive nature of the matters could sometimes place an inmate at risk of privacy breaches. In other cases the inmate may lose money, property or have debts incurred in their name because they have had to ask friends or family to pay bills, mind property or oversee their finances. In yet other instances, inmates may be given incorrect or incomplete information.
Our analysis also indicated that prison culture is a factor in shaping the degree to which inmates access justice and obtain assistance with their legal issues. The prison culture not only informs inmates' behaviour but also that of legal service providers and those who assist prisoners in obtaining access to service providers. Our interviewees observed this occurring in a number of ways.
Firstly, inmates were defined and define themselves as being in opposition to correctional officers and/or even the justice system itself. For example, an inmate may not report an assault perpetrated by another prisoner because it betrays a code of behaviour that pits inmates against prison authorities. Consequences, such as stigmatisation, harassment or even violence, reinforce these notions. Consequently, although there were processes available that provided legal redress for inmates who are assaulted, they are not pursued because the prison subculture makes it unattractive or at least problematic.
Secondly, violence committed against inmates is conceived as unremarkable in the prison environment. An assault may not be reported because physical violence is part of the experience of prison or because such incidents can be resolved by responding with further violence. This normalisation and naturalisation of violence enhances informal resolution of issues and undermines the formal systems that aim to deliver justice to inmates.
Thirdly, common notions that 'criminals' do not 'deserve' justice may lead to prisoners not challenging circumstances where they do not feel they have been treated justly because they perceive that they are thought of as unworthy of assistance. Such perceptions persist even though the 'lived' experience of many inmates and the attitudes of those who help them are to the contrary. A number of examples were given in our interviews where unfair treatment was explained by the inmates to themselves as 'criminals break the law therefore they deserve whatever treatment they get'.
Finally, a tendency to compliance, which is reinforced by prison culture, seemed to discourage inmates from being proactive about meeting their legal needs. Inmates may be less inclined to challenge perceived injustices, as non-compliance may attract disciplinary action or result in help being withdrawn. This passivity is a barrier in post-release life where the ex-inmate must be far more active in pursuing assistance.
Conclusions and policy implications
Taking Justice into Custody builds a complex picture of prisoners' legal needs and their capacity to access justice. To begin with, prison inmates are, as a group, disadvantaged. At the aggregate level they are under-educated, have high rates of mental illness and intellectual disability, have drug and/or alcohol addictions and are financially compromised. Our report indicates that imprisonment tends to compound this disadvantage. Each time the person cycles through the justice system personal supports are strained, skills become atrophied, financial resources are depleted and the capacity to operate well 'on the outside' and without resort to unlawful means is further diminished. Many of the symptoms and causes of these problems have legal implications, with family breakdown, difficulties with housing, high levels of debt, and conflict with government authorities all generating and reflecting the disadvantage that prisoners experience.
Formal opportunities do exist for prisoners to address their legal needs, particularly for criminal legal problems, and to prevent new issues developing. Our research has revealed that prison libraries, knowledgeable staff, visiting legal services, and LawAccess assist inmates to identify and satisfy legal needs. However, what was also revealed was the vulnerability of these opportunities to being compromised by poor inmate capacity, the systemic environment, the mediated and at times convoluted pathways to assistance, and prison subculture. However, looking across these factors, a range of other observations and themes emerged from the analysis.
The first theme concerns the seemingly inverse relationship between the accessibility of legal help and the quality of that assistance. For instance, while other inmates were a very immediate source of assistance, the quality and relevance of advice given was variable. In contrast more reliable sources of assistance such as lawyers were much harder for prisoners to reach. The need to bring quality legal assistance within more direct reach of inmates and the improvement in resourcing more accessible sources were two clear implications for future policy. The recent placement of LIAC2 materials into prison libraries and the addition of the LawAccess telephone number to inmates' phone cards were two examples of such strategies.
A second theme concerned the mismatches between what inmates needed to access justice and what opportunities were available. For instance, legal processes often rely on written information, and yet many prisoners are poorly educated and face difficulties with literacy. Further, resources within the systemic environment often fell short of demand for them — telephones, public legal professionals and welfare staff for example were in high demand but often, apparently, short supply. There was also evidence of mismatches between the routine and realities of life inside prison and the way services to prisoners were delivered. For example, lawyers were most accessible by telephone or in person at the times that inmates were more likely to be locked in cells unable to access the telephone. Similarly, restrictions on inmates' movements within prison could prevent their access to the prison library when it was open.
Disempowerment was a third theme concerning barriers facing prisoners when they try to prevent or address legal issues. The pervasive need for prisoners to rely on other people to carry out tasks on their behalf (such as calling government agencies, passing on messages and arranging legal visits) meant that inmates were often not in control of obtaining information and advice on their own behalf.
Consequences included delays, essential activities not taking place at all, and the creation of unequal power relationships that sometimes were to the detriment of the inmate. Additionally, the loss of skills and resources through repeated incarceration and concomitant reliance upon others may cumulatively erode inmates' capacity to address their legal needs on their own behalf even when released.
A final theme concerns how the capacity of prisoners to address certain legal issues varies at different stages of their incarceration. When first incarcerated, inmates are generally too unstable, stressed and focused on their criminal matters to have the capacity to focus on their longer term civil law problems. By the time they are in sentenced prisons, inmates appear to have more personal capacity to address these issues, but are faced with more systemic barriers to doing so (e.g. placement in a rural prison and less access to welfare or regular legal assistance). If civil law assistance was provided at a point in the incarceration when inmates were most able to engage with that assistance, the effectiveness of that assistance may be increased.
Table 10.1 on page 280 of this report summarises the changing capacity of inmates and the nature of their environment as they move through the incarceration process. It also shows the barriers they face, highlighting policy development and service provision issues.
It is important to recognise that some of the factors that affect prisoners' access to justice may not be easy to modify or will change slowly. These include the overriding priority given to security in jails, limited resources within both correctional and legal service delivery systems, the complex histories of prisoners and the limited cognitive capacity of many inmates, particularly during the early stages of custody.
However, here are some key elements that would address a number of the barriers identified in this study:
One important feature of the A2JLN research program is the examination of the particular access to justice issues and legal needs of selected disadvantaged groups. This qualitative study focuses on the legal needs of prisoners. Other groups examined as part of the program include older people, homeless people and people experiencing a mental illness. Prisoners were included in the A2JLN research program because of the concentration of disadvantage experienced by the prison population in terms of higher levels of mental illness, intellectual disability, histories of alcohol and other drug misuse, poverty, poor education, and unemployment. Prisoners were also included because there is available evidence that they experience a unique range of barriers in meeting their legal needs, there is a dearth of research on this topic, and prisoners are a group that have been so far 'missed' by our legal needs survey research.
While all prisoners face or have faced criminal law issues, this study also highlights the range of civil and family law problems that arise when people are often suddenly removed from their daily lives. These issues add to the legal problems accumulated in the chaotic period prior to custody (such as fines, debts, other criminal matters) and legal issues that are particular to inmates (such as parole and prison disciplinary matters).
This report also illuminates how the personal capacity of inmates, the systemic environment, the pathways to legal help and the prison culture all intersect to affect the capacity of prisoners to address their civil, family and criminal legal issues as they move through the incarceration process. It outlines the barriers caused by those factors, and highlights specific policy and service delivery implications for those working in the sector, to improve access to justice for people in prison.
Taking Justice into Custody is primarily based on consultations with legal and non-legal service providers, NSW Department of Corrective Services staff, serving inmates and people recently released from prison. It has also drawn upon existing literature and available statistics. While the report 'stands on its own', it is complemented by data collected in the other quantitative and qualitative components of the A2JLN program. The following reports in particular should be considered:
The aim of this research was to explore the capacity of prisoners to:
Legal and administrative context
To place this study in context, there needs to be some assessment of whether accessing legal information, gaining legal representation and participating in legal processes for prisoners is incompatible with the function of imprisonment, as administered by the DCS. A discussion of the broader legal and administrative context of the project is given below, preceded by a brief background to relevant prison policy in NSW.
The Nagle Royal Commission
In 1978 the Report of the New South Wales Royal Commission into New South Wales Prisons was handed down by the Honourable Mr Justice Nagle. The Nagle Report (Nagle) exposed the excessive violence and brutality within NSW prisons at that time, and made 252 recommendations for substantial reform of the system. The closed and secretive administration of the system as it was then was also highlighted as an area of concern. The Nagle Report is a key reference as it signalled a new direction for the administration of corrections in NSW.
A fundamental premise of the report was that prisoners should be perceived as citizens — with the legal rights and protections of other citizens. On this basis, the report outlined five principles to guide future planning for Corrective Services. In summary, these principles were that the intervention of prison should be only used as a last resort, for the shortest possible time, at the lowest appropriate security classification, recognising that it is the deprivation of liberty itself, which is the penalty, not the harshness of the time served. Nagle also proposed that an 'inmate should only lose his liberty and such rights as expressly or by necessary implication result from that loss of liberty' (NSW Royal Commission into NSW Prisons (Nagle), 1978, pp. 53–55). In other words, within the constraints of their imprisonment and the law, prisoners should have the same 'access to justice' as other citizens.
Notably, Nagle not only commented on the need to alter the fundamental principles underlying correctional policy, but examined the capacity of the system at the time to apply these principles. He observed:
Pertinent to this study was that in 1981, the Legal Aid Commission of New South Wales (Legal Aid NSW or Legal Aid) established a limited interim service to prisoners, providing representation at visiting justice hearings and an advice service in some jails. In 1986, the Prisoners Legal Service (PLS), a specialist service for prisoners within the criminal law division of Legal Aid was permanently established (Legal Aid NSW, 2006a pp. 9–10). The PLS continues to operate in NSW prisons.
The notion of 'prisoner as citizen' was not unique to the Nagle Report. Rather, it was part of and reflected a broader theoretical shift in the way that imprisonment was being understood (see Coyle, 2002, 2005). In short, the emphasis was shifting from imprisonment as the simple containment of offenders, to a focus of rehabilitating or resocialising offenders back into the community. The view of the prisoner as an 'imprisoned citizen' rather than as a person who had forfeited their citizenship was also reflected in the changing role of the prison officer. Lombardo (1981; 1989 pp. 2–6) described a shift in the role of prison officers from simple custodians to having a 'human service' role. Their formal and informal interactions with inmates were seen to contribute to the goals of imprisonment; both custodial and rehabilitative. The position description and applicant guide for correctional officers today reflect this change (NSW DCS, 2006a).
Since the Nagle Report, the NSW prison system has been subject to a number of other inquiries, most of which dealt primarily with broad policy concerns of the appropriateness and impact of imprisonment. Key reports from these inquiries which have covered issues relating to the legal or access to justice needs of prisoners include:
Overall, the number of inquiries into corrections in the last five years is indicative of the state of change both in correctional environments around Australia and in correctional practices. The Standard Guidelines for Corrections in Australia, jointly issued by the departments of each Australian state and territory responsible for corrective services, described these many changes as follows:
Current policy position
The stated mission of DCS, as set out in their 2004–2007 Corporate Plan, is 'reducing re-offending through secure, safe and humane management of offenders (NSW DCS, 2004b, p. 1). The values and principles outlined in the plan, which guide Corrective Services in NSW include (inter alia):
Preliminary investigation of the literature concerning prisoners suggested a relationship between legal need and re-incarceration. In particular, studies have identified the detrimental impact of accumulated legal and other social problems on the ability of a released prisoner to become re-established in the community and avoid offending (Borzycki, 2005; Baldry, McDonnell, Maplestone & Peeters, 2003; Aboriginal and Torres Strait Islander Social Justice Commissioner, 2002; Dutreix, 2000; Stringer, 1999). Problems cited include debt (including fines), housing and family matters such as child residency. Given this, the aims of the administration of prisons to maintain the welfare of prisoners when incarcerated and reduce their chance of re-offending once released may be negatively affected if legal matters are not attended to during incarceration. Therefore the role of prisons as broadly stated by DCS administration is compatible with facilitating prisoners' capacity to address their legal needs in prison.
More specifically, it appears that there is no barrier at law that precludes imprisoned people from securing legal advice and participating in legal processes. For example, Section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides that inmates may attend courts (including Children's, Federal and Family courts) whilst incarcerated. Further, while the right to legal representation for any person, including prisoners, is not enshrined in Australian law,4 the DCS Operations Procedures Manual for all prisons in NSW makes the following provision in relation to accessing legal resources:
One of the first issues that needed to be defined was the target group of our project. Broadly speaking, the term 'prisoners' could include people who have been arrested and are in police custody, people in jail or juvenile detention, and people who are detained by the Department of Immigration and Citizenship (DIAC). While all of these groups may face access to justice issues, the focus of our study was on prisoners whose 'confinement was the responsibility of a corrective services agency'. That is, people who were held in full-time custody in a NSW correctional centre.Periodic detainees and those on home detention were excluded from the project. However, offenders in police/court cell complexes managed by DCS are included.5 The sample was further restricted to adults as the Juvenile Justice System (covering people aged younger than 18 years) is sufficiently different to the adult system to warrant separate investigation.
However, to fully appreciate legal need in this context, we have also drawn upon the experience of people recently released from jail. Their experiences remain pertinent to the legal needs of serving inmates for several reasons:
'Access to justice'
While we recognise that 'access to justice' can be construed more broadly than this, we have not, in this study, analysed broader notions of 'rights' or 'justice', beyond what the law currently states. Rather, the project has endeavoured to investigate issues of access to justice according to the law as it stands. However, the legal landscape for prisoners differs in some ways from that of other citizens. There are some laws and regulations that apply only to prisoners (such as the law and regulations surrounding parole or behaviour in prison). There are other laws which specifically exclude prisoners or certain prisoners from particular privileges or 'rights' held by other citizens (such as the right to vote in an election). These are described in Appendix 1.
In order to appreciate the access to justice issues that prisoners experience, we first had to establish what types of legal problems are faced by prisoners, or are likely to develop during the course of, or as a result of imprisonment. We have explored criminal, civil and family law issues facing inmates, as well as the circumstances associated with those problems developing. In terms of assistance with legal problems, we have looked at help provided by legally trained professionals, as well as the assistance provided by non-legal advocacy and support agencies/personnel, both within and outside the jail system, to resolve or prevent legal problems.
In addition to the above, in our examination of prisoners' ability to access justice we have analysed both the capacity of inmates to access 'end product' events such as legal advice or court attendance, as well as the intermediary steps that lead to those events. This includes, for example, the ability to obtain information about how to contact a lawyer from prison or how to get to visit the prison library. These intermediary steps, as will be shown in subsequent chapters, are especially important in the prison environment and have assumed a prominent role in our discussion of access to justice. Accordingly, 'access' to justice has been treated more broadly than just physical access to legal information, advice, representation, or legal processes. It has been taken to include the efficacy of that access, for example the quality of a prisoner's interaction with their lawyer.
This report is divided into three main parts: background, results and analytic chapters. The first part provides the broader context to the study and includes a description of prisons and prisoners in NSW along with a review of the literature on prisoners and their legal needs (Chapter 2). This part also includes the method used to collect the data for this analysis in addition to a description of the inmate sample (Chapter 3). The second part reports on the raw results of the study, specifically: the legal issues reported by interviewees in the sample (Chapter 4) and the opportunities and barriers to access justice described by the interviewees (Chapter 5). The third part of the report contains the analysis and discussion chapters. Four analytic chapters (Chapters 6–9) examine the factors underlying the barriers described in Chapter 5. The discussion and policy implications chapter (Chapter 10) also includes the conclusion.
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 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:
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).
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
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:
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:
Table 2.2: Inmates in NSW Correctional Centres on 30 June 2006 and in the 2004–05 year
Number of inmates on June 30 2006
Number in the 12 months
(July 05–Jun 06)
|Court/police cell complexes – DCS managed||
(daily average 105)
Received into cells but
released without transfer
to a correctional centre
Received into full-time
custody on remand
Commenced a full-time sentence
|Full-time custody in a correctional centre (remand and sentenced)||
Received into full-time custody
at correctional centres, including
those who were transferred
from court cell complexes1
|Released – on parole||
|Released – unconditional (full sentenced served)||
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.
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
2 161100%8 948100%
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.
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).
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:
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
|45 and over||
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||
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.
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:
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).
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).
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:
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).
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.
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:
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).
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:
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:
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:
Figure 1: A comparison of the access to Legal Aid Queensland, between the general public and women prisoners in Queensland
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:
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:
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:
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).
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.
Prior to the main data collection phase, four key informants were consulted in order to gauge the scope and direction of the project. The informants were a senior solicitor with the PLS, the Chief Executive Officer of a non-government organisation that supports prisoners and their families, a university academic who has conducted research with ex-prisoners, and a staff member at the head office of DCS. These people provided invaluable guidance as to appropriate selection characteristics for both stakeholders and inmate interviewees, the breadth of areas to cover in terms of legal problems, and the issues to consider in conducting research in a prison environment.
There were two main populations drawn upon for the empirical data component of our research: an inmate (including ex-inmates) population and a stakeholder population (DCS staff and non-DCS workers). As it was necessary to conduct the interviews with prisoners and the majority of interviews with DCS staff on site at the prisons or probation and parole offices, an application was made to the Commissioner of the DCS (and, inclusive of this, to the DCS Ethics Committee) in August 2005 for permission to conduct the research. The project was approved on 18 November 2005 allowing access to 40 prison inmates, 10 parolees on parole and 10 DCS staff. These numbers were subsequently extended with approval to 46 inmates and 20 DCS staff.
The interviews were conducted by six experienced researchers (four permanent staff of the Foundation and two casual employees recruited specifically for the project). Given the unique circumstances of the target population, all interviewers attended a day training course that covered a refresher on qualitative interview techniques as well as specific issues relating to interviewing an inmate population. The training was conducted by a researcher with considerable experience in collecting data from people in custodial settings. This preparation was invaluable in terms of setting realistic expectations for recruitment, pre-empting problems in gaining access to prisoners, and increasing awareness of the potential risks to the safety and peace of mind for the researcher and inmate alike.
The following sections describe in detail the procedures used to collect data from each of the prisoner and stakeholder populations, followed by a description of the techniques employed to analyse the combined dataset.
Prisoners and ex-prisoners
Population and sampling
The prisoner sample for this project consisted of people who were, at the time of data collection, in full-time custody, or had been released from full-time custody in the last two years. The latter group consisted of both parolees and people who had been released unconditionally in order to capture any differences in the legal need experienced by people in contact with a parole officer compared with those without such contact.
Current inmates were drawn from five NSW prisons. Prison selection was aimed at yielding a range of interviewees in terms of geographic location, degree of security (at a facility level) and gender of inmates. In consultation with DCS, the following correctional centres were selected:
Determining a recruitment pathway for ex-prisoners not on parole was less straightforward compared with the two subgroups described above given the lack of formal links between these ex-prisoners and any particular service, such as probation and parole. The approach taken was to request the assistance of a number of services used by ex-prisoners, mainly from the Foundation's existing agency networks. Four non-legal support agencies (housing and welfare support serving, amongst others, ex-prisoners) agreed to assist the Foundation project team in recruiting interviewees. Two of these agencies were located in an area close to a rural prison; the remaining two were located in the suburbs of Sydney.
Description of the inmate sample
In order to ensure coverage of a variety of experiences, interviewees from a range of backgrounds and custody status were sought. Appendix 2 details the sampling frame used to guide the selection of people for interview. Table 3.1 displays the demographic characteristics of the final sample. Forty-six prisoners and 21 ex-prisoners were interviewed for this study. The majority of interviewees were over the age of 25. Twenty-eight interviewees were aged between 25–34 and 36 interviewees were over the age of 35. Only 10 per cent interviewees were under the age of 25.19
Reflecting the representation of women in prison across the NSW prisoner population, only eight women were interviewed and the remainder of the sample were men. In terms of cultural background, the majority (55%) of interviewees were from an Anglo-Saxon background. Recognising both the over-representation of Aboriginal people in NSW prisons, together with the unique experiences and particular needs of Indigenous Australians, care was taken to ensure that Aboriginal people were appropriately represented. Twenty-seven per cent of the final sample identified themselves as Aboriginal people. Ten prisoners and two ex-prisoners were from a Non-English Speaking Background (NESB) (18% of sample) including Lebanese, South American, Pacific Islander, Burmese, Greek and German interviewees.
Consistent with the description of this population earlier in this report, the majority of inmates reported limited educational experience with 22 per cent not finishing year 10, and seven per cent not finishing primary school. Thirty-eight per cent left school between years 10–12 and none had completed university. Finally, over two-thirds (45) of those sampled had children.
n = 46
n = 21
n = 67
|Less than primary||
|Less than Year 10||
|Yr 10–Yr 12||
|Some tertiary (TAFE or university)||
Table 3.2 displays the characteristics of the inmate sample across a number of characteristics associated with their imprisonment. Sixty-nine per cent (34) of the prisoners interviewed were incarcerated at the time in urban jails and the remaining 31 per cent (12) were located at a rural/regional prison. Among the ex-prisoner interviewees, twelve resided in the city and nine were from a regional/rural area.
n = 46
n = 21
n = 67
|First time in prison||
|Been previously incarcerated||
n = 46
|New inmate (<3 months)2||
|Established inmate (> 3 months)||
|Pre-release (<6 months to go)||
n = 27
n = 23
n = 50
|6 month–5 years||
In terms of imprisonment status, the sample included 27 sentenced inmates, 19 inmates on remand, 15 ex-prisoners on parole and six inmates released unconditionally. Among the current prisoners (n = 46), nearly 40 per cent (18) were held in minimum security, while 22 per cent (10) were in medium security and 20 per cent (9) were held in maximum security.20 A further six interviewees were in protective custody. No prisoners currently in segregation were interviewed.
Of all interviewees, 40 per cent reported that this had been their first time in prison (21 prisoners and six ex-prisoners) however over 50 per cent reported that they had been incarcerated before (23 prisoners and 13 ex-prisoners).
Seven inmates, all remandees, had been in prison for less than three months, and were unaware of how long they would be incarcerated for. More than three-quarters of the inmate interviewees (39) had been in prison for longer than 3 months. Four of these established inmates had six months of their sentence remaining to be served.
We have included information about the length of sentence for both those currently serving and those recently released. The length of sentence for those recently released was the sentence associated with their most recent incarceration. Fifty-four per cent (11) of interviewees who were serving, or had served a sentence, were serving (or had served) prison terms of between six months and five years. A further 36 per cent (18) had sentences of over five years. Only five of our interviewees were serving or had served sentences of less than six months. Therefore, short term inmates (jailed for less than six months) are considerably under-represented in our sample. In recognition, we have drawn upon the stakeholder interviews and other literature to consider the particular issues facing this group of inmates.
Recruitment of interviewees who were current inmates was facilitated through a liaison person located at each of the correctional centres. Once DCS had approved the research, the liaison person at each facility was identified after we wrote to the general managers and asked them to nominate a staff member to act in this capacity. In general, the liaison person was a welfare officer, education program manager, or security manager. The senior researchers on the project visited each centre in Sydney to ascertain appropriate interview spaces, and to familiarise themselves with prison entry and security procedures. Liaison persons were sent a suggested profile of the prisoners along the lines of the characteristics listed in Appendix 2, and other requirements were given where appropriate. The only exclusion stipulated was that potential interviewees should not pose a threat to the researchers, although inmates charged or convicted of a violent crime were not automatically excluded. There were no other restrictions in terms of competence to participate other than that the interviewee could participate in an interview conducted in English to a degree where they felt comfortable doing so. After discussion with DCS research staff, it was decided that interviewees currently in prison would not be offered an incentive to participate for a number of logistical and ethical reasons. The researchers attended the prisons at a pre-arranged date and time and interviewed inmates typically in legal or general 'visits rooms'. Although interviews were conducted within the sight of prison officers (either directly or via security camera), they were kept confidential by being conducted beyond the hearing of prison staff.
Recruitment of ex-prisoners on parole was facilitated through managers or unit leaders located at the three probation and parole services described above (see 'Population and sampling'). As with the sample of current inmates, liaison persons were sent a profile of the desired interviewee sample outlining the desired demographic characteristics (e.g. sex, ethnicity and length of time served) to guide interviewee selection. The liaison persons were also provided with information to pass onto potential interviewees. An incentive of $30 was offered in order to encourage people to take part. The researchers attended the service at a pre-arranged time and interviewed the parolees in parole interview rooms.
For unconditionally released ex-inmates, after initial contact was made with the host organisation, as with the probation and parole offices, staff were provided with information to give to potential interviewees. As with the parolees, an incentive of a $30 payment was offered. Researchers attended the service at a time and on a day convenient to the interviewee and the host organisation, and the interviews took place in the services' interview rooms or private offices.
It should be noted that among the ex-prisoner sample, seven interviewees who had originally been identified as having been released unconditionally by the host agency had subsequently been found to have originally been released on parole, though they were no longer on parole at the time of interview. However, given that six unconditionally released ex-prisoners had already been interviewed, the difficulties encountered in recruiting this group (perhaps because of their lack of formal requirements to report to services post-release) and the need for the project to progress to the analysis stage, further recruitment among this group was not pursued.
Interviews with inmates and ex-inmates commenced with a short description of the Foundation and the research project. To ensure informed consent, researchers also ascertained from the potential interviewee that they were clear about the purpose of the interview. They were also provided with the appropriate information sheet and a consent form that was read out aloud to them by the researcher (see Appendix 3). The form indicated that participation was anonymous and voluntary, that the interviewee could choose not to answer any questions and that they could stop the interview at any time. It also specified that, with their permission, the interview would be recorded and transcribed and that the transcribed material would be kept securely. They were further assured that the recording would be erased once transcribed.
The consent form included a description of the researchers' obligation with respect to the disclosure of criminal activity and that otherwise the interview was confidential. Interviewees were also reassured that DCS would not be privy to interview recordings or transcripts. Researchers further ensured that interviewees were informed as to how and in what context the information they volunteered may be used. Once this procedure was complete and the interviewee agreed to go ahead with the interview, they signed the consent form, which was countersigned by the researcher. The consent form was detached from the information sheet, and the latter left with the inmate.
The interview schedules (one for prisoners and one for ex-prisoners) were in the format of a series of semi-structured, open-ended questions seeking information about the interviewees' experience of different legal problems, what steps they had taken (if any) to remedy them and the current status of that problem (see Appendix 4). The schedules covered a range of issues, including general legal issues, housing, employment and income, credit and debt, family, crime, victim of crime issues, health, other legal matters and access to legal assistance issues.
If an interviewee indicated that they had a legal problem but had not sought to resolve it, they were asked why that was so. The questions were worded in such a way that the inmate did not have to identify an issue as necessarily a 'legal' problem such that latent issues would not be missed. Interviewees were also asked specific questions about legal service provision they had received in the past and problems they may have had in accessing a legal service. The only difference between the interview schedule for current and released prisoners was that questions were phrased to reflect their current situation in terms of their incarceration.
Population and sampling
Stakeholders interviewed for this study fell into two major groups: DCS staff and other service providers.
DCS staff interviewees included prison welfare staff (including a financial counsellor), parole officers, library staff, education officers, policy workers, 'Throughcare'21 workers, and department managers working both within correctional centres and in head office. Interviewee selection was based on the analysis to date and recommendations from workers in the field.
Interviews were conducted with 23 legal and non-legal service providers who provide support to prisoners and people recently released from prison. Interviewee selection and recruitment of this group was based on the research team's knowledge of workers in the field, and further recommendations from the stakeholders interviewed. We interviewed staff from Legal Aid NSW and the ALS, specialist and generalist community legal centres, pro bono legal service providers, public defender staff, LawAccess staff, and some private barristers and solicitors; government agencies including Centrelink; advocacy and support groups, such as Community Restorative Centre (CRC) and Prisoners' Aid and Justice Action; other post-release support services (including Supported Accommodation Assistance Program (SAAP) and other homeless services); and, official visitors. A complete list of the agencies interviewed is contained in Appendix 5.
Nineteen DCS staff were interviewed between February and August 2006 using semi-structured open ended interviews (see Appendix 4). Interviewees were provided with an information sheet and required to sign a consent form (see Appendix 3). Interviews were typically conducted on site in the staff member's office or another office space that provided a quiet and confidential environment. An interview schedule was developed specifically for DCS staff. One of the first steps required in the interview was a description of the role the staff member had in the department and the degree of contact they had with prisoners. Those staff members who had direct contact with prisoners were also asked to detail the degree to which prisoners came to them with legal issues, what legal issues did the prisoners require assistance and what did the staff member do in response to those requests. Interviews with head office staff focussed on obtaining a description of the systems that affected the legal needs of prisoners for which he or she was responsible and their opinion as to the impact of those systems.
Interviews with non-DCS stakeholders took place between December 2005 and May 2006 and were conducted face-to-face, mostly individually or in small groups of two or three. A roundtable consultation of legal practitioners was also held. The interview schedules included a number of open-ended questions, a subset of which was covered in all interviews. Further questions were tailored to the particular expertise of the interviewee. For example, the financial counsellor was asked more in-depth questions about credit and debt problems prisoners and ex-prisoners might face. Areas typically explored concerned the types of legal issues prisoners and ex-prisoners faced and what were the ways in which they tried to resolve those issues. Stakeholders were also asked about the particular types of legal issues for which prisoners/ex-prisoners requested assistance, and how the stakeholder dealt with that role. An example of interview questions used for these service providers can be found in Appendix 4.
As outlined in the information and consent forms for the prisoner and DCS staff interviewees, all data collected was considered confidential and could only be directly accessed by members of the research team. Three external transcribers were contracted to transcribe the majority of the interviews across the inmate and stakeholder samples. Researchers transcribed a small number of interviews when an interviewee expressed a particular concern about confidentiality and the researcher had consequently committed to personally transcribing that interview. The external transcribers were experienced in handling confidential social research interview material. They were required to sign a confidentiality agreement and meet specified security arrangements with the data. All transcription files once commenced were pass-worded and kept in computer folders with restricted access. Identifying information contained within the interviews was deleted or modified to protect interviewees' and their family/friends' identities in the transcripts and to ensure that publications arising from the project did not breach their privacy. All the names of inmate used in this report are pseudonyms.
Once both the stakeholder and inmate interviews were transcribed, the transcripts were entered into a qualitative software analysis program called QSR NUD*ST Vivo (Nvivo). This program assists in the organisation, storage and retrieval of qualitative data. It does not, however, impose any kind of pre-existent system of interpretation.
The analysis was conducted in two stages. In the first stage, the research team tagged segments of text with regard to its relevance to certain issues (e.g. DCS procedures, court procedures and government agency procedures) or whether the segments referred to the actions of the staff of such agencies, the inmates or their friends and family. To promote consistency of this process across the 109 interviews, a small number were coded by all researchers and then compared. From this procedure, a common coding system was developed and researchers further ensured consistency by frequently checking and rechecking coding decisions with the other researchers.
In the second stage, the data was then reviewed using the retrieval mechanisms of Nvivo, and it was then reanalysed for themes that recurred throughout the interviews around interviewees' decision-making processes. This was an iterative process whereby commonalities and systematic relationships were identified and then tested against the data. Preliminary observations made prior to the data being coded (e.g. issues identified while the interview data was still being collected) also informed this process. Departures from the major directions of these themes were also sought to ensure that the complexity of the responses of the interviewees was reflected in the analysis.
Although the findings described here have emerged from a systematic approach, it should be understood that because a quotation or practice has been included under one theme and interpreted in a certain way, this does not mean that we believe that that is the only way to interpret that event. Moreover, the aim of qualitative data analysis is to understand the meanings and processes associated with a particular phenomenon (Ezzy, 2001), in this instance, the access to legal information, advice, representation and participation in legal processes among prisoners. Consequently, the themes that are described here are selected, not so much for their popularity (although some of the strength of a theme may be related to the extent to which it is mentioned) but more for their ability to elucidate the experiences reported by the interviewees. Accordingly, qualitative analysis, in this context and more generally, focuses on the 'how' and 'why', rather than the 'how often'. This analysis consequently represents how the current researchers conceptualised the responses of the interviewees in relation to the central issues of the project. In this way, the themes described here, and the quotes used to illustrate them, should be viewed as only one approach to making sense of the data collected.
Criminal justice issues
While all prisoners face (or have faced) conviction for one or more criminal offences, they also may be subject to a number of other criminal justice processes during and after their period in custody. Specifically, as well as dealing with issues concerning the principal offence, prisoners may need to address bail, correctional centre disciplinary offences, warrants and parole. During post-release, prisoners will need to deal with varying degrees of police attention. Apprehended violence orders (such as an Apprehended Violence Order (AVO) and an Apprehended Domestic Violence Order (ADVO)) are included as a criminal justice issue as the breach of these orders is a criminal offence.
People are held in NSW prisons for a wide variety of offences. As 30 June 2006, 12.4 per cent of all NSW inmates were in custody with a drug offence as their 'most serious offence'. The next most common 'most serious offence' was major assault (11.7% of inmates), followed by break, enter and steal (11.3%). Other 'most serious offences' included: robbery with major assault (7.6%), other forms of theft (7.3%), driving/traffic offences (6.6%), murder (6.5%), breach of parole (6.5%), serious sexual assault (5.9%), other (non-major) assault (5.6%) and offences against good order (5.1%) (Corben, 2006a, p. 22).
It is important to note that we did not ask our inmate and ex-inmate interviewees about the offences for which they went to prison. However, during the course of our discussions, some interviewees revealed they were incarcerated for offences including drug trafficking, assault, murder and attempted murder, sex offences, Department of Community Services (DOCS) related offences, traffic offences, breach of parole, property damage, burglary, breached AVO/ADVOs and other, drug related offences.22 As indicated in the previous chapter, 19 (41.3%) of our prisoner sample were on remand for their offence and 27 (58.7%) had been convicted.23
Once convicted, an inmate's resolution of their criminal matter(s) may continue should they choose to appeal their sentence or conviction. Several inmates in the study reported that they had appealed or were in the process of appealing either their sentence or their conviction:
One of the first legal actions to be considered when someone is taken into custody is an application for bail. Bail is an agreement to attend court to answer a criminal charge. While not all inmates may be eligible for bail, bail can be granted at any stage during criminal proceedings. Certain conditions can be attached to a grant of bail if they are considered necessary for law enforcement purposes and the welfare of the community (Barry, 2004, p. 106). For example, conditions may include agreeing to reside in a bail hostel, or posting an agreed amount of money to be forfeited if the accused person fails to comply with his or her bail undertaking.24 Inmates on remand have either been refused bail, are ineligible for bail or cannot meet bail conditions. For instance, stakeholders interviewed for this study spoke of prisoners remaining on remand because they could not raise funds to post bail:
There is some literature to suggest that certain sectors of the population, such as people with intellectual disabilities, homeless people and Indigenous people are more likely to be refused bail and held on remand than others. For instance, the NSW LRC (1996) observed that 'people with an intellectual disability may have to be kept in custody inappropriately because of lack of understanding of bail conditions or lack of support in the community' (section 4.7; see also Simpson et al., 2001, pp. 48, 53, 61). Forell et al. (2005) also noted the particular difficulties homeless people have in getting bail as the result of not having a stable contact or address (p. 238).
As well as seeking to reduce the availability of bail for repeat offenders as mentioned above, the Bail Amendment (Repeat Offenders) Act sought to improve access to bail for groups of people with special needs, including Indigenous people (Fitzgerald & Weatherburn, 2004, p. 1). However, a review of the impact of this Act found that, between January 2001 and December 2003, the rate of bail refusal for Indigenous adults actually increased by 14.4 per cent compared with a 7 per cent increase in the bail refusal rate for non-Indigenous people (Fitzgerald & Weatherburn, 2004, p. 5). The authors suggest that this may be because Indigenous offenders are more likely than non-Indigenous offenders to appear in court with a prior criminal record (see Weatherburn, Lind & Hua, 2003), thereby including them in the group of repeat offenders that the changes were designed to target (see also AJAC, 2002). Overall, the types of issues raised by our interviewees concerning the difficulties of getting and staying out on bail are reflected in the broader literature.
Prisoners are subject to a set of regulations, which have disciplinary consequences. Under Part 2 Division 6 of the Crimes (Administration of Sentences) Act, the governor of a correctional centre can charge an inmate and conduct an inquiry if it is alleged that the inmate has committed a 'correctional centre offence'. A correctional centre offence refers to any act or omission by an inmate that occurs whilst they are in prison and is declared to be an offence under section 51 of the Crimes (Administration of Sentences) Regulation (regardless of whether the act is outside the prison context a criminal offence or not). This includes acts that are specific to prison management and the maintenance of good order, as well as assault or damage property. Examples of the types of disciplinary offences inmates face include:
Another legal administrative area unique to inmates concerns their classification status.
AVO/ADVOs are orders that aim to protect people from acts of violence. They do not impose a criminal record but it is a criminal offence to breach an order (Barry, 2004, p. 502). A few inmates interviewed for this study said that they currently had AVO/ADVOs in place against them:
Warrants were also raised as an issue affecting prisoners by our interviewees. A warrant is a written authority that enables police officers to arrest a named person. One welfare officer explained that in prison, warrant files are kept by the staff who hold records of all legal orders and bail orders. Inmates can apply to their wing officer to have any additional (that is, additional to matters previously dealt with) warrants 'called in' (executed). However, according to our interviewees, it was alleged that there is no routine process for police or prison officials to check warrants. This means if inmates have not 'called in' their warrants while in custody, or if new warrants have been issued, they are vulnerable to being re-arrested as soon as they leave jail:
A further issue associated with warrants raised in interviews, was the collection of DNA. In 2000 the NSW government introduced the Crimes (Forensic Procedures) Act 2000 authorising the collection of DNA samples from 'serious indictable offenders' currently imprisoned in NSW. These samples are stored on a national DNA database enabling inmates' (and others') DNA profiles to be cross-matched with DNA samples from crime scenes (Gans & Urbas, 2002, p. 3). In the eighteen-month review period adopted by the NSW Ombudsman, 10 000 inmates in correctional facilities were subject to DNA sampling (NSW Ombudsman, 2004).
Concern has been expressed by prisoner advocates about the collection of DNA from inmates, its implications for privacy (see Justice Action, 2008) and the threat it poses for public health protection in prisons as inmates fear providing pathology samples for fear of forensic evidence being taken (Levy, 2002, p. 252). Inmates serving custodial sentences for certain offences may be required to allow a DNA sample to be taken which may subsequently be used issuing new warrants for arrest. For the reasons given above, some inmates interviewed for this study feared that fresh charges may be laid as they come to the end of their sentence because of DNA evidence they had previously supplied:
Release on parole involves an offender being allowed to live in the community prior to the completion of their full sentence period, on the proviso that they adhere to certain conditions of that parole (Jones et al., 2006, p. 1). When a prisoner is sentenced, a non-parole period is determined and inmates cannot be released until this period has expired. Prisoners serving three years and less are automatically released at the end of their non-parole period. However, prisoners serving more than three years can only be released on parole by the State Parole Authority of NSW (SPA) (Barry, 2004, p. 910). In determining whether an inmate is to be released on parole, in addition to the public interest, the SPA takes into consideration whether there is 'sufficient reason' to believe that the prisoner will be able to adapt to community life (Barry, 2004, p. 190). If the SPA expresses an intention to refuse parole, the governors or their delegates must ensure that the inmate is notified of this intention so that they can apply to the SPA to have the matter reconsidered at a hearing.
Eligibility for parole
A number of our prisoner interviewees were ineligible for parole and were either currently serving out their sentences or had been released from prison unconditionally, at the completion of a full sentence. DCS workers said that many inmates were unable to get parole because suitable accommodation could not be found for them. This emerged as a particular issue for people leaving rural and regional jails:
As of 30 June 2006, there were 3 990 people being supervised on parole in NSW (NSW DCS, 2006d, p. 11, Table 6), comprising just over two-thirds of all released offenders. A key issue for parolees is to avoid breaching parole conditions and returning to jail for the remainder of their sentence. Research has suggested that 'many people who fail on probation or parole do so because they have breached the technical conditions of their parole orders and not because they have committed a criminal offence' (Jones et al., 2006, p. 2).
Our interviews indicated that some ex-inmates who had been successful in getting parole, breached it because they had had difficulty meeting their parole conditions post-release. For instance, people were reported to have breached parole for associating with 'known criminals' when they returned to live with family or in their community, because family or community members had also been convicted of crimes.
Several ex-prisoners and other stakeholders interviewed reported that ex-prisoners were often stopped and questioned by police in public places. This appeared to be particularly so for ex-prisoners living in small, regional towns:
Prisoners face a range of criminal justice issues. As well as the offences for which they were incarcerated and any outstanding matters, prisoners may be eligible to apply for bail or appeal their conviction or sentence. They are also subject to a new range of offences relating to their behaviour in prison and may have to adhere to conditions upon their release. For each of these different types of issues an inmate may require legal assistance. Indeed, inmates may require help with criminal law problems at any point in their incarceration, even though the most salient issues (bail and their principal offence(s)) occur during their period on remand.
Given inmates' acute need for criminal legal assistance, it can be easy to overlook the outstanding civil and family law issues that they may also have. Our investigations suggest that inmates often have civil law issues, arising in a number of ways: firstly, inmates may come to prison with outstanding civil legal issues arising from pre-existing lifestyles, or heavy financial burdens and other disadvantages. Second, they are likely to experience legal issues arising from the interruption that incarceration has on their lives, impacting on their employment and business affairs, housing and personal property and social security. Finally, the experience of being incarcerated can lead to other issues such as civil law claims for injury in prison, media related legal issues such as defamation and immigration issues. The effect of incarceration can also lead to problems once prisoners leave prison, such as discrimination in employment.
Business and employment
The interruption to a person's life that results from their incarceration can be extremely abrupt and relatively absolute. This presents very significant challenges to inmates who had been operating businesses or had responsibilities to an employer. Particularly if someone is remanded in custody, there can be little or no opportunity to close the business, 'tie up loose ends' or complete projects.
Fifteen of the current or past inmates interviewed for this project reported that they had paid work before they were arrested, including a small number who had their own business. Apart from any condition imposed by a court and a general prohibition on inmates profiting from their crimes, there is no statutory exclusion barring prison inmates from conducting business from prison. Equally there is no statutory right allowing inmates to conduct business from prison (personal communication: DCS Policy Officer, 13/02/07).25 However, whatever the rules on this issue, the ability to conduct business is also obviously severely hampered by inmates' physical location in the prison and their limited capacity to communicate with the outside world (e.g. through telephone or internet or email access). The inmates that we spoke to who had businesses, reported relying on less experienced business partners or family members to continue trading. Others reported that their businesses had simply collapsed:
Aside from the obvious impact jail has on a person's ability to participate in the workforce, interviews suggested that being in prison also has an impact on the ability of an ex-prisoner to secure employment once they leave. More specifically, prisoners may be subjected to both lawful and unlawful discrimination when they leave prison on the grounds of their criminal record. Discrimination on the basis of a criminal record is unlawful under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as the Human Rights and Equal Opportunity Commission Regulations 1989(Cth) extended the definition of discrimination in the Act to include criminal record (reg. 4(a)(iii)). However, there is an exception allowing discrimination in employment on the basis of a criminal record where it is an inherent requirement that an employee does not have a criminal record (HREOC, 2005, p. 13). For example, there are some occupations that people with certain criminal records are specifically prohibited from doing, such as lawyers, doctors and people working with children (HREOC, 2004, p. 7).
Several ex-prisoners reported being discriminated against in employment (either lawfully or unlawfully) after declaring they had been in prison.26 This is a particular problem for ex-prisoners living in small towns where they are well known locally:
According to DOH policy, if a DOH tenant is incarcerated, they can retain their leasehold for up to three months by paying $5 per week (NSW DOH, 2007a). After this period they are obliged to relinquish the property. Under the DOH's 'Absence from dwelling policy' (EST0039A), tenants need approval from the department if they are going to be absent from their dwelling for more than six weeks, but they are not allowed to sublet the premises in their absence (NSW DOH, 2007b). Whilst they are required to report their absence from the dwelling, in some cases, inmates may not be unaware of their obligation to do so:
Privately rented housing
Problems were also reported by interviewees who had been in private rental accommodation prior to going to jail. Firstly their incarceration may have been unexpected, leaving them little scope to notify their landlord prior to going into custody. Further, without assistance, it can be difficult to make arrangements to vacate premises once in prison. As one interviewee stated:
Property remaining outside of jail
Another area of legal need that seemed to arise in the early stages of people's incarceration was around personal property, which is left outside of jail. As noted above, incarceration is not always expected. Consequently, prisoners may not have made arrangements regarding their personal property and valuables:
The placement and care of pets is another issue faced by some people going into custody. This escalated into a legal issue for one inmate, when an animal welfare organisation took possession of his pet. Because the organisation could not dispose of the animal without his consent, they had to house it. The inmate was then liable for the cost of care for the animal.
Inmates need identification and other documentation upon release to access housing and Medicare, to secure social security benefits and other entitlements, to open bank accounts and to generally re-establish life after custody (Borzycki, 2005, p. 35).
However, consistent with earlier research (Galtos & Golledge, 2006, p. 21; Baldry et al., 2003; Borzycki & Baldry, 2003; and Ogilvie, 2001, p. 3; NSW Legislative Council, 2000) a number of inmates interviewed for this study or known to stakeholders (e.g. parole officers) had lost documents or had no knowledge of their whereabouts:
Property taken into custody
An issue also arose concerning what happens to property that inmates have with them when they are arrested or when they are put in a cell. There were some examples in the interviews of such property going missing in police custody.
On entry into prison
In 2003 Homersham and Grasevski reported that over 50 per cent of customers incurred a Centrelink28 debt on entry into custody (2003, p. 1). However the introduction of a Centrelink/DCS Program Protocol Agreement in November 2003 has resulted in reductions of debt incurred by prisoners (NSW DCS, 2006e). Under this agreement, DCS reception officers notify Centrelink when an inmate is received into prison custody, so that any social security payments being received by that inmate can be suspended. Indeed, the majority of inmates and ex-prisoners interviewed for this study reported having no social security debt because of this process. However, one homelessness worker interviewed for this study was of the opinion that inmates could slip through this notification system:
Some inmates admitted they had deliberately omitted informing Centrelink of their incarceration so that they had money to buy items such as televisions or other personal items for their stay in prison:
In their 2003 study Homersham and Grasevski also identified prisoners being released out of Centrelink business hours and their lack of identification as barriers to their obtaining and staying on social security benefits (p. 1). However, under the Program Protocol agreement mentioned above, Centrelink now provides an outreach service, in a number of (mainly urban) jails, to prisoners about to exit prison (NSW DCS, 2006e). This service, the Centrelink Prison Servicing Unit, organises their first payment when they leave, determines what types of benefits are appropriate once they are out, and assists prisoners to manage and repay any debts to Centrelink, (Barry, 2004, p. 913). Arrangements are also made for inmates to receive their first payment at the jail on release, so they do not need to go to the Centrelink office that day. Prisoners who are eligible for other Centrelink benefits, who have been incarcerated for more than 14 days and who are in severe financial hardship are also eligible to apply for a one-off crisis payment from Centrelink (NSW DCS, 2006c, s. 7.14). Centrelink outreach workers also arrange for inmates to receive this on release.
In our study a stakeholder suggested that recent national changes in social security eligibility could have consequences for people moving through the corrections system. For example, those people who had been receiving the DSP or a parenting payment prior to incarceration may be required to move upon release to Newstart, which involves more onerous obligations. In addition, in reapplying for a DSP, a person must re-establish their eligibility, which might be difficult if they have been in prison and do not have the medical evidence to prove that they have a disability.
Virtually all prisoners interviewed for this study indicated that they were in debt. Some debts pre-dated their incarceration while other debts were accumulated (and were still accumulating) during their jail time. As well as debts owed to the DOH and Centrelink, prisoners reported owing debts to wide a variety of other creditors:
As well as these more general debts there are two other common sources of debt for prisoners and those recently released from jail. These are the requirement for some prisoners to pay victims compensation restitution, and fines (including court costs).
Under the Victims Support and Rehabilitation Act1996 (NSW), victims of violent offences can be awarded compensation of between $7 500 and $50 000. While the award is paid out of the Victims Compensation Fund, funded by the NSW Treasury, an inmate convicted of the offence which caused the injury, is liable to repay the Fund for all or some of the compensation paid to their victim (Victims Services NSW, 2007a). In a review of post-release services for Australian prisoners, Borzycki (2005) noted that 'prisoners can exit custody with already accumulated debt, and because they are unable to access emergency support or secure a source of income, may be unable to pay any justice system mandated restitution' (i.e. victims compensation restitution) (p. 35). In our study this was identified as another significant source of debt for some inmates:
Victims compensation restitution is over and above the State Victims Compensation Levy, which all offenders who are convicted of an offence that is punishable by imprisonment are liable to pay (Victims Services, 2007b). The DCS Operations Procedures Manual indicates that the levy is $30 for a minor offence and $70 for a major offence (NSW DCS, 2006c). Many of our interviewees reported that the levy was taken out of their jail wages on a weekly basis, although they were not aware prior to going to jail that they would have to pay this levy:
No home, no justice?, a study by the Foundation on the legal needs of homeless people, identified fine-related debt as a significant issue for people who are homeless. Given the documented associations between recently released prisoners and homelessness (Baldry et al., 2003; Forell et al., 2005, pp. 105–108), it might be expected that that fine-related debt is also an issue for this population. The findings from this study suggest that this is indeed the case. The vast majority of inmates and ex-prisoners in the current sample had received fines. Sources of these fines included traffic and transport fines, as well as court-imposed fines from current and past offences.
Further, failure to pay fines may lead to cancellation of a person's driver's license. Briefly, when outstanding fines remain unpaid, the SDRO instructs the RTA to suspend or cancel a person's driver's license until they pay the outstanding debt. This can add to the challenge of gaining employment and generally re-establishing life after custody (Galtos & Golledge, 2006, p. 21). Many inmates in this study reported that their licenses had been cancelled as a result of outstanding fines, for example:
Injury and illness in prison
Once an inmate has been received into prison, they come under the custodianship of DCS. As such, DCS owes a duty of care to prevent injury to inmates and staff arising, amongst other things, from self-harm, injury and industrial accidents (NSW DCS, 2006c, s. 8.26). Several DCS workers interviewed for this study acknowledged their duty of care obligations to inmates and gave examples such as placing inmates who were at risk of suicide under observation; placing into segregation inmates who had been at risk of harming other inmates; and, placing on protection inmates who had been under threat from other inmates. In the words of one welfare officer:
Injury arising from assault
According to our interviewees assaults amongst inmates are commonplace (see also Chapter 9). Interviewees indicated that prison officers would respond to these assaults by taking inmates to receive medical treatment and by offering them the opportunity to have their attackers charged. However, a few inmates suggested that the incidence of assaults often arose because custodial officers had failed to adequately protect inmates from being assaulted or attacked by other inmates. One inmate specifically referred to an incident where he had been attacked in a prison yard, but claimed the surveillance camera that normally kept watch over this area was not facing the yard at the time of the incident (Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison).
Different sources of information about assault, injury and violence in prisons provide vastly different pictures of this issue. The Productivity Commission provides annual statistics on the incidence of reported assaults in Australian prisons. The reported rate of prisoner on prisoner assaults in NSW prisons in 2005–06 was 15 per cent of prisoners with a further 0.4 per cent for 'serious assault' (SCRGSP, 2007, Table 7A.14). However, while these statistics are provided each year, and are used as an official measure of prison safety, the reliability of these figures is uncertain, due to the likely underreporting of assault in prison (see Chapter 9 and Butler & Allnut, 2003).
Another indicator of the level of assault in prison is the IHS. This survey reported that twenty-eight (19%) women and 123 (18%) men had sustained at least one injury in the three months prior to the survey. The most common cause of injury for both sexes was being struck by an object or person (32% (women) and 42% (men) of all causes). Twenty-eight (90%) injuries reported by women and 125 (80%) reported by men had occurred in prison. Hospitalisation was required by three (10%) women and seven (4%) men (Butler & Milner, 2003, p. 68). Assaults are the second most common form of injury treated in NSW prison clinics (Schofield et al., 2006, p. 499).
A more recent survey of prisoner drug use and associated violence indicated that 21.4 per cent of inmates reported being assaulted by an inmate and nine per cent by a prison officer during their current prison term (down from 35.6% and 11.5% respectively in 1998). Most inmates reported having witnessed a fight (84.2%) during their current prison term and 36.8 per cent had witnessed more than five fights (Kevin, 2005, pp. 20–21).
In terms of sexual assault, 23 per cent of females and 15 per cent of males interviewed in the IHS reported that they were 'aware of sexual assaults in prison in the past twelve months'. However, as the question was deliberately asked so as not to relate to their own personal experiences, it is possible that a number of inmates' responses may be describing the same incidents (Butler & Milner, 2003, p. 134) and therefore these statistics may be subject to (at least) double counting. The Framework Report, which examined the needs of intellectually disabled offenders (Simpson et al., 2001) described threatened and actual physical and sexual violence as one of the main issues of concern to prisoners with intellectual disabilities. In an earlier survey of NSW prisoners aged 18–25, Heilpern (1998) identified a high incidence of sexual (and other) forms of abuse, especially amongst male respondents in NSW prisons.
Three inmates in this study reported being concerned about the way in which their offence had been depicted by the media. One solicitor interviewed for this study provided an example of an inmate who had committed a highly publicised crime. She said that negative news articles had been published in the media about this inmate, who was concerned about the impact of the publication on her family outside prison:
Material that can be published includes the 'bare facts' of the case as well as a 'fair, accurate and contemporaneous' report of the court proceedings (Barry, 2004, p. 872). A case is affected by these rules once a person is arrested until their appeal rights are exhausted (Barry 2004, p. 871). However, the bare facts, the name of the person charged and what they have been charged with are not prohibited (Barry, 2004, p. 872). An analysis of whether these rules affected the above two interviewee's cases, should take into account whether the show went beyond the facts and whether a physical depiction (photographs, pictures or video footage) occurred before the offender's appeal rights were exhausted.
Non-Australian citizens (including permanent residents) imprisoned in NSW may face the prospect of being deported upon release. Indeed, the Immigration Advice and Rights Centre (IARC, 2006) identified prisoners in five situations who are most commonly affected by the risk of deportation. These are:
Several inmates that we interviewed, who were not Australian citizens, had been served a deportation notice by DIAC. Others had not received such formal notification but had concerns they would suffer a similar fate. Those inmates who had been living in Australia for many years or who had children and family here were particularly anxious about the prospect of being deported:
There were also cases in this study where the inmate actually wanted to be returned to their country of origin. Once sentenced, arrangements can also be made for sentenced inmates, who are nationals of countries with whom Australia has a prisoner transfer agreement, to be transferred to their country of origin to serve the remainder of their sentence (Cth AGD, 2006). One inmate who was currently on remand at the time of the interview discussed her wish to be transferred back to her country of origin after she had been sentenced:
As described above, prison inmates commonly face a range of civil law issues. Not only may inmates go to prison with outstanding debts, housing and social security issues, but their often sudden and relatively comprehensive removal from society, itself raises a raft of potential legal problems. Inmates have difficulties settling and/or meeting existing obligations, such as business or employment arrangements, debts and tenancies. In addition to the very practical barriers to settling their affairs, they may not know for how long they will be in prison, making pre-emptive action difficult, lest they be released. Finally, the experience of being incarcerated can lead to further civil law issues, claims for injury in prison, media-related legal issues such as defamation, the requirement to pay victims compensation restitution and immigration issues. The effect of incarceration can also lead to problems once prisoners leave prison such as discrimination in employment.
As indicated in Chapter 2, while 59.2 per cent of inmates have never married (Corben, 2006a, p. 20), 47 per cent of male inmates and 57 per cent of female inmates completing the IHS reported having one or more children under the age of 16 (Butler & Milner, 2003, p. 28). DCS has recently begun registering the numbers of child visitors to correctional centres and their relationship to the prisoner they are visiting. Since January 2004, over 25 000 children were registered as visitors to NSW correctional centres, with 47 per cent of these child visitors aged under ten years and 65 per cent visiting a parent in custody (NSW DCS, 2005a, p. 24). These data highlight the number of children affected by having parents and other close relatives in custody. The sheer number of inmates who have partners and or children would suggest that there is potential for inmates (in the same or greater proportions to families outside the correctional system) to experience, while they are in custody, family law or care and protection issues relating to children. Similarly, the level of domestic violence experienced by prisoners, particularly women prisoners (see Chapter 2) would suggest this as another area of legal need.
Several inmates interviewed for our study reported having family law problems. Two inmates in our sample who were currently in prison reported going through divorces. However, overwhelmingly, family law problems related to access and residency of children. These appeared to occur whilst inmates were currently incarcerated as well as occurring after being released from prison. Approximately two-thirds of inmates and ex-prisoners interviewed for this study reported having children, although many did not have those children in their care at the time of arrest. Most male inmates with children (where those children were housed with family) said that the children were with the mother, while female inmates tended to have their children staying with extended family, often parents. In cases where children were placed with family, most inmates said they were satisfied with those arrangements in the circumstances:
Substitute care for children
Care for children through DOCS was another legal issue encountered by inmates interviewed for this study, particularly when people, often women, are first incarcerated:
It is noteworthy, that the parents whose children had been taken into care since going into custody, appeared to have more involvement in the legal proceedings concerning their children's care than the parents whose children had been in care before they went into custody. The survey found that the former group were more likely to know that their children had been before the court (for care proceedings), had been present at the court hearing and had a lawyer at the court hearing (Brookes, 2000, p. 18).
Custody issues and housing
From our interviews, it also appeared that inmates had difficulties regaining custody of or contact with their children once they had been released. Our interviewees indicated that contributing to these difficulties were issues such as inmates not being able to find suitable accommodation and the children having been removed from their parents for long periods:
Accordingly, whilst some data indicates that more than half of the inmates in jail have never been married, many inmates do have children. As well as pre-existing legal issues arising between partners and concerning the care of children, our data suggests that the incarceration of a parent or partner may itself precipitate family law and child custody issues. As well as the acute child custody issues that may arise upon a prisoner's arrest, inmates may need assistance with family related issues throughout their custody and upon release. Post-release child custody issues may also be affected by housing difficulties.
Interviewees in our study suggested that although inmates come into prison with pre-existing civil law issues (e.g. debt, fines and housing), family matters and, of course, their criminal legal needs, there is also a range of legal issues experienced by inmates and ex-prisoners that arise from imprisonment. The interruption to a person's life brought about by sudden incarceration affects inmates' housing, child care arrangements, personal effects, employment, financial obligations and social security payments.
Certain legal issues may also arise as a direct outcome of imprisonment such as prison disciplinary action, deportation or discrimination. Once released, ex-prisoners report problems with parole, policing, warrants and discrimination, as well as those problems that remain from before or during their incarceration. It appears that the confluence of legal problems on release from jail may affect inmates' capacity to successfully reintegrate into the community.
These findings suggest that inmates not only need access to criminal law assistance while in prison, but also to assistance with a broad range of civil and family law matters. Indeed the provision of legal assistance in jail may have benefits well beyond an inmate's term in prison. So what are the opportunities and mechanisms available to inmates whilst in prison? Given the very literal barriers and restrictions imprisonment imposes on inmates, how do inmates address existing legal problems and prevent other significant problems from occurring? Chapter 5 will describe the opportunities for inmates to get legal assistance and to participate in relevant legal processes — criminal, civil and family. It will also summarise some of the immediate barriers encountered by our interviewees in using these mechanisms.
As already discussed in the introduction to this report, the ability to access justice among prisoners as it is being examined by this report not only includes 'end product' events such as an advice session, a court appearance, or obtaining a piece of legal information, but also the steps in the process leading to those 'end products', such as being able to obtain the requisite form, making an appointment, getting access to a library, or just getting some assistance to know what will be the next step in a process. Indeed, it appears many of the difficulties inmates have in servicing their legal needs occur within these intermediary steps.
The purpose of this chapter is to summarise the barriers encountered by prisoners in the context of the steps they need to take from prison in order to access legal information, advice, and representation and to participate in legal processes.. This will then form the background to the subsequent four chapters, which describe in detail the circumstances that generate, maintain or ameliorate the problems inmates have with addressing their legal needs, supported by quotes from our interviewees.
In this report, 'legal information'31 refers to the information found in legal text books, case law and legislation. It also covers plain language legal information32 including material produced by DCS where it contains some legal information (e.g. the Inmate Handbook contains contact details for Legal Aid NSW and the ALS) and brochures/ cards/posters produced by legal services for distribution. Information may be about specific laws, legal problems or legal processes, or about where to get legal advice or representation for criminal, civil and family law matters. Accordingly, legal information in this context refers to specially produced legal information materials not given verbally. Information given by non-legally trained people are considered intermediary steps to legal advice and information and as such are discussed as they arise, but is not considered in this context as legal information.
Legal information in prison
Among the inmates and ex-inmates interviewed for this study, legal information was sought for a range of reasons: in order to progress a legal matter such as a bail application or an appeal; or, to participate in the running of their criminal matter by drawing on materials such as specific legislation and case law. Inmates also sought legal information to gauge what to expect at a sentencing, to judge the fairness of their sentence, or to gauge the perceived competence of their lawyer. Further, although the topics mentioned by interviewees revolved predominantly around criminal matters, inmates also sought legal information on family matters (child custody and divorce), immigration and financial issues. It would appear from our interviews that the legal information sought not only helped inmates to understand their legal position but also afforded an autonomous perspective on the legal processes of which they were the subject. In this way, legal information provided an opportunity for inmates to more fully participate in legal processes as well as a means by which (in their view) they could assess the fairness of those processes.
Despite their real and sometimes urgent legal needs, people in prison are much more limited in how and where they can obtain legal information because they cannot actively seek it in the same way someone not in prison can (see Figure 1, p.32). Specifically, their range of choice of sources of information is narrower (for example, inmates cannot go to a public library or access the internet) and the opportunities to consult those sources they can access may be subject to strictures generated by other prison functions.
According to the inmates interviewed for this study, the major sources of written legal information for prisoners were the prison library, their legal advisers and DCS staff (for DCS-produced materials and written materials produced by legal service agencies such as brochures and posters). According to our interviewees, the success with which those sources yielded the required information varied. Issues associated with obtaining information from legal advisers are covered under 'Legal advice and representation' in the current chapter and from DCS staff under 'Professional intermediaries' in Chapter 8. However, it should be noted that the issues raised in those sections could also be applied to obtaining legal information.
All NSW correctional centres have at least one library (which can vary in size from a cupboard of books to a fully functional library), which may contain some legal information as well as recreational and other reading material. However the main law library is located at the Metropolitan Remand and Reception Centre (MRRC). Inmates not at MRRC may order articles from the law library via the loans service. They must complete a written request form detailing the information needed and then submit the form by fax to the MRRC law library. The librarian gathers the relevant material and sends it to the prisoner. In terms of holdings, all libraries are required to at least have copies of the DCS Operations Procedures Manual, an up-to-date copy of the Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation; up-to-date copies of 'any other relevant legislation';33 and approved journals and reference books (NSW DCS, 2006c, s. 5.6). It should be noted that since our interviews DCS has funded plain language legal resources from the State Library's Legal Information Access Centre (LIAC) have been placed in all NSW jails. These are described in more detail in Chapter 7.
All inmates, including those on segregation, protection limited association, protection non-association and on special management area placement are supposed to be informed about the library services, and have the library or library services made available to them (NSW DCS, 2006c, s. 5.6). There is no access to the internet in any DCS correctional centre.
Problems/barriers to obtaining legal information in prison
Although a number of interviewees in this study were satisfied with the use they had made of the prison library services, other interviewees noted a number of difficulties in obtaining legal information from this source. These were:
Legal advice and representation
In this report, legal advice refers to a lawyer acting in their official capacity34 offering or providing a solution to an individual's legal problem. Legal advice can be given face to face, by telephone, AVL or in some cases, by mail. An example of legal advice is when a solicitor tells a client what his or her options are, after he or she has received a letter of demand to pay a debt.
Legal representation covers services provided by legal professionals that go beyond providing legal advice. These services may include drafting documents (e.g. wills and contracts) and representing a person in a legal matter (e.g. negotiating child residency and contact agreements). Legal representation also includes preparing documents for court appearances (e.g. statements of claim and affidavits), and representing people in court and tribunal processes.
As with any person facing court on a criminal charge, prisoners often seek to engage the services of a lawyer. A lawyer may be funded either publicly, for instance partly or fully by Legal Aid or the ALS, or privately, where the cost is borne solely by the individual, their friends or family. The majority of the prisoners and ex-prisoners interviewed for this study had, at some point, used a publicly funded solicitor.
Securing advice and/or representation from a lawyer is clearly not unique to people defending a charge who are also in prison. However, imprisonment means that it is likely that the process of accessing a lawyer and/or interacting with an advocate would differ from that which would occur out of prison. The following paragraphs describe the major means for obtaining legal advice and representation whilst a person is in prison. The information flows from our interviews and is confirmed by the relevant service providers.
Prisoners Legal Service (PLS)
As briefly mentioned earlier in the literature review, the PLS provides, in the main, representation to inmates at Parole Authority hearings, life sentence determinations, segregation appeals and visiting justice hearings. The PLS also coordinates a visiting legal advice clinic to prisons. In urban areas, the service is mainly staffed by PLS solicitors, while in rural areas the clinic uses lawyers from the regional offices of Legal Aid or private solicitors acting for the PLS. PLS solicitors do not represent inmates in court for matters relating to their criminal charge. While run by Legal Aid, the PLS functions as a separate service to the Legal Aid Duty Lawyer Scheme (which operates in most local courts), and to other Legal Aid services.
The PLS represent prisoners at parole board hearings who are either seeking parole or who have had their parole, home detention order or periodic detention order revoked. Prisoners can indicate on a form sent to them by the Parole Board whether they would like PLS, the ALS or a private lawyer to represent them at the hearing.
The PLS also coordinate an advice service to almost all of the prisons in NSW. The frequency with which the PLS is scheduled to hold the legal advice clinics varies from prison to prison, from weekly visits at the major remand centres to monthly visits at most country jails. Inmates book for an advice session with a PLS lawyer by asking their wing officer to put their name in a 'Legal Aid book' at the prison. On the day the legal advice clinic is run the inmate could be paged to the visits area to meet the attending lawyer. Appointments do not take place if the prison is in lockdown. Appointments usually run for approximately ten minutes and are in the form of 'minor assistance' (less than one hour's work). The advice usually concerns inmates' current criminal proceedings, but can also be about other legal problems. If the inmate requests assistance with something beyond the service's scope, the PLS will try and refer them on to another section of Legal Aid or a community legal centre (CLC).
Every inmate at a prison faces or has faced a criminal law issue. Not surprisingly, many of our inmate interviewees sought the assistance of the PLS visiting legal advice service and many of the concerns they and other interviewees raised pertained to this service. The issues raised by interviewees specifically in relation to the PLS visiting legal advice service included:
Legal representatives: Legal Aid, ALS and private solicitors
After arrest, police may allow inmates a telephone call to contact a lawyer. However, the process for obtaining representation from Legal Aid typically occurs when a person is arrested and they appear in court for their bail hearing. Unless they have secured a private solicitor, a defendant may see the Court Duty Solicitor35 (a service provided by Legal Aid) to represent them at their bail hearing at court. This may involve a short visit by the lawyer to the inmate as he or she is held in the cells at the court. They may also apply, through the Duty Solicitor, for a Legal Aid solicitor to represent them in their criminal matter. Alternatively, an inmate may make this application in the correctional centre through the PLS visiting legal advice service, or by calling Legal Aid themselves (see below 'Contacting legal representatives from prison'). After making an application for Legal Aid, if successful, an inmate will be appointed a Legal Aid solicitor who will contact the inmate by post. Alternatively, an inmate may find his or her own legal representative who may apply for a grant of Legal Aid. It is also possible for an unrepresented inmate to attend court for the hearing for their criminal matter and use the services of the Duty Solicitor at court for that day.
If an Aboriginal or Torres Strait Islander person comes into custody, police must, by law, contact the ALS on their behalf (Manager, Aboriginal Legal Service). The ALS has a dedicated 24-hour telephone custody notification service and once contacted, the ALS lawyer will give legal advice and will ask some basic questions about safety and family contacts (personal communication (email), Policy officer, ALS). At court, there may be an ALS lawyer who, on list days, can provide representation to Aboriginal people. The presence of an ALS solicitor will depend upon the business of the court (e.g., how busy the court is, the number of Aboriginal defendants appearing before that court) and resources. Aboriginal defendants can also approach the Legal Aid duty lawyers for assistance if no ALS lawyer is available. ALS lawyers and field staff36 regularly visit prisons and assist Aboriginal inmates whether they are ALS clients or not.
Inmates may also fund their own solicitor. It appeared that most inmates in our sample who chose to have private representation selected their solicitor through either previous contact with that lawyer, the recommendation from another solicitor they had contact with but who may not have had the expertise they require, recommendations from other inmates or by asking family or friends to find a lawyer. DCS staff may also give inmates access to a telephone book for this purpose, but according to our interviews with DCS staff, they do not give referrals other than to Legal Aid.
Problems/barriers to obtaining adequate legal advice and representation
Interviews for this study raised a number of general issues in relation to obtaining advice and/or representation from lawyers whilst in prison (problems concerning contacting lawyers are covered in the section immediately following):
The Legal Aid number (amongst others) is automatically programmed into the phone cards inmates use to make all their telephone calls and are free for all inmates.38 There is also the option for inmates to have up to three other lawyers' telephone numbers programmed into their telephone system account. Calls to these other numbers are charged to DCS if the inmate is unconvicted, however convicted inmates must pay for their legal calls. In order to have a lawyer's number entered onto their card, an inmate must submit the contact details for the lawyer to DCS and a DCS officer then calls the lawyer's office to validate the number as genuine and to confirm the lawyer is representing the inmate applying to have the number put on his or her card.
A separate form must be completed to place money onto the telephone account. This process may take a few days or even a couple of weeks and must be repeated should the inmate move to another correctional centre. Women receive 15 minutes for legal calls whereas men have ten minutes. Welfare can also facilitate telephone calls from their office (NSW DCS, 2006c, s. 3.2.11) an option often used by inmates in the interim period before their numbers are programmed into their card.
An inmate is entitled to a visit by their legal practitioner in addition to their personal (family/friends) visits. Most prisons have a separate area with designated 'legal visits rooms' for legal visits and have set hours (generally seven days a week) during which legal visits may occur. The legal practitioner must hold a current practicing certificate and hold a current valid identification card, issued by the governing body of their profession, which must be shown on entry to a prison. Legal practitioners are given priority over non-legal visitors during the week when being processed for visits (NSW DCS, 2006c, s. 15.11). After a lawyer has been processed at the prison gate, the inmate is paged over the intercom or escorted to the legal visits area by an officer. An in-person legal visit may also take place in the holding cells under the court before or after an inmate appears in court.
Lawyers who have access to AVL may also make a request 48 hours ahead to see their client via AVL. Generally, it is Legal Aid lawyers who have access to this facility.
Inmates may also correspond by post with their lawyers. Letters from lawyers are required to be stamped 'legal mail' to maintain legal privilege. All other letters and parcels are opened and inspected when considered necessary. Inmates have to meet the cost of sending their post, including legal mail, although inmates without money may send two letters a week at departmental cost (NSW DCS, 2006c, s. 3.1).
Problems/barriers experienced contacting a lawyer from prison
Difficulties with contacting a legal representative whilst in prison was a common theme in our interviews with stakeholders and inmate interviewees. Many interviewees felt that making contact with legal representatives was problematic, irrespective of the method used. The problems cited by our interviewees in relation to contact with legal representatives were:
In this report, participation in legal processes extends from the time an inmate first engages with the official process of a court, tribunal or government agency, to the point of legal resolution (if there is one). Activities covered may include: going to court for a criminal matter; commencing a legal action to recover a debt (or being subject to an action); participating in conciliation for a family law property dispute; appealing a Centrelink decision to the Social Security Appeals Tribunal (SSAT); or appealing a fine in writing to the SDRO. A person may actively participate (e.g. when they are an appellant in a criminal appeal or the applicant to a divorce) or they may be the subject of a legal action against them (e.g. being a defendant in a criminal matter).
The legal process originates at different points depending on the nature of the matter. For example, the legal process begins at the time of arrest for a criminal matter; when a person lodges an application for a family law matter; or when a person sends off a written appeal to the SDRO concerning an unpaid fine. The legal process then extends to the point of resolution (e.g. when a person is sentenced in a criminal matter, when a judge hands down his or her decision in a civil or family matter or when an inmate receives a letter back from the SDRO informing them of its decision). A legal process does not include informal inquiries made to authorities about a legal process or the activities leading up to the lodgement of a form, however, these actions may form the preparatory steps that make participating in a legal process possible and are consequently part of this analysis.
The following discussion on opportunities and barriers for prisoners to participate in legal processes is divided into three parts: the initiation of legal processes; preparation for legal processes; and, participation in a hearing or legal transaction. Note that among our inmate sample, by definition all were involved in participating in a hearing as defendants in their criminal matters. However, in many cases, civil and family matters had only reached the initiation and preparation stages.
Initiation of legal processes
In order for a prisoner to participate effectively in a legal process he or she needs to be aware the process exists, know what he or she must do to become part of that process and/or signal that intention to the relevant authority. Barriers to inmates' effective participation in this initial phase of the legal process raised in our interviews include:
It also became clear from the interviews that in the situation where a process was initiated, preparation for the resolution of a legal problem may also be undermined or at least constrained by being in prison. Preparatory activities include reading briefs of evidence for criminal matters, making inquiries about the status of a matter/application, or completing courses to establish eligibility for parole. Problems reported by interviewees with respect to preparing for legal processes were:
The final stage in participating in a legal process (apart from experiencing the outcome of a decision) is the hearing or conduct of the legal transaction. This may be where the case for a complaint or restitution is argued and a resolution is negotiated/handed down. Examples include court attendance, signing contracts and parole hearings.
For inmates in this study, a major part of participating in legal processes involved attending court. According to our interview with a custodial officer at an urban prison, when an inmate is required to go to court, the court issues a warrant for them to appear on a particular day. Court warrant files are kept in the general office at the prison on the DCS Offender Integrated Management System (OIMS). Each day a court list is generated for the following day. The warrant should stipulate whether the inmate is to appear via AVL or in person. A prisoner must physically appear before the court for certain relevant criminal proceedings, such as a committal proceeding, fitness to stand trial proceeding, any trial or hearing of charges, any sentencing hearing (including a redetermination of sentence), any hearing of an appeal arising out of a trial or hearing or a person's first appearance before a court in relation to an offence (section 5BB of the 1998 (NSW)).
The process for transporting inmates to court was uniformly described by inmates and staff from all prisons. On the day of court, officers wake inmates at approximately 5.30 am and escort them to the prison's reception area where they are given their civilian clothes. Travel to court requires being transported on a truck to the court with other inmates from their own jail and, more than likely, a number of other prisons. Inmates are then held in court cells located within the court complex and are then returned to their prison mid to late evening the same day.
Increasingly, AVL is being used in place of an inmate attending certain hearings in person. In most parole hearings an inmate appears via AVL, however, the prisoner can make an application to appear in person. AVL is routinely used for preliminary criminal proceedings including bail applications, proceedings relating to the prisoners' remand, interlocutory proceedings and any arraignment on a day other than the day appointed for the trial. If AVL facilities are not available at the prison in which the inmate is usually housed, they may be transported to the nearest correctional facility that has AVL available. In the courtroom, there are a number of cameras, one on the judge, one on the lawyer and one on the public gallery (for family). In the AVL booth at the prison, the inmate sits before a number of television screens showing the different views of the courtroom. There is a telephone in the booth that the inmate can use to speak directly to their lawyer during the matter. During these calls, the AVL sound is automatically muted in the courtroom so that the lawyer and the inmate may communicate confidentially. There are also additional studios in the court building so that lawyers can speak to their client before or even after the hearing.
Inmates may also participate in 'legal transactions'. A legal transaction is an exchange or agreement undertaken according to law, such as the signing of a lease or contract. While a transaction may not be strictly a legal process, as defined above, it is a transaction that is legally binding and has legal implications. Inmates may wish to conduct legal transactions in order to be eligible for parole, or make financial arrangements for bail or business transactions.
Problems identified by interviewees with this final phase of participation in a legal process were:
Although the opportunities for obtaining legal information and representation and to participate in legal processes are technically available to prisoners, there is evidence from our interviewees that some of the consequences of imprisonment can lead to these opportunities being missed or compromised. For example, although there are prison libraries not all prisoners can access them; although lawyers visit prisons to provide advice inmates do not have long enough to receive satisfactory assistance; and, although hearings may be attended, inmates may not understand what has transpired.
What underlies barriers to inmates' access to justice? The previous section described mechanisms that aid inmates to address their legal needs and the barriers that inmates encountered in using them. However, it is not sufficient to simply say that certain opportunities for addressing such legal needs had failed to occur, or had occurred in an unsatisfactory way. Rather, we need to investigate where the points of weakness occur in prisoners' pursuit of justice as prisoners, and further explore how they come to be weakened. From such an analysis it will then be possible to propose how the pathways through which prisoners address their legal needs may be strengthened. The following four chapters will analyse in depth the factors that appear to underlie the barriers to inmates addressing their legal needs and accessing justice identified in the current chapter. Briefly, the discussion will analyse the role of:
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
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.
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:
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:
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.
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:
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:
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:
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:
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.
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:
— 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
— Custodial officer, urban prison
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison
— Probation and parole officer, urban area
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:
— 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
— Mike, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison
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:
— 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
— Worker, CJSN
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'.
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
— 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
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:
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:
— 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
— 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
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:
— 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
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:
— 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
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.
— 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
— 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
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:
— Manager, Centrelink
— Financial counsellor
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:
— 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
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:
[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
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
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:
— Custodial officer, urban prison
[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
— DCS welfare officer, urban prison
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:
— 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
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:
— 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
— DCS client services officer, head office
— Homelessness worker, urban area
— Homelessness worker, urban area
… nobody wants to, for example, fess up that you can't read.
— Solicitor, ALS
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.
— Custodial officer, urban prison
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'.
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.
— DCS welfare officer, urban prison
— Legal Aid solicitor
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:
— Probation and parole officer, urban area
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
— 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
— 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
— Worker, CJSN
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison
— DCS welfare officer, urban prison
Depression and despondency
It was evident from the interviews that depression and despondency contributed to prisoners' passivity in addressing their legal and other needs:
— 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
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison
— 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
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:
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
Aggressive, not assertive, behaviour
— DCS welfare officer, urban prison
— 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
[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
— 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
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:
— SAAP worker, urban area
— Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison
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:
— DCS welfare officer, urban prison
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.
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:
— Financial counsellor
— DCS welfare officer, urban prison
— 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
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.
— Custodial manager, rural prison
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.
Chapter 5 describes the ways in which prisoners access legal information and assistance and participate in legal processes. However, interviews for this study suggest that there are a number of features of these systems, which in practice may undermine inmates' access to legal help and participate in legal processes. Broadly speaking, our analysis indicated that barriers arise from:
Systems in place to access justice
As discussed at the outset of this report, DCS aims to 'manage offenders in a safe, secure and humane manner'.42 Complex systems are in place to achieve these aims including: prison security, protection and segregation facilities, and the classification system, which classifies inmates according to their security risk and 'developmental needs'.
DCS also has systems and resources that address the welfare needs of inmates, including those that may help with the resolution of legal problems. In brief, those that facilitate (although are not dedicated to) access to legal information and assistance include: prison libraries; the 'visits' system; the telephone system; and, education and training. Prison staff, although not strictly a 'system', is also part of the wider systemic environment that supports the welfare needs of inmates, including their legal needs. Further details of these systems are contained in Chapter 5.
Legal services intersect with custodial systems in the provision of legal advice services in prisons and at courts (e.g. Legal Aid, the ALS and private lawyers). Prison inmates also contend with the legal system (various courts and tribunals) and bureaucratic systems (including the SDRO, Centrelink and DIAC) in order to resolve their legal problems.
As summarised above, formal legal information and advice services are made available to prisoner inmates. However, our analysis suggests that these limited resources are strained and accordingly undermined by the high demand placed upon them. The following section examines how the ability of inmates to access legal information, contact their lawyer or participate in a legal process may be constrained by limits on the resourcing of:
Both Legal Aid and the ALS are important providers of legal advice and representation to NSW prisoners. Our interviews indicated, however, that the demand placed on Legal Aid and ALS lawyers both at court and when they visited prisons often outweighed their capacity to meet this demand.
PLS visiting legal advice service
Once in custody at a remand or sentenced jail, inmates may access the PLS (Prisoners Legal Service) legal advice service provided in all prisons.43 The ALS also runs regular field officer advice and support services to Aboriginal prison inmates.44 Many interviewees for this study commented on the high number of inmates that lawyers from both Legal Aid and the ALS would typically have to see. Often this meant that the time available for each inmate was brief:
With high caseloads, opportunities for lawyers to address inmate's legal needs beyond their criminal matters, such as to answer a question about a debt problem were also reduced. As one solicitor commented:
Legal Aid: rural areas
Inmates are able to obtain a grant of Legal Aid to secure representation from a private lawyer or from a Legal Aid solicitor. However, our interviews suggested that limited numbers of solicitors were available to conduct Legal Aid work for inmates in regional correctional centres. This is illustrated by the following quote:
Legal Aid: duty lawyers at court
As alluded to above, an inmate may not get to speak to a lawyer or ALS before appearing in court. Consequently, the first lawyer they may get to speak to is the Legal Aid duty solicitor45 who is at the court on the day of their hearing (e.g. for their bail hearing or concerning the matters for which they are being incarcerated). Our interviews suggest that, as with the PLS in prison, the high demand for the services of the duty lawyers at court has impacted on the amount of time they have to provide advice to clients before their matter was heard. Typical of the many comments made to this effect was:
Legal assistance on civil matters
A final area that arose in our interviews in relation to legal service resources was an apparent imbalance in the availability and integration of legal assistance for civil matters and those for criminal charges. It is clear from the descriptions given in previous chapters that prisons, as an integral part of the criminal justice system, have a range of mechanisms that serve the resolution of inmates' criminal matters. However, in the case of civil matters it appears that access to assistance and the ability to participate in legal processes is more difficult from prison. One reason for this is an apparent lack of ready access to legal advice on civil issues:
[WHY IS THAT? IS THAT TECHNICALLY OK?]
Well, because, I would suspect that if you looked at it, that it's the inmate has to pay the cost of the, of the department's transfer to that court. … So if there's any personal injury, it has to come out of the pocket of the inmate.
DCS custodial and welfare staff play a central role in assisting inmates when they have a legal problem. For a detailed discussion concerning this role, see Chapter 8. As well as taking on case management roles with inmates, custodial officers carry out a variety of administrative functions, all of which facilitate inmates' access to legal assistance. These functions include processing mail, escorting inmates to legal interviews, providing inmates with forms and information about appealing, and writing their names down in appointment books for legal interviews.
Each government-run prison has one or more welfare officers who provide assistance with personal issues, such as child access, housing, debt management and advocacy on behalf of the inmate. Welfare officers also perform a range of other tasks including assisting inmates with forms, explaining documents and processes, facilitating telephone calls with lawyers and liaising between the inmate and government departments on matters associated with their legal issues.
However, interviews for this study suggested that the capacity of officers to perform these tasks can be undermined by available resources not always matching the high demand. Our analysis identified a number of features of staff roles that affected inmates' pursuit of legal assistance, primarily concerning staff shortages for both custodial and welfare staff.
Custodial staff shortages
Staff shortages were an issue raised by prisoners and stakeholders when identifying the barriers for prisoners to access assistance with their legal problems. There appeared to be two major implications of DCS staff shortages for inmates needing assistance with legal problems: increased lockdowns and the reallocation of staff.
Lockdowns (including locking inmates in their cells overnight) are part of the daily routine of NSW correctional centres. However, if staff shortages are sufficiently severe, the prison may be put into lockdown (over and above regular lockdowns). Inmates are then restricted in their movement around the prison and are effectively prohibited from leaving their cells until the lockdown ceases.
Yes. And that's due to staff shortages. ... we might lock down if we've got a hospital escort. Like an inmate has to go out for emergency. So they might try and take officers from somewhere, so they'll have to lock down a Unit to take officers from there, to take someone to hospital.
In 2004 DCS introduced a program of correctional workplace reform called The Way Forward which aimed 'to achieve safe and effective correctional centre management and substantially improve operational cost efficiency' (NSW DCS, 2004b, p. 2; also NSW DCS, 2004c). Changes to staffing arrangements were a key aspect of this policy. There was some suggestion in our interviews that aspects of the new staffing arrangements reduced visiting hours, for legal visits:
OV2: Legal visits went through till 6 pm I think.
OV1: Yeah. Now when The Way Forward was introduced, they suddenly locked the prisoners down at lunchtime.
Reallocation of staff
Staff shortages also appeared to result in prisons having to reallocate staff from one task to another. In the main, officers were 'stripped' from certain administrative positions to fill key security positions when staff shortages occurred. In our study, examples were given of positions being stripped from functions such as the mail room, officers who place numbers on prisoners' phone cards and library escorts, which in turn affected inmates' access to justice. For example, the stripping of the mail sorting position delayed the delivery of mail to inmates, including legal correspondence:
Custodial officers are also responsible for confirming lawyers' telephone numbers, in order that inmates can call their solicitors.47 This second example describes the impact of officers being reallocated from the position, which processes numbers onto phone cards:
When there was a shortage of staff, positions that enable the prison library to be open may similarly be reallocated:
[SO WHAT MIGHT THAT MEAN? THAT THEY MISS OUT ON THEIR APPOINTMENT?]
It's a possibility. If there are five officers in a unit; if two out of that, or even one is out of that unit doing something else, another officer can't leave that unit and leave three staff in there by themselves. That's not allowed. That's dangerous. So they'll have to wait until this other officer comes back, and who knows what they're doing or how long they're going to be.
Shortage of welfare officers
As will be described in Chapter 8, welfare staff provides a key link to government and legal services. However, our research has suggested that, in most jails, the number of welfare officers available does not meet the demand for their services. Unfortunately, it is not possible to formally examine the ratio of welfare staff to inmates as annual statistics are given only for all operational staff, including court correctional officers. However, as the data given here and in Chapter 8 suggest, welfare officers are often extremely busy and consequently inmates may not be able to access them in a timely fashion. The challenge this presents was described by DCS staff and inmates:
It appears from the data given above, when a shortage of custodial staff occurs, that positions which facilitate access to legal assistance and support are among the first to be compromised. Specifically, tasks that may impact on the pathways inmates use to address their legal needs, such as processing lawyers' numbers onto phone cards, or processing mail (including legal mail) may be stripped of their human resources and reallocated to security functions. When staff shortages become critical, the whole centre may be locked down, further restricting the capacity of inmates to engage with the outside world. In addition, our interviews suggested that, in many jails, welfare officers are in short supply and consequently challenged in their capacity to assist all their inmate clients.
There is a range of facilities in correctional centres that inmates can use to access legal information and advice. These include electronic equipment such as computers and video players, the library and the prison telephone system. Our interviewees suggested that significant shortages of these facilities impacts on inmates' access to justice.
Computers, electronic equipment and libraries
Prisons have education departments that in addition to running courses for inmates also have computers (but no internet connection) available for use by prisoners for educational and legal information purposes. For example, inmates can use computers in the Education unit to read briefs which are sent to them on CD-ROM. However, interviews for this study suggest that there is a significant shortage of working computers in these Education units.
Interviews with inmates and DCS workers from different prisons also suggested that the legal materials in many of the prison libraries were often very limited, outdated, or not available because they have gone missing:49
Prisons are designed to be keep inmates largely separated from the outside world. Walls, fences and surveillance provide the physical barriers while bans on mobile phones and access to the internet present another layer of security. The DCS standard operating procedures stipulate that computers used by inmates 'must not contain, be connected to, or have the facility to be connected to any internal or external communications device (i.e. modems, modem card or modem chip)' (NSW DCS, 2006c, s. 220.127.116.11(c)). In practice, this means that there is no internet connection to any computers within the parts of the jails accessible by inmates, including those computers used by welfare and education staff. Accordingly, neither inmates nor the DCS workers who may be assisting them to find legal information can access the web from within the jails:
The availability of telephones to maintain both social and legal connections is a key issue for inmates. Each correctional centre has a certain number of telephones for inmates available at set times throughout the day.51 Some inmates and workers reported that there were often such large numbers of inmates trying to access the telephones during those times that, as a result, it was difficult for them to make a call when they wanted or needed to:
Another resource that may affect inmates' access to justice is the provision of educational courses and training within prisons. A few inmates from a rural prison reported missing out on the opportunity to undertake certain courses due to limited places:
In addition to the various practical barriers to inmates accessing legal assistance which arise from the nature of imprisonment, formal provision of systemic resources that falls short of the demand placed upon them can further disrupt access to justice for inmates. It is apparent from the data reported here that there are significant resource constraints on both DCS and some public legal services, which in turn affect the capacity of inmates to access legal information and legal assistance from within prison.
Our interviewees identified staffing levels and facilities as systemic resources where demand outstripped supply. For example, the capacity of welfare officers is stretched by the sheer volume and complex needs of their inmate clients. Similarly, the availability of custodial officers to undertake functions which facilitate inmates' access to justice (e.g. to provide escorts to the library or legal visits, to ensure mail is delivered or that telephone numbers are made accessible to inmates) is sensitive to staff shortages: when staff numbers are low, security functions take precedence and consequently these tasks may be delayed or abandoned.
Our interviewees also indicated that the demand for Legal Aid and ALS services outstripped supply, resulting in less time being available for legal advice to be given to individual inmates both at prison and at court. In some circumstances, inmates were not always able to see a lawyer before they went to court because of such shortages. Further, the demand on the resources of such legal services undermined the perception amongst inmates about the quality and accessibility of these services.
In terms of facilities, a shortage of computers to read CD-ROMs and outdated library facilities at some correctional centres can prevent inmates from accessing legal information. Further, inmates in one particular correctional centre felt that limited places in certain education courses were preventing them from obtaining parole. The lack of access to the internet and a perceived shortage of telephones were also felt to compromise inmates' ability to marshal information for their legal matters and communicate effectively with their legal advisers (inter alia). Consequently, shortfalls in resources that support prison inmates in addressing their legal matters within the broader systemic environment may act as a hindrance to gaining legal information and assistance, and effectively participating in the legal process.
The discussion above draws attention to aspects of the broader systemic environment where there is an apparent shortfall in resources. This shortfall consequently affects prisoners' capacity to address their legal needs. Our analysis also suggests that the processes that operate within the systemic environment also shape the success or otherwise of inmates' access to justice. The processes most commonly mentioned by interviewees in this study are grouped under the following headings:
In the previous section, the issue of the availability of telephones was raised. It would seem that in the opinion of some interviewees, availability was a matter of numbers — too few telephones for too many inmates. Whether it is only, partly or even at all, sheer physical numbers of telephones should be weighed against how the telephones that are there are accessed. Interviewees for this study highlighted a number of other aspects of the prison telephone system and its use that impact on their role in inmates' pursuit of assistance with their legal problems. These were:
Time restrictions operate on the length of calls that can be made by inmates. Male inmates receive 10 minutes for legal telephone calls and six minutes for personal telephone calls and female inmates receive 15 minutes for legal telephone calls and ten minutes for personal calls. The purpose of placing time restrictions is to make the telephone system more accessible to all inmates:
Another challenge for inmates seeking to consult with their lawyers by telephone raised in our study was that an inmate may have to go through switchboards, receptionists or automated telephone systems before being put onto the person who can assist them. This further curtails the already limited time available to inmates:
Telephone contact with government and other agencies
Telephone contact with government departments also brought with it, according to our interviews, its own set of issues. Our data indicated that inmates had complications telephoning departments such as Centrelink, the DOH, DIAC and SDRO to address outstanding legal problems. To begin with, some inmates reported difficulties putting certain departmental numbers on their phone cards:
Interviewees also highlighted how the time restrictions on telephone use in prisons clashed with the 'waiting on hold' call centre system adopted by government departments:
A number of lawyers we interviewed said that they took account of the limited time inmates had to speak with them, by taking their calls as directly as possible and by getting 'straight to the point' (Community Referral Scheme, Law Society; LawAccess). To facilitate a quicker response to prisoners' calls, all telephone calls made by prison inmates should be announced to the recipient by the prison telephone system before the prisoner is put through. Such a facility cues the legal or other service to the fact that the caller is an inmate and consequently has a very limited amount of time to spend on the call.
The capacity for lawyers to routinely receive messages and return calls to their clients in prison was raised by both stakeholders and inmates as a potential strategy to increase inmate access to legal advice:
Classification, segregation and access to legal help
The primary purpose of prisoner classification is to maintain the security of the prison (Crimes (Administration of Sentences)(Correctional Centre Routine) Regulation 1995 (NSW), clause 10). An inmate's classification reflects their risk of escape, whether they are a danger to other inmates and staff or whether they are at risk of harm from other inmates. Accordingly, consistent with their higher security rating, medium and maximum security inmates have greater restrictions on their movement within correctional centres compared with inmates classified as minimum security. Inmates and DCS workers in this study provided examples of how these restrictions can affect access to justice on a day-to-day basis. In maximum security correctional centres, inmates have to be escorted by custodial officers when they move around the prison grounds and are locked in their cells for longer periods during the day. As one inmate noted:
[WHY IS IT LIMITED IN PROTECTION?]
Because … you didn't have access to a proper library or things like this.
Remand: post-arrest pre-reception
Two features define the early period of remand. The first is the fact that all remandees have criminal matters pending along with often acute civil issues relating to their sudden incarceration, including family law issues, particularly the placement of and access to children. The second is that, generally speaking, new remandees face more restrictions on their liberties than other prisoners, and that their access to legal help is correspondingly reduced. The interplay of these two factors and their consequences for access to justice are discussed below.
As noted in Chapter 5, when a person is first arrested, they may be detained in, and moved between, the cells at a police station, the cells at a police/court cell complex staffed by DCS (such as Surry Hills or Parramatta), and in the holding cells at court. A number of interviewees reported that inmates found it particularly difficult to contact a lawyer by telephone from the police or court cells, prior to going to court. Difficulties associated with contacting a lawyer at this stage of incarceration were stressed as a key concern to a number of inmates. Having consulted with other inmates prior to her interview with the research team, Noeline, a longer term inmate said:
Compounding these issues are the large numbers of inmates being held in police cells, whilst they await space in the remand centres. According to a DCS manager responsible for reception screening and induction at one prison, offenders should not be kept in court or police cells for more than 72 hours. However, it appears that, due to increasing prison population and corresponding overcrowding in the prison system generally (see the data provided in Chapter 2), offenders are staying in police cells for much longer periods beyond this limit:
Inmates to be held on remand are transported to a correctional centre with a remand facility and detained in the reception unit of the prison until they are classified. A major task for DCS at this early stage of incarceration is to undertake a risk assessment of new inmates, particularly in relation to their mental and physical health. Inmates are interviewed by a nurse to ascertain any health needs and by Inmate Development Services staff to ascertain any immediate crisis. New inmates are kept separately from the rest of the prison population until they sit before the case management team, which determines their classification. Interviewees for this study suggested that this isolation from the rest of the prison effectively prevents inmates from accessing legal information and legal advice. One inmate described the experience of first arriving at a remand centre:
Finally, the difficulties raised above are not confined with inmates trying to deal with their criminal matter. As discussed in Chapter 4, the sudden interruption of incarceration can generate specific civil and family law issues, particularly in relation to child custody, housing and employment/business matters. For example, one remandee reported the difficulties he had in contacting his workplace when he was arrested to inform them he was in prison:
As inmates move into the main remand jails or wings, some of the initial difficulties they faced in accessing legal help improve. Once in the main population, inmates can receive visits from their lawyers, access welfare and education officers and, once set up, have use of their phone cards. However one practice that our interviewees suggest continues to affect inmates access to justice, is the frequent movement of inmates from jail to jail and wing to wing within the prison system.
Movement of inmates
In this study inmates were reported to be regularly moved around in the correctional system: within centres, from prison to prison, and between prisons and the police or court cells. It became apparent that the constant movement of inmates inevitably impacted on the provision of programs and services to inmates, whether it was legal help, education or health services. Indeed Justice Health reported that:
Transfers between prisons
Finally, the movement of prisoners to remote locations adds to their expenses in contacting their legal advisers. Whilst remand inmates can make calls to private or Legal Aid solicitors at DCS's expense, convicted prisoners must pay for their own calls to private lawyers and to many of the service agencies and departments:
Transit from prison to court
A second facet of inmate movement is the travel from jail to court. Inmates may need to attend court directly from their prison, or may be transported in a prison truck to the prison closest to the court they are going to so that they can attend court from there. Our interviewees spoke strongly about inmates' dislike for travelling conditions in the trucks:
Reduction in movement through the use of AVL
Several interviewees suggested that AVL may be an effective way of addressing the impact of court attendance and transfers between prisons. The Legal Aid Commission uses audio visual conferencing to communicate with clients. In 2004/2005, 15 Legal Aid offices had audio visual facilities and AVL was used 3 691 times to communicate with clients (Legal Aid NSW, 2006c, p. 43). One DCS worker we interviewed argued that:
A final systemic process that impacted on inmates' access to legal information and assistance according to our research was lockdown. Lockdown was discussed earlier in this chapter as a result of staff shortages. However, lockdown is also part of the daily routine of prisons and consequently its impact can be independent of any staffing problems.
The hours prisoners are allowed out of their cells vary from prison to prison, and between parts of prisons, depending upon the classification of the prison or wing. For example, at one maximum security prison inmates are let out of their cells at 8.30am, returning for an hour between midday and 1pm. They are then let out again until 3.30pm, at which time they are locked in their cells for the night (DCS welfare officers, urban prison). This is a fairly standard regime for a maximum security facility. The number of hours spent outside of a cell can be significantly less for those in protective or segregated custody, who remain in their cells other than when allowed out for short periods of exercise or for legal visits (NSW DCS, 2005a, p. 14). The actual numbers of hours inmates with different prisoner classifications spend out of cells are detailed in Chapter 2. Out-of-cell time has declined in NSW since 2000/01, and NSW has the lowest average number of out-of-cells hours for both 'open' and 'secure' custody in the country (SCRGSP, 2007, Table 7A.18). Further, the average number of out-of-cell hours for some inmates is lower than it was at the time of the Nagle report (Nagle, 1978, p. 498). The effect of routine lockdown on legal visits was described by one lawyer:
Chapter 1 argued that at law, prisoners are not denied access to justice. Further, through the values and principles that guide the department, DCS is in fact committed to supporting prisoners' access to legal resources and assistance. Our research has identified several examples within the formal custodial setting of where this has been achieved. For example, DCS has processes in place to take inmates to court for their criminal matter and provides accommodation and access for visits by lawyers. However, our analysis has identified a number of features of the formal systemic environment that disrupt or impede the ability of inmates to address their legal needs.
Firstly, it appears that resources in the form of staff and facilities that support access to legal information and assistance often fall short of the demands placed upon them. In some cases this seemed to be a matter of pure numbers (e.g. only one lawyer for a large number of inmates) and in other cases, there was competition for resources in a system where a number of conflicting priorities operated (e.g. DCS officers are stripped from tasks that underpin access to legal assistance to supply security roles and assistance with criminal matters is more readily accessible than assistance with civil law matters). For inmates, these barriers may mean that they do not have the best chance to receive and utilise timely advice concerning their legal matters.
Secondly, some processes operating in this systemic environment may not be optimal in terms of inmates' capacity to meet their legal needs. For example, sometimes there appeared to be conflict between processes emanating from one part of the prison system (e.g. classification, segregation and lockdown) with those processes geared towards helping inmates obtain assistance with their legal problems (e.g. use of telephones, organising legal visits and using the prison library) resulting in delay or prevention of access to legal assistance. Consequently, whilst there are systems in place to assist inmates with their legal needs, practically there are certain groups or times that that access cannot be exploited. As with the allocation of resources, there appeared to be an element of prioritising those processes that ensured the security aspects of inmate detention over those which support welfare needs, including legal needs. Unfortunately, restrictions in access to legal help sometimes occurred at crucial junctures in an inmate's course of action, such as when they first come into custody.
Thirdly, from the data presented here, there also appeared to be tensions between the procedures of external agencies (e.g. solicitors, barristers and courts) and prison routines (e.g. movement of prisoners to other prisons, transit to court and out-of-cell hours) that rendered co-ordination of tasks aimed at resolving legal issues such as telephone calls, court appearances and legal visits difficult or even impossible. Inmates described not being able to be in direct contact with their legal advisers because the times they were out of their cells clashed with the times their lawyers could answer telephone calls or be present at the prison. Further, the telephone system designed for inmate use is unidirectional so that lawyers cannot return inmates' calls or easily leave messages. If direct contact between an inmate and a lawyer was made, the conversation may be curtailed because of time restrictions on inmate calls and/or lack of privacy. The AVL system was forwarded by a number of interviewees as a way to improve contact between lawyers and their clients/inmates with the court system, although as noted in Chapter 6 this system is not suitable for all inmates. Other initiatives, such as the recent implementation of a Centrelink outreach service, were also suggested as ways of ameliorating these tensions.
In our discussion of the systemic environment, reference has inevitably been made to players within these systems. Indeed, we have not just spoken about lawyers as key providers of legal help, but have noted how shortages of custodial staff or welfare officers can also affect prisoners' access to justice. This leads us to a further area of analysis and the next chapter of this report: namely the pathways used or the intermediaries that inmates depend upon to access legal assistance and to participate in legal processes. As will be discussed in Chapter 8, prisoners' dependence on intermediaries arise from a number of factors, including the constraints described in this chapter that are imposed by the systems within which inmates must live and function.
Why are intermediaries necessary?
According to the data we collected for this study, there are three main reasons why many processes that, in other circumstances would not require intermediaries, do in the case of prisoners. The first and most obvious reason is the very nature of imprisonment. Prison, by definition, physically prevents the person from freely accessing the world outside the prison precinct. Consequently, inmates cannot autonomously, for example, retrieve their property from their leased house, visit a lawyer, or go into a Centrelink office. Restrictions also exist on movement within prisons whereby certain inmates may not have direct access to particular areas (such as the prison library) or may do so only at certain times. Accordingly, in these cases, an intermediary is used simply because the inmate cannot physically be present.
Secondly, prison inmates may also need to go through a third party because it is part of a procedure set up by an agency, most commonly DCS. For example, as outlined earlier in Chapter 5, the procedure for having a legal visit with the PLS visiting legal advice service requires that a DCS officer place the inmate's name (at the inmate's request) in a book. The inmate is then obliged to use an intermediary to take one step closer to obtaining legal advice because that is how that particular process is structured within the prison setting.
Thirdly, prison inmates may depend on someone else to carry out tasks related to their legal needs because they lack, or feel they lack, the requisite skill(s) themselves. As demonstrated by the list of legal issues faced by inmates given in Chapter 4, prisoners can have substantial and complex legal problems so that understanding the documents, processes and consequences associated with their legal matters is not always straightforward. Chapter 6 also identified that prisoners' ability to understand legal and administrative documents and processes may be compromised by cognitive impairment, poor language proficiency, limited education and/or illiteracy. Further, legal knowledge is highly specialised and complex and even people without a definable disability (but who are not legally trained) may have difficulty fully comprehending this type of information (John Howard, Society of Canada, 1996, Part II). Consequently, inmates may approach their peers, their lawyer, correctional officers, or other non-legally trained staff to assist them. Accordingly, intermediaries may become a necessary part of inmates' attempts to address their legal issues, because legal processes and documents may be beyond (for whatever reason) their own comprehension.
Who are intermediaries and what do they do?
The following quotes give an indication of the range of people who function as intermediaries and the tasks they perform in assisting inmates with their legal issues:
1. Custodial officers:
Well, they would talk to, generally the education staff. The education staff would ask what the query was. They would go to the intranet site, click on Forms. Fill out the form for the person. That would then go through as an email to MRRC. The people at MRRC look at it. Produce whatever information it is they have requested and depending on the urgency and what it is, they would either fax it or post it to the education staff and they would give it to the inmate. So, it is mediated through staff.
According to our data, many people who come into contact with inmates and ex-inmates through their jobs perform an intermediary role in inmates' pursuit of legal assistance. Some or all of the tasks they perform as an intermediary may or may not be a part of their official role. 'Professional' intermediaries can be further divided into DCS custodial staff, DCS non-custodial staff and non-DCS workers located either in prison or off-site.
DCS custodial staff
Custodial staff who act as intermediaries include Correctional Officers, Case Officers, Wing Officers and Area Managers. This distinguishes them from non-custodial staff (discussed in greater detail below), which are not responsible for the security of the prison.54 Staff in these positions have varying degrees of seniority and contact with inmates (for example, the area manager has an office outside the wing but will still have in-person contact with inmates whereas wing officers have continuous contacts with inmates in their wing). The current position description for a correctional officer indicates that all have a common responsibility for the supervision, security and safety of inmates and staff (NSW DCS, 2007). Officers may also be involved in inmate 'case management' (see Glossary for definition and 'Prison staffing' in Chapter 2).
Although assisting prisoners with legal problems is not a specifically designated task of custodial officers, it became clear in our interviews that these workers performed many functions along inmates' pathways to legal assistance. According to our interviewees, the types of tasks undertaken by custodial staff to facilitate legal assistance included: processing mail (including legal mail); contacting lawyers to be placed onto inmates' phone cards; writing inmates' names in the Legal Aid book; supplying application forms for Legal Aid; paging inmates to Legal Aid appointments; arranging telephone calls to inmates' lawyers when phone cards are not yet operational; giving inmates information about when they are due in court; retrieving legal paperwork from property storage; supplying bail and other application forms; making bail calls;55 making referrals to other DCS staff (such as parole and welfare) regarding legal problems; assisting inmates in filling out legal and administrative forms; assisting inmates to understand legal documents or orders; checking for outstanding warrants; and documenting and investigating complaints. This rather extensive list demonstrates that custodial staff are integral to the pathways inmates use to pursue criminal, civil and family law matters.
The degree to which any one role or individual provides these types of assistance varies across people and correctional centres. However, as the following quotes illustrate, they are undoubtedly part of the day-to-day undertakings of custodial staff.
The second group of 'professional' intermediaries are those DCS workers who do not have custodial duties. This would include: welfare officers, health and allied health professionals, prison reception and screening staff, probation and parole officers, education staff, library staff, Throughcare specialists, and Indigenous support officers.
As with the custodial staff, non-custodial DCS staff perform a range of tasks that make them intermediaries for inmates seeking legal assistance. Indeed it appeared (as will be discussed in detail later in this chapter) that there was a significant degree of overlap in the tasks performed by this group with those performed by custodial officers, including assisting inmates with forms and understanding legal documents and processes, and facilitating telephone calls with lawyers. These workers, however, and especially welfare officers, also performed a range of other 'intermediary' tasks including: liaising between the inmate and government departments such as DOH, DOCS, CSA, Centrelink, SDRO, DIAC and non-government organisations such as the RSPCA, crisis accommodation services, and interpreter services on matters associated with their legal issues. Librarians also process inmates' legal information requests (see Chapter 5), which are often related to the relevant legislation and case law.
Again, the degree to which any one role or individual provides these types of assistance varies across people and correctional centres. As mentioned earlier, one prison in our sample did not have a dedicated welfare position – instead the role was assigned to custodial officers. However, the breadth and frequency with which non-custodial staff in other jails deal with inmates' legal issues is apparent in the following quotes:
Many of the professionals who perform intermediate roles helping inmates address their legal needs, were not directly employed by DCS, but were from other government departments or non-government agencies. Some are situated on-site at the prison for at least part of the time (such as chaplains and official visitors) and others are located elsewhere. The government departments from which inmates obtain assistance with their legal problems include DOH, DOCS, CSA, Centrelink and SDRO. Examples of the non-government agencies include chaplains, Prisoners Aid Association, CRC, Shine for Kids, homelessness and other welfare services.
Our interviews indicated that non-DCS staff also may facilitate calls that inmates cannot make with their own phone cards and help with form completion. Other intermediary tasks associated with inmates' legal needs performed by non-DCS staff described by our interviewees include: collecting and storing personal belongings from rental accommodation, conducting financial transactions on behalf of inmates, helping parolees meet their parole obligations, supporting inmates at hearings, advocating on behalf of inmates with officers, putting ex-inmates in contact with legal services, supporting access to children, and writing letters in support of parole applications. The following excerpts again reflect the wide range of activities covered by this group of intermediaries:
Personal intermediaries form the other major cluster of people who mediate between inmates and their attempts to address their legal needs. Two major sub-groups comprise the personal intermediaries group, namely: other inmates, friends or family. Although clearly under no official obligation to assist inmates, these people emerged as significant participants in inmates' pathways to legal assistance.
Despite being in the same environment and subject to the same strictures as inmates needing help, inmate peers were cited by our interviewees as frequently used means of reaching or obtaining assistance with legal issues. In general this took the form of advice and information. Inmates sought information, advice and assistance from other inmates about: sentencing, prison processes, appeals, lawyers, government processes, court processes, reading legal documents, writing letters, and assisting with library services. A prison may also have an Inmate Development Committee (IDC) comprised of inmate delegates who advocate on behalf of inmates within the prison on a range of matters which may include internal administrative issues.56 The following quotes are only a small sample of instances inmates recounted in which they had sought the assistance of their fellow inmates:
Sometimes from other inmates … there's a group of us that are always in and out and we look at other cases, other girls that have gotten sentenced you know. Like for my crime in particular I looked at other girls that are charged with it and I [ask], 'How did you go about it?'
Friends and family
A final group of intermediaries sourced through personal connections were friends and family. In obvious contrast to inmate peers, these people usually acted as a go-between the outside world and the inmates. Often inmates would receive advice, information or direct assistance from a friend or family member who had professional knowledge on a certain issue but who was assisting in an unofficial capacity. Friends and families acted as intermediaries on inmates' legal issues through: finding, securing, contacting and sometimes paying lawyers; undertaking legal transactions such as signing leases, continuing businesses, and paying outstanding bills or fines; acting under a power of attorney; contacting agencies to cancel or suspend services; and looking after children and pets. The following quotes demonstrate the range of tasks family and friends took on, on behalf of inmates.
I just send a friend of mine to go to a post office and buy it, costs $18. And then she sent it in Express Post from the post office.
How do intermediaries affect inmates addressing legal needs?
There was no doubt that having somebody to act on a prisoner's behalf, especially with tasks that occur outside of prison, was greatly valued by the inmates. The following quote is typical of how 'lucky' people felt to have others to call upon:
Identification of appropriate intermediaries and pathways to legal assistance
As the observations below indicate, one of the first issues confronting inmates when needing legal information and advice was how, once in prison, they were to obtain it. It seems that although it may be clear to the inmate that they need to go through a third party, there appeared to be a significant degree of confusion about who the correct third party should be. The following were typical descriptions of the difficulties inmates experienced in pursuing legal issues:
No, 'cause I haven't got a clue who to call or what to do, all that sort of stuff. I mean, they don't tell you anything in this place. Just, what things you can access or, you know, how you go about doing things.
In general, however, there were two major elements which contributed to difficulties in identifying appropriate intermediaries: lack of information about pathways to legal assistance and a fragmentation of responsibility.
Lack of information about pathways to legal assistance
The first issue that seemed to emerge from the talk of people's confusion about where they should go for help is a claim of a lack of information about pathways to legal assistance. From our interviews with DCS staff, it does appear that some formal opportunities exist for inmates, especially those new to a facility, to find out where they may go for assistance. These include attending an induction process and being given a copy of the Inmate Handbook, a DCS publication.
[WHAT SORT OF INFORMATION HAVE YOU GOT IN MIND THERE?]
About what facilities are available inside the jail, for what reasons. If they ask for it, they get told, but if they don't ask for it, well who cares, nobody bothers.
Fragmentation of responsibility
Beyond the provision of formal procedural information about how to gain assistance with a legal issue, it appears that there are other practices that serve to confuse the pathways to legal information and advice. Note that in most cases the first link in the chain to reaching legal advice, information or participating in a legal process usually occurs within the prison, consequently much of the following discussion centres on processes occurring there. However, there were also examples of this phenomenon in other parts of the justice system that affect inmates' ability to satisfy their legal needs. These will be included where appropriate.
In addition to the dearth of formal information described above, the ability of inmates to identify an appropriate pathway or intermediary seemed to be compromised by an apparent fragmentation of responsibility as to who may be approached for assistance with a legal problem. Note the assistance sought at this stage was usually not legal advice as such, but more assistance with a referral, obtaining or lodging a form or making a telephone call. However, the importance of this contact as a first step was crucial to resolving legal issues.
No single designated contact
Fragmentation of responsibility was generated through a number of practices. Firstly, inmates could (and did) approach any number of people given a legal problem. That is, it seems in many instances there was no central or set member of staff who was approached for legal assistance, resulting in inmates approaching a range of people for assistance:
[HOW DO THEY KNOW?]
Sharing of tasks
Fragmentation of responsibility and the resulting uncertainty about who is the best intermediary may be further reinforced when tasks assigned to one group are taken on by another group, in the interests of helping the inmate. The following quotes illustrate the circumstances in which our interviewees witnessed such practices:
Lines of responsibility were further obscured by reluctance by some inmates to approach custodial officers for assistance where they are the designated contact. Accordingly in situations where custodial officers were the formal designated contact to initiate assistance with a legal issue, some inmates were still inclined to use other pathways:
Variable knowledge among staff
The final theme that that emerged when we investigated the mechanisms that contributed to the fragmentation of responsibility among interviewees was the variable knowledge among DCS staff about pathways to legal assistance. In addition to welfare staff, custodial officers were often asked for assistance with legal problems. However, the variation in confidence in dealing with these requests is apparent from the following excerpts:
Well if it's an Aboriginal inmate with family problems I'll refer him to 'X' ... the [Indigenous support officer]. And she can generally refer them to other people that they need. She has the training and the knowledge in that area for the legal side of it. If it's other inmates, I can refer them to any number of counsellors that we've got here. They've got a lot more access to people in education [who] know the legal side of it. So they could do their referrals from there. But I couldn't refer anyone. I wouldn't know how.
No … I think it's just our role in general is … if someone asks you a question … you help. But I don't think it's part of your role to do this, this and this. No, it's not. It's just a general part of your job. It's not a particular requirement or anything. It's just an informal part of our job … Because I mean if we're a face here and they need to know something, they've got to ask us; we're the only ones there. Oh well if they see a welfare officer they'd probably ask them. But if we're the only ones here of course they're going to ask us. And all my knowledge about what goes on is stuff that I've just learnt while I've been here. You know, and I've been here for nine years, so ... It's just stuff that I've picked up along the way. It's not, I don't get told any of this stuff. And I've had no experience with the legal system myself. So ... you know, it's all just stuff that I've picked up.
Consequently, one of the barriers that inmates encounter in getting legal information and advice and participating in legal processes is the fact that they need to find the right intermediary, but there can be substantial confusion about where to go. The confusion seems to have a number of contributory factors, namely occasional breakdowns in formal sources of information such as induction videos and the provision of the Inmate Handbook, the informal division of labour in principle and in practice among DCS staff and other non-DCS workers, and the variability in knowledge among those who can potentially assist. Thus, for an inmate unaccustomed to prison processes or the processes of a particular prison, knowing where to start in addressing an issue with legal implications may be unclear, inefficient and involve many dead ends.
However, even for the experienced prisoner, knowing how to obtain legal information or assistance may be compromised because there is inconsistency in how much help stakeholders can provide and who provides it: that is, the pathways may vary from prison to prison, wing to wing and day to day as knowledge and informal agreements shift with the different personnel. Yet prison necessitates that inmates go through intermediaries rather than act on their own behalf. As a consequence, they may waste systemic resources by approaching several people in the hope that one may produce the desired result, waste their own time heading down the wrong path or abandon the pursuit altogether because they simply do not know where to go to next.
Scope for discretion with assistance
A second feature of mediated pathways that functions as a barrier for inmates trying to obtain assistance with a legal problem concerned an apparent inconsistency and/or unreliability in the provision of help. The first section of this chapter clearly demonstrated that many people were extremely helpful in their roles as intermediaries, often going beyond the duties of their role to assist inmates with their legal needs. However, it was also apparent in our interviews that assistance was often characterised as discretionary. In some cases, it appeared that the inmate was at the mercy of other peoples' willingness to carry out a task or pass on a message. The first examples illustrate this in relation to custodial officers:
If they want to ring them they'll ring them. If they don't, they'll tell you, 'Yeah, couple of days, we can do it in a couple of days.'
Although many of the comments made by the interviewees in this study on this theme related to correctional officers (if for no other reason than they generally are the most convenient and likely person for inmates to approach in the first instance) the matter of the scope for discretion was not isolated to them alone. The following quote describe this issue in relation to an external agency:
Our data indicates that inmates commonly depend upon non-legally trained intermediaries to provide or link inmates with assistance with their legal issues. DCS and non-DCS workers, friends and family, and other inmates, were more often than not part of the pathways inmates took to access legal information, obtain legal advice and representation and participate in legal processes. However, there was evidence that inmates' success in pursuing legal issues though such channels pivoted on the disposition of the person acting as the intermediary. The impact of this dependence was, firstly, the inmate did not always feel they received the assistance they sought; secondly, it engendered scepticism about whether assistance would be forthcoming, particularly from custodial staff; and thirdly, contributed to the fragmentation of assistance with legal problems (discussed in the detail in the previous section). Whilst it is clear that many intermediaries provide the best help they can despite the constraints of multiple obligations and tasks, the scope for discretion in providing assistance with legal issues means that such pathways in practice are less reliable.
Delay involved in using intermediaries
Delay was another feature of inmates' dependence on intermediaries to access legal help. Many inmates and stakeholders described how the need to go through one or more intermediaries to reach legal help usually significantly prolonged the process. The following quotes illustrate this view.
Oh, it's like, you know, months, months later.
[AND WHY WAS THAT?]
It's because, by the time she drops it in and … they go through; by the time it gets to me it is three weeks you know, four weeks.
[BUT IF THEY'RE FROM ELSEWHERE?]
I have to work with the education officers, and I ring them and then they have a chat to them, so it's all a bit long winded.
In terms of impact, delays associated with the use of intermediaries may discourage some inmates from carrying out a task in relation to a legal problem.
[SO YOU PUT IN THE REQUEST AND YOU'RE STILL WAITING?]
And I'm out of here when I need to go to court.
Dependence and intermediaries
A final aspect concerning the use of intermediaries to assist with legal issues is the dependent relationship this generates between the inmate and the other person. Because inmates are often forced to use intermediaries, and the tasks performed by them are essential to accessing justice, the inmate's legal fate consequently often lies beyond their direct control:
No, not that I'm aware of anyway. Probably, she might be using my name … I wouldn't have a clue.
In this study, instances where the power conferred upon an intermediary has led to exploitation creating a barrier to justice, were raised mainly in relation to personal intermediaries: that is, with other inmates, family and friends. Tasks taken on by these intermediaries are, as demonstrated in the introductory section of this chapter, quite different from each other. Consequently, the form that the misuse of power as an intermediary took, according to our interviewees, was also different.
Assistance from other inmates
Inmates who cannot read or understand documents or processes either remain uninformed or must ask someone else to assist them. Given their segregation from the outside world, the most readily available sources of assistance are custodial staff, welfare or other civilian staff or other inmates. As discussed earlier in this chapter, inmates often relied on their peers to assist them and valued the help they received.
However, they were also aware of an inherent risk in disclosure for the inmate seeking assistance, in particular with sensitive material relating to a pending criminal case:
Consequently, whilst fellow inmates may provide an important stepping stone in the pathway to legal assistance, certain vulnerability can occur (e.g. when another inmate has access to information about the prisoner's offences, which can then be used to gain an unfair advantage). In an environment where information about other people is a valuable commodity, disclosure of sensitive legal information to intermediaries may be a risk to inmates' ability to access justice.
Assistance from friends and family
The introduction to this chapter demonstrated the frequency with which family and friends performed crucial tasks for inmates as they pursued legal assistance. There is no doubt that family support was a resource that was heavily relied upon and missed when no longer available. However, our interviewees also gave a number of examples where these personal intermediaries had taken advantage of the position inmates had entrusted to them in dealing with their legal issues or potential legal issues. In the first examples, this breach of trust occurred in the area of money:
[AND THAT WAS YOUR EXPERIENCE?]
Yeah. All your personal stuff, people just help themselves to it. Oh, he won't notice this. He won't notice that.
Quality of information
Another risk inherent in a relationship where an inmate is dependent upon an intermediary to get information or advice, relates to the quality of the advice or information relayed by this intermediary. This was clearly illustrated in the dependent relationship of some inmates on other inmates with regards to legal information and advice. Although not a formal pathway, many inmates, as mentioned previously, consult each other to obtain legal information. As indicated in Chapter 6, some inmates have extensive knowledge of criminal law processes. However, according to our interviewees, the risk is that the quality of the information is questionable:
But whilst there may be more apparently reliable sources of legal information than other inmates such as lawyers and library materials, access to these sources is, as argued previously, limited. By contrast, inmates with, at the very least their own experience at the hands of the criminal law, are readily available. It would appear perhaps that there is a continuum for access to legal information whereby availability and quality are inversely related – the most reliable sources of information are the hardest to access whilst the sources most readily available are questionable in terms of accuracy. Such a situation affords an opportunity whereby improvement of either access or quality should increase inmates' chances of obtaining legal information. This theme will be further explored in Chapter 10.
Having a third person act on an inmate's behalf, it appears, is a double-edged sword. On the one hand, they may advance immeasurably an inmate's progression towards the resolution of a legal problem. Without their help the matter may not have progressed at all. Clearly, as an informal source, personal intermediaries can readily fulfil a need which might otherwise remain unmet, when formal pathways prove problematic.
On the other hand, the dependent relationship that may be created by such assistance also carries the risk that the person will not perform the requested task, or worse, generate further problems for the inmate. In our interviews, examples were given of personal intermediaries having taken money, property and information and used them for their own gain. The lack of personal autonomy associated with imprisonment consequently may not only impede inmates' access to justice but may also create further legal problems. Additionally, concerns were raised in our interviews that depending upon the knowledge and advice of other inmates, prisoners may risk being poorly informed and/or will have expectations (based on the advising inmate's experience) that cannot be met.
It would seem that intermediaries are currently a necessary part of prisoners' ability to obtain legal advice and information and to help them participate in legal processes. This may be because the administrative procedure requires it, inmates are too isolated from the community to act independently, or the inmate feels they do not have the necessary skills to carry out a particular task, such as reading a legal document. Intermediaries may provide access to legal information, facilitate administrative processes, provide practical assistance or advocate on the person's behalf; all important aspects in addressing legal needs. However, as this chapter has argued, the dependence of inmates upon intermediaries also entails the risk of disruption to the process or for the task to occur at all.
There are a number of features of practices involving intermediaries that seem to govern their ability to facilitate an inmate's access to justice or act as a barrier. Firstly, the degree to which there is clarity about the pathways for pursuing certain matters. Although there appeared to be numerous professional intermediaries prepared to assist with tasks associated with a legal problem, inmates often expressed confusion about who was the best person to approach, particularly in the first instance, with many efforts resulting in a 'dead end'. Uncertainty was generated by a number of practices that fragmented and obscured the pathways to assistance with legal problems: lack of formal information detailing appropriate contacts; several different staff groups covering the same task, tasks designated to one group being taken up by another; and, different people within the one occupational group having varying degrees of knowledge and capacity to assist. Inmates sometimes responded to this uncertainty either by giving up the pursuit or approaching several intermediaries for the same issue simultaneously, thereby doubling up on the use of resources, and further entrenching a lack of definition concerning responsibility.
Secondly, a major issue that arose particularly in relation to custodial staff was the scope for discretion in providing assistance with legal issues. Rather than assistance to inmates always being consistent and related to need, at times it appeared to be dependent on the mood or disposition of the intermediary. This further reinforced the lack of clarity around appropriate contact points, as sometimes a staff member occupying a certain position was helpful yet another in the same position was not.
Thirdly, processes which depend on intermediaries can also delay help to a degree where opportunities for accessing justice may simply lapse. Many interviewees described apparently cumbersome processes to achieve relatively simple tasks. As a consequence, inmates would in some cases abandon help seeking because they felt it would take too long. In other cases, inmates missed an opportunity to address a legal issue or prepare effectively for a hearing. As the contingencies increased with every pair of hands a matter passed through, so did the opportunity for a breakdown or a delay to occur.
The final factor that affected the utility of intermediaries was the potential for inmates to either be exploited or unintentionally misled or misinformed, by being given incorrect or incomplete information. A sub-theme of exploitation was mainly raised as an issue where personal, as opposed to professional, intermediaries were used. For example, whilst there was no doubt that inmate peers were an easily accessible and many times preferable source of assistance with legal problems, the sensitive nature of the matters for which help was sought could sometimes place an inmate at risk of privacy breaches. In other cases, inmates were misinformed, lost money, property or had debts incurred in their name.
Consequently, whilst intermediaries perform many important tasks for inmates and sometimes provide the only means by which they can progress their legal problems, they also can be a barrier to inmates accessing justice. In some cases, the problems arising are at least in part a function of informal processes compensating for an absence or failure of more formal systems. The enforced reliance upon intermediaries by the very nature of imprisonment and/or the bureaucratic processes that govern the resolution of legal issues, places the inmate at risk of not resolving issues or feeling dissatisfied with the outcome.
Prison culture in this analysis
The culture of prisons has been the subject of academic inquiry from a diverse range of methodological and theoretical perspectives. Unfortunately, a review of this large and interesting body of work is not possible here. However, it is important to at least note the perspective from which the current discussion emerges: we have taken the view that, at the broadest level, there exists a dynamic, yet recognisable set of shared understandings that underpin social relations in prisons. These are not identical from prison to prison nor within the one prison over time. However, we have identified what we believe to be some common themes across the institutions we visited, themes that appear relevant to an analysis of prisoners' access to justice.
The particular facet of prison life that we are trying to convey in this chapter is how social relations in prison affect the way that inmates address their legal needs and gain access to justice. Our analysis indicates that the pursuit of legal assistance was affected not only by the more tangible aspects of individual capacity and the systemic environment, but also the location of this pursuit in a particular social environment. The character of that social environment is revealed through the explanations interviewees give in describing their own and others' experience of events that have legal implications and/or how they went about seeking legal assistance. The 'truth' or otherwise of these explanations and beliefs is not the central issue. Rather, we wanted to look at the logic behind those explanations to work out what was considered possible and acceptable, or what was excluded and diminished.
From the interviews undertaken for this study, there appear to be a number of aspects of prison culture that are pertinent to a discussion of prisoners' legal needs:
Us versus them
However, among the male prisoners, the division was sometimes described among our interviewees (officers and inmates) symbolically in terms of the different coloured uniforms worn by officers (blue) and inmates (green):
Whilst this oppositional code was evident in our study, we were also made aware that the solidarity between prisoners could, at times, be overstated:
What follows is a discussion of how prisoners' legal need and access to justice are shaped by social relations and in particular, the oppositional code.
Reporting to prison authorities
Several practices associated with inmates and their legal needs testify not only to the existence of the oppositional code but further ensure its capacity to affect inmates' legal needs in the prison environment. The following quotes are a couple among many that demonstrate how inmates police other inmates' behaviour with respect to reporting inmate-on-inmate violence to prison authorities, otherwise known as 'dogging':59
[OKAY, WHY WOULD THAT BE?]
Oh well, the jail attitudes are you're classed as a 'dog', that's a jail term. I hate it, I despise the word. What it pretty much means is anyone who tells on somebody, in the form of going to the law or the police, who hurts somebody else [or] who is doing criminal activity regardless if it involves the victim. Whatever circumstances, it's still telling on someone and that can cost your life in jail.
No. It's a funny thing, like when you've done a fair bit of jail, you get this thing, like they call you a dog if you dob … so I'm the same. I won't go to the cops over matters unless it's life threatening or it's with me family … I just can't bring myself to go to the coppers.
[YOU JUST DON'T DO IT?]
No. Not unless you want to go to [a protection prison].
As alluded to by our interviewee Malcolm above, because of the dangerous consequences of informing on other inmates, one solution is for the inmate to go into protective custody. In protection, inmates have a cell to themselves and only associate with other inmates on protection. However, because protective custody is understood as the refuge of people who 'dog' as well as those convicted of certain charges such as child sex offences, the negative characterisation is only strengthened:
In a similar fashion, the behaviour of custodial officers could also be seen as policing the divide between inmate and officer through legal issues, as the following quotes illustrate. The first quote shows how the division may be maintained in terms of an officer's loyalty to his peers where an inmate was being (unfairly) involved in a prison disciplinary matter:
[RIGHT. THAT WOULDN'T HAPPEN?]
No, I don't think that would happen. We may say, 'Look, he's an okay fellow, he's okay on the wings', you know, and they might let him off with a caution, but at the end of the day he's still guilty.
Seeking assistance with legal problems
From the discussion above, it is clear that informing on another inmate was considered a clear and punishable breach of a major but informal code of behaviour within the prison culture. Importantly in the context of legal assistance however, it was not only the reporting of inmate-on-inmate assault that was constituted as a betrayal of this code. It appears that the accusation of betrayal could also include speaking with officers in general.
[YOU MAKE HIM A TARGET FOR OTHER PRISONERS?]
The majority of them … Unless they're in dire need of something they will not approach an officer. They would not like to be seen talking to an officer. They're called dogs and sometimes it can be detrimental to them.
There was one final area where the motivation for not using staff for legal assistance was unclear but where there may be a cultural component operating — culture as derived through ethnicity. In some prisons, inmates are accommodated separately on the basis of cultural background:
They've got a lot more resources amongst each other.
[WHY DID YOU KEEP SILENT?]
Because I told you, I can't do anything. Because … I don't think I, I'd find the ears to hear. That's what I feel. … Maybe it's not like that. … But that's what I think. Just the first time he [a custodial officer] said to me, 'All Muslims are dirty.'
Chapter 7 already discussed how security functions are privileged over other functions either between roles or even within them. This privileging of security appears to support and even fuel this informal oppositional subculture. This was illustrated in the way assistance by welfare staff compared with assistance from custodial staff was perceived by inmates according to interviewees in this study. In short, despite coming from 'the system', non-custodial staff were seen as more appropriate and safer options for obtaining assistance (see also Chapter 8). For example:
[THAT'S INTERESTING. IN WHAT WAY?]
Well, we've had to deal with them. And if you're going to begrudge doing things for them, or if you're going to be arguing with them all the time, it makes 12 hours a hell of a long day. But if you start talking to them, finding out what they actually need and fixing their problems properly, they're not on your back all the time and there is more time to talk about sport and other things.
In summary, prisoners and custodial officers are opposites, in one cultural understanding of inmate-correctional centre staff relations. The division between these two groups is informally but intensively monitored (by both inmates and prison staff). Access to justice may be put at risk because inmates are discouraged from seeking assistance or taking action when they have been wronged (most commonly assaulted) by 'one of us' through the notion of 'dogging'. Specifically, inmates who inform on fellow prisoners to an officer are stigmatised sometimes to the point that they need to go into protective custody. There also seems to be a further ethnically based cultural theme that may distance inmates from the assistance they need. Critically, even approaching custodial staff for other forms of assistance (such as seeking legal assistance) may still be viewed with suspicion by the inmates and may incur retribution for the inmate seeking such assistance. People new to the system may inadvertently transgress this rule, as they are yet to learn of the unspoken rules of social engagement in this context. Non-custodial staff may provide a safer option for inmates in terms of seeking assistance, however, it is argued in Chapter 7 that these human resources are already over-subscribed.
Our data and previous research indicate that interactions between staff and inmates are complex. The discussion in Chapter 8, in combination with the analysis here, demonstrates that roles are neither fully defined nor stable over time and place. The destabilisation of the code is not only possible but, in the experience of the inmates, already occurs. For example, developments in the role of custodial officers as case officers and or/the inclusion of welfare tasks along with custodial work presents a challenge to the oppositional subculture. On the positive side, combination of the two roles may engender a situation whereby greater order is maintained because inmates are able to have their needs met by staff who are easily accessible. On the negative side, such a combination of roles within the one staff position may jeopardise inmate welfare, including legal issues, because of the strength of the informal oppositional code, reinforced by the privileging of security over other functions within the prison system. That is, if the only source of that support is also the source of enforcement, the question is raised as to whether welfare issues may be satisfactorily met under the present environment.
Whilst we have argued that the subculture that sets inmates in opposition to officers may hinder the provision of assistance, its destabilisation may equally leave inmates confused about how to reliably obtain help without risking their standing among the other inmates. What is clear, however, is that the allocation of tasks and roles to prison staff does not occur in a neutral or blank environment: they become part of a dynamic and powerful set of social relations which affect and are affected by those allocations.
Violence in prison
Another aspect of prison culture that we identified as affecting inmates' access to justice is the integral part violence plays in prison life. Previous research has documented the high number of physical injuries incurred by inmates in prisons, many attributable to assault (Butler & Milner, 2003, pp. 63–66). Prisoner on prisoner assault rates (including serious assault) in 2005/06, were 15.33 per 100 prisoners (SCRGSP, 2007, Table 7A.14). This extrapolates to a rate of 15 330 per 100 000. As a point of comparison, the estimated rate of recorded criminal incidents of assault (including domestic violence related assault) in the general NSW population for 2006 was 1 072.7 per 100 000 (BOCSAR, 2008). The reported rate of assault is, at least, more than 14 times higher inside prison than in the outside community. As assaults tend to be under-reported among prison inmates and the broader population, these statistics more than likely reflect an underestimate of the true rates of assaults among these populations.
A study of prisoner drug use found that among their sample of 307 male and female prisoners drawn from 22 centres in 2003, 21.4 per cent reported being assaulted by an inmate, and 9 per cent by an officer during the prison term they were currently serving (Kevin, 2005). Further, 84.2 per cent had witnessed a fight and 36.8 per cent had witnessed greater than five fights during their sentence. In a 2002 prospective study of two NSW male prisons, one-quarter of new injury presentations during the five-month study period were attributed to assault (Butler, Kariminia, Trevaathan & Bond, 2004). The authors argue, however, that:
Consistent with the research described above, our interviewees held that assaults are not necessarily reported to prison authorities, or are reported as 'accidents'.
Assaults, rapes. All that sort of stuff.
[YOU DO HEAR THOSE COMPLAINTS?]
Yeah, but … They will not make an official complaint mainly because they're in jail. The next thing is the ship [they are moved to another prison]. So they're not going to say anything.
Violence as inevitable
Among the current sample, inmates and stakeholders agreed that violence was not uncommon, although it should be noted that again it was rarely mentioned, if at all, by the female inmates. As in the previous section, it is not clear why the men and women differed in this respect as there is evidence in other research that assaults do take place (albeit not frequently) within women's prisons (Easteal, 2001). In the male prisons we visited, violence was reportedly commonplace:
[FROM OTHER INMATES ASSAULTING THEM?]
Bashings, stabbings, fellows that cut their own wrists because fellows have threatened to rape them.
No, I've had three or four fights with people, but yeah fights go on every day out here.
Violence as an solution to conflict
A number of inmates referred to a tendency towards resolving inmate conflicts between themselves rather than through formal channels. Often the resolution itself was also violent. For example:
[RIGHT, SO YOU SORT OF SORT IT YOURSELF?]
Yeah, well it's the best way. Without involving an officer … We get the chance to do it our way sometimes.
Whilst there is a strong resistance to reporting incidents of violence against inmates to prison authorities because, as discussed in the previous section, of the potential negative consequences, there is also a sense that such incidents are overlooked because they are considered to be integral to life in prison. Violence is normalised in the prison environment through the frequency of its occurrence, its positioning as a natural reaction to the conditions of prison (e.g. the proximity of a large number of people and the mixing of cultures), its trivialisation and its perceived role as an effective solution to conflict. Previous research by Bottoms (1999) (cited by Edgar et al., 2003) supports this nexus between violence, social relations (as they are understood in prison culture) and seeking redress through formal prison mechanisms:
Another feature of prison culture that appeared to run through interviewees' descriptions of inmates' capacity to access justice and address their legal needs concerned the way inmates were understood in relation to the label 'criminal'. This section will discuss how 'criminals' were defined according to our interviewees and how being a criminal related to receiving assistance with legal matters.
What makes a criminal?
It is interesting to note that not all inmates conceived of themselves as criminals, irrespective of whether they had been convicted of a criminal offence and/or whether they believed themselves to be guilty of one. In distinguishing between inmate and authentic criminals, it became apparent that merely being in jail for a criminal offence was not sufficient to constitute being a criminal according to some interviewees. To illustrate, there were a number of different indicators of criminality offered by interviewees through which the concepts of inmate and criminal were distinguished:
The significance of the conceptualisation of criminals among inmates and those who assist them flavours how inmates address legal needs and access justice. In our interviews, this seems to occur in two main ways: perceptions of worthiness to receive legal assistance and presumption of guilt.
Criminals as undeserving
Whilst some inmates drew a distinction between themselves and others on the basis of criminality, there was a sense among interviewees that many non-inmates did not appreciate that distinction. The following quotes concern perceived treatment by a range of players in the justice system and how that treatment was understood by the interviewee as a function of being an inmate/criminal. It should be stressed that these comments are the inmates' perception of their treatment rather than the expressed views of the stakeholders themselves:
Inmates, criminality and guilt
In the previous section inmates explained how their perceived status as 'undeserving criminals' affected their access to legal assistance. Presumptive guilt is another manifestation of the merging of inmate and criminal. The following comments illustrate this presumption in the context of discussions regarding wearing prison 'greens'62 for AVL hearings and what this signified about the inmate:
[WHAT DO YOU THINK THE SIGNIFICANCE OF BEING IN GREEN IS?]
Well I think, men can give a sort of subconscious psychological effect on the person who [is] judging you, you know. I mean, for me it's the same, you know. I can be in green or can be in [a] tie, it would be the same about how I feel about all my matters. But for the judge, or for anybody, when he sees you in green, you're already in the 'system'. And that is when you are already in the 'system', it's going to be harder to get out then.
They didn't care. Don't care.
[DID POLICE INVESTIGATE IT OR …]
They didn't because at that point of time they classified me as a drug dealer … so it was more or less, fair enough, you sell drugs, you use drugs.
In this section, we have argued that conceptualisations concerning being a criminal and criminality intersect with notions of guilt and inmates getting what they deserve. Inmates on certain charges, who look a certain way, who have a history of incarceration, who use drugs, or who just simply are in prison, can become marked as criminals on the basis of those characteristics. The status of 'criminal' then invokes a range of perceptions around worthiness for assistance and access to justice.
The most fundamental premise/assumption is that criminals are undeserving of help and are automatically guilty. Inmates themselves refer to this conception in order to explain their own perceived maltreatment, or to justify why they should get treated better than other inmates. This is not to say that this perception necessarily truly reflects the opinions or treatment of service providers, indeed stakeholders interviewed in this study often expressed just the opposite view. The point is rather that such thinking exists as one rationale by which inmates account for their experiences with the law and as such, may compromise inmates' access to justice because it rationalises lack of assistance and validates not pursuing legal matters.
The culture of compliance
Up to this point, the discussion of the role of culture in inmates' capacity to address their legal needs and access justice has centred on the informal culture of prison. However, our analysis suggested that the formal structure of prison also transmitted a certain culture: that of compliance. An inmate's interactions with people who can provide assistance revealed how compliant behaviour is promoted in the prison environment, in the process of addressing legal need. This section briefly examines how the culture of compliance builds on pre-existing tendencies towards passivity (see Chapter 6) and affects legal needs and access to justice.
The inmate and compliance
There was evidence among the interviews conducted for this study that some inmates may, because of the demands and deprivations of their incarceration, become institutionalised.
Past research has addressed the issue of the effect of incarceration on inmates' behaviour patterns. Goodstein (1979) made an important distinction between 'prisonization' (referred to earlier in this chapter) and 'institutionalization' in her study on inmate adjustment to community life. Prisonisation denotes the degree to which the oppositional culture characterised by an active resistance to formal prison culture, is adopted by an inmate. Institutionalisation, on the other hand, arises out of the experience of prison as an institution that contains '… a number of attributes which strip inmates of individual identity – regimentation, lack of privacy, limited opportunities for decision making, relative scarcity of goods and services …' (Goodstein, 1979, p. 247) and, we would add, lack of opportunity to act directly (as argued in Chapter 8). Borzycki cites Haney (2002), summarising the impact of the formal structure of prison life and the type of inmate it shapes:
Compliance, legal need and access to justice
In the context of examining inmates' capacity to address their legal needs, we would argue that it is not only adjustment to community life that exposes the detrimental effects of becoming institutionalised, but also the need to be active and persistent about the tasks that may occur whilst inside. For example, the following comments relate to interactions with DCS staff:
Prison culture is a factor in shaping the degree to which inmates access justice and obtain assistance with their legal issues. The culture not only informs inmates' behaviour but also that of those who provide legal services as well as those who assist them obtaining access to those legal service providers. That is, the social relations that are embedded in both the formal and informal prison culture set the context for those that populate the pathways of inmates' access to justice. Inmates may not initiate legal processes for a range of reasons, including those that have their origins in the prison culture. For example, an inmate may not report an assault perpetrated by another prisoner because it betrays a code of behaviour that pits inmates against prison authorities. In other circumstances or cases, he or she may also not report an assault because physical violence is part of the experience in prison or a belief that such incidents can be resolved by responding with further violence. In this way, the informal structures that operate in the prison environment undermine the formal systems that are aimed at delivering justice to inmates.
Inmates may additionally not challenge circumstances where they do not feel they have been treated justly because expectations transmitted through prison practices render such challenges seemingly pointless. For example, links between being an inmate and what it is to be a criminal have meshed with notions of merit in terms of receiving assistance with legal problems. Consequently, where an inmate feels they have not been treated fairly, they make sense of that experience by resorting to an explanatory logic that, since they are criminals who have broken the law, they deserve whatever treatment they get.
Further, a tendency to compliance, which is reinforced by prison culture, can make inmates less inclined to challenge perceived injustices, as non-compliance may attract disciplinary action or result in help being withdrawn. This attitude could further extend into post-release life where the ex-inmate must be far more active in pursuing assistance. As such, prison culture may act as a barrier for inmates' access to justice because it may make rational the inaction on the part of the inmate and (apparent) withholding of assistance by stakeholders. In these cases, it could be said that the informal structure reflects the formal — proactive behaviour useful in serving legal needs may be downplayed as prisoners adapt to the strictures of institutionalisation.
However, our analysis has also demonstrated that social relations are always in a state of flux and there is potential for transformation of practice through symbolic action. For example, custodial officers may carry out welfare tasks within the constraints of the oppositional code by paying sensitive attention to the ramifications of interacting on a personal level with inmates (as one custodial officer reported he did). Therein lies the challenge to service providers: formal organisational processes and remedial strategies do not operate independently of the informal social relations that exist in the prison environment; they are enmeshed and therefore have the potential to destabilise and transform each other. Consequently, their interdependence represents both an opportunity as well as a threat to innovations aimed at improving inmates' access to justice.
As argued in the preceding chapters, whilst prisoners do have opportunities to obtain legal assistance, aspects of their own capacity, the systemic environment, the people who act on their behalf and the cultural milieu operating within the prison environment may weaken the potential of those opportunities to adequately serve inmates' legal needs. The following paragraphs briefly summarise the main issues raised in our analysis.
At an aggregate level, inmates tend to come to prison with complex histories and multiple impairments. In Chapter 6 we argued that the combination of a chaotic lifestyle prior to incarceration with limited financial and personal resources, mental and intellectual disabilities, comprehension difficulties, limited education, and poor skills served to generate legal issues and complicate their resolution. Indeed, with issues often spiralling out of control, imprisonment is often a marker for someone reaching a crisis as well as being a crisis in itself. The subsequent criminal and civil legal processes which surround incarceration place high demands on the capacity of prisoners, a capacity many do not have. Indeed, for many inmates, their personal resources may be in highest demand when they are at their lowest ebb, for example when they are first received into prison.
In Chapter 7, we focussed on the broader systemic environment which inmates must negotiate to address their legal needs. The picture that emerged was of a set of systems, which operated at the limits of their resources and were further tested by tensions between the different components. For example, the resolution of legal problems generally required the welfare and support functions to be offered in prison, but these services were allocated a lower priority than security when resources were scarce. The prioritisation of security concerns meant that welfare and support needs may not be served, or would be delayed. In other cases, the legal needs of prisoners may remain unaddressed because of the incompatibility between the routines of inmates and the schedules of lawyers, often seriously compromising or complicating communications between them. In this way, the sometimes discordant operations of different parts of the systems which manage inmates and resolve legal issues, challenged inmates' ability to effectively and efficiently deal with their legal problems.
Whilst people often seek legal help through third parties in the general community (Coumarelos et al. 2006), it was argued in Chapter 8 that inmates were almost entirely dependent upon third parties whilst in prison. DCS staff, staff from other agencies, friends and families often acted as intermediaries in circumstances where inmates could not facilitate their own legal help. On the one hand, these intermediaries provided essential and useful assistance. On the other hand, our analysis suggested that there were risks that the tasks entrusted to intermediaries may not be fulfilled or may lead to breaches of confidentiality or even exploitation. Further, finding the appropriate intermediary and engaging their assistance is not necessarily simple in prison: pathways to legal assistance lack consistency within and between prisons and the availability of formal information on how to obtain assistance was unreliable. Finally, even when the will to assist was there, those approached by inmates sometimes did not feel sufficiently equipped to meet the inmates' needs.
Finally, prison culture as discussed in Chapter 9 added another layer of complexity to inmates' access to justice. Features of the formal and informal prison culture, such as the oppositional code of behaviour, the naturalising of violence in prison, the conceptualisation of inmates as unworthy of assistance and the promotion of passivity may undermine the reporting of offences against inmates and/or legitimises the withholding of assistance. Consequently, even when everything else is functional (e.g. inmate capacity, the systemic environment and intermediaries), the subcultural resonances may suggest to inmates that the pursuit of justice is unnecessary, unpalatable or futile. Further, such perceptions persisted despite the heterogeneity in inmates' actual experiences of assistance with their legal problems.
This report has discussed, largely in isolation from each other, how inmate capacity, the systemic environment, the use of intermediaries and the prison culture can give rise to barriers to an inmate's ability to access justice. However, we have identified a number of broader themes that describe the effects of the interplay between these elements. These broader themes may be summarised as:
Accessibility and quality of legal help
Our analysis has demonstrated that access to legal assistance was variable among inmates, in particular, the greater the isolation of an inmate, the harder it was for him or her to access legal assistance (Chapter 7). Isolation may be geographic or a function of inmate classification (including remand versus sentenced). For example, inmates on protection or in segregation face the biggest challenges in accessing assistance, followed by those in maximum security (with no association restrictions). Inmates located in rural prisons also experience difficulties accessing the range of services required to meet their legal needs. Beyond these barriers, however, was the broader issue of the quality of the assistance available to inmates for their legal needs.
Inmates are able to access assistance for their legal problems from formal sources (e.g. lawyers and legal information resources) and informal sources (e.g. friends, family and other inmates). The discussion in the previous five chapters, however, suggests an inverse relationship between accessibility in prison of assistance for legal problems and the quality of that assistance. This was observable in all aspects of legal assistance, affecting access to legal information, advice, and participation in legal processes.
Inmates' experiences with obtaining legal information from prison libraries were indicative of this inversion. Libraries are located on prison grounds which, in principle, make them easy to access. However, the limited opening times (themselves subject to further reductions because of staff shortages and lockdown) and the completeness and currency of the information held therein, undermines their utility. Further, the process for loaning materials from the main law library was slow and was contingent upon requests being clearly articulated by the inmate, a challenge for many within this population. Accordingly, prison libraries have the potential to provide an opportunity for inmates to independently obtain quality legal information, but at the time of our interviews, inadequate access and resources weakened this potential.
Similarly, verbal legal advice and information also suffered through an inversion between access and quality. For instance, expertise in the form of lawyers and legal assistance services were largely located outside prison and could be difficult to contact by telephone or to arrange face-to-face meetings (Chapter 7). When they did occur, advice sessions with lawyers were often said to be too brief to obtain the advice and reassurance needed, or for the inmate to give proper instructions. In contrast, other inmates were an accessible resource in ready supply and easy to access for most inmates. However, reflective of the theme of an inverse relationship between access to, and quality of, legal information and advice, although their proximity makes them an attractive alternative, the reliability of the information they can offer is uncertain.
Problems associated with obtaining information about pathways to legal assistance and legal processes from DCS staff could also be understood through the intersection of access and quality. In Chapter 8 it was argued that some DCS staff, especially custodial officers located in the wings with inmates, confessed to having only rudimentary knowledge of how inmates might obtain legal assistance,64 gleaned from experience rather than through formal training or resources on this issue. Often the officers would refer inmates to welfare staff who may have greater knowledge but whose availability was considerably less by comparison. Induction videos and handbooks were also opportunities for assistance but accessibility was variable. Hence once again the better informed assistance was located, in at least one sense, at a greater distance from inmates than less informed sources, and that closest to inmates was not supported and/or maximised.
Generally speaking any strategy aimed at improving inmates' access to justice would need to improve the quality of information that is readily available to inmates and/or improve the accessibility of higher quality sources.
One strategy would involve improving the quality of the written information located within prisons. To this end, and during the conduct of this research, the accessibility of plain language legal materials has been vastly improved in NSW prisons. The State Library and DCS have placed LIAC (Legal Information Access Centre) materials in all NSW jails. LIAC materials are plain language legal information on a range of civil, family and criminal law topics, which are available through public libraries in NSW. Prison libraries have been added to the LIAC network. The service also involves training relevant staff and inmate clerks in the use and the holdings of prison libraries. The course is organised through an external body so completing the course will provide a recognised qualification for the trainee. Part of the training is in the use of LIAC materials.65
At the time of the interviews (February 2006), there were seven inmate librarians participating in the LIAC program. The added benefit of providing LIAC resources in prison is that the same resources are available at public libraries in the community. This potentially allows for some continuity in the information that is available to people when they are in or out of prison. Whilst this initiative will help address inmate legal needs, consideration must also be given to meeting the needs of those inmates who lack the capacity, through cognitive impairment or poor literacy skills, to use written resources.
Further examples of where quality legal advice has been made more accessible to inmates include the PLS visiting legal advice service and the placement of the LawAccess telephone number on the inmates' phone cards. The implementation of a specialist civil (and family) law advice service to prisoners would also address this need; a strategy that has recently been piloted in women's prisons. This option is discussed in greater detail later in this chapter. Another strategy to improve the knowledge base of those closer to inmates, such as prison welfare staff, has been a project where the NSW Office of Fair Trading (OFT), the Energy and Water Ombudsman NSW, the Office of State Revenue and others provided training to such staff so they could better inform and assist inmates about debt issues (OFT, 2006, p. 28; NSW Sentencing Council, 2006, p. 37). Accordingly, improving access to quality advice/information or improving the quality of assistance provided by sources easily accessed by inmates may address some of the barriers raised by the separation of prisoners from the services that provide legal assistance.
Prisoners and opportunities to access justice
In this section, we explore some of the incongruities that exist between inmates' legal needs, their capacity to address that need, and the systems in place to facilitate legal assistance. The mismatches seem to occur between systems (the correctional and legal systems), priorities (security and welfare), personal capacities (e.g. what is required of inmates to meet their legal needs) and the apparent realities of their environment (e.g. prison culture). Three main areas of difficulty have been identified: communication, capacity, and prison routine or customs.
Communication: capacity versus requirements
Problems with communication were often implied by interviewees in this study when describing the barriers to inmates gaining legal assistance and participating in legal processes. Chapter 6 discussed at length the often compounded difficulties inmates have with both verbal and written language. Through combinations of organic comprehension difficulties, such as those generated by drug and/or alcohol abuse or brain injury, insufficient education, and/or stress and anxiety, inmates can struggle to understand and to make themselves understood. Yet there are many aspects of obtaining legal assistance which fail to take into account these problems.
Firstly, much of the communication with lawyers takes place over the telephone, a communication method not conducive to ameliorating the effects of poor communication skills. Similarly, limited literacy and poor education are also issues for many inmates, yet access to legal information and participation in the legal process is often contingent upon being literate and skilled at filling in forms. The process for obtaining legal information from the law library at the MRRC from a remote jail provided one example of this. The apparent exclusion of intellectually disabled inmates from programs that are required for parole because of the emphasis on written materials is another example.
Secondly, as noted in Chapter 7, the majority of opportunities for receiving legal advice are brief. Inmates often do not have much time to interact with their lawyer whether it is via the telephone or in person and yet, as described in Chapter 6, many inmates have a limited ability to communicate succinctly and effectively with their lawyer. Consequently, with generally poor communication skills, inmates would benefit from longer interactions with their legal advisers.
Finally, information on how to obtain legal assistance from within prison is often variable both within and between prisons, and is at times even absent (Chapter 8). As a result, inmates may miss opportunities to obtain legal information, advice and participate in legal processes, especially if they are new to a particular prison or the prison environment in general. It was argued in Chapter 6 that there was a degree of assumption around inmates' knowledge of the justice system because of their prior experience of it. However, in reality, this knowledge was often only partial (mainly around their own criminal matter and infrequently around civil or family law issues) and may have been impaired by comprehension and cognitive issues. In other words, there appeared to be a lack of fit between inmates' information needs and the provisions made for those needs.
Capacity: supply versus demand
Capacity was another area where there was an inequality between the lived experience of prisoners' and the opportunities available to address their legal needs whilst in prison. For example, in Chapter 6 we described the often depleted personal and financial capacity of inmates at the very times when they face overwhelming demands to address their legal needs. So while legal processes represent an opportunity to meet their legal needs, participation may require tenacity and a set of comprehension skills beyond that of many inmates.
Further, due to their incarceration, inmates often required additional resources, such as the assistance of their friends and family to address legal issues (see Chapter 8). However, the common practice of moving inmates between prisons also takes them away from their external supports (including their lawyer). Further, the cycle and nature of criminal activity and its consequences can often leave inmates without any support network at all, distant or otherwise. Accordingly, at once, imprisonment in some respects necessitates more capacity but at the same time diminishes their resources through the inherent isolation, stress, anxiety, depression (Chapter 6) and lack of autonomy (Chapters 8 and 9) that incarceration can bring.
It was demonstrated in Chapters 7 and 8 that opportunities for access to justice were undermined by lack of systemic capacity. For instance, in order to access legal information or legal advice, inmates often needed to go through intermediaries. However, the prioritising of security over support functions often meant that the staff that may be needed to facilitate an inmate's visit with a lawyer, get their lawyer's telephone number put onto their phone card or to help them access the library may be sacrificed for a security matter (Chapter 7). Chapter 7 also detailed the challenged resources of the public legal profession. Consequently, whilst technically assistance with a legal problem was available, the distribution of resources within the systemic environment meant that, at times, in reality these opportunities were unavailable.
Prison routine: procedures/conventions versus practicalities
In the discussion of the systemic environment (Chapter 7), the routines of prison and the practices of service providers were noted to be, at times, incompatible. For example, security measures such as a lockdown, meant that inmates were not available at the times when their lawyers were onsite. Similarly, inmates were not able to access telephones at times when lawyers were out of court, and the lawyers could not easily return calls if an inmate left a message. Accordingly, the discordance between the formal routines to which prisoners must adhere and the hours of operation of agencies that carry out legal processes or provide legal assistance serve to undermine inmates' ability to address their legal needs.
The informal conventions or the subculture of the prison environment also clashed with some avenues of legal redress. Broadly speaking, difficulties may arise when one inmate wrongs another and approaches custodial staff for assistance with any legal problem. It was argued that inmates may not pursue certain avenues of redress available to them because they ran counter to behaviour that was appropriate according to the prison subculture. Inmates and officers are understood in the prison subculture to be inherently and irrevocably in opposition to each other. Consequently, going onto protection or informing prison authorities of an assault against one inmate by another, for example, constitutes a betrayal of inmate 'brotherhood'.
Moreover, some inmates felt they could not freely approach officers to request assistance with any legal (or any other) problem because other inmates may interpret this as informing or just being too close to 'the enemy' as it were. Consequences for these courses of action include stigmatisation or violence. Accordingly, seeking legal assistance from an officer is considered unattractive or worse, unsafe, in the informal code of behaviour for inmates. Moves towards dual roles for officers (i.e. inmate management and welfare), whilst improving accessibility to assistance for inmates, may be problematic with the current informal frameworks that structure social relations within prison.
Finally, the tendency for inmates to have more informal arrangements for child custody, financial transactions, and housing also presents as a challenge to later successfully using the law to resolve these issues. In Chapter 6 a range of circumstances were outlined concerning how inmates who have informal arrangements are vulnerable to having difficulties enforcing or even negotiating those arrangements whilst in prison.
In summary, our analysis suggests that the opportunities for inmates to access justice or to address their legal needs were at times misaligned with the lived experience of prison. Mismatches were observed between the communication avenues most effective for inmates and those most often used to obtain legal assistance, the personal and systemic resources available to inmates and pathways to legal assistance, and the daily realities of inmates and the operational practices of legal services. A better fit between these various components would serve to improve access to justice and maximise the efficacy, services and availability of people who assist inmates.
Being aware of the points at which opportunities for inmates to access justice are compromised or are missed because they do not engage with the realities of prison life can assist stakeholders to identify how to maximise the support they provide to this group. In terms of the three main areas discussed above, a number of strategies should be considered.
Firstly, the means of communication required needs to take into account the preferences and skills of the inmate. For example, inmates prefer face-to-face communication, and may require more time to digest complex legal information in order to make informed decisions and give instructions to their lawyer. Prison inmates may also need assistance with reading complex legal documents, but assistance that does not risk confidentiality, embarrassment or exploitation (see Chapter 8). Inmates also require, especially at the initial stage of their incarceration, clear, accurate, detailed and reliable information about how to get assistance with their legal needs. Currently, pathways to assistance are obscured by inconsistency in the provision of assistance, and by unreliable or missing formal information.
Secondly, there is clearly a relationship between resources (both personal and systemic) and inmates' ability to take advantage of opportunities for legal assistance. Increasing the skills of inmates (for example, by giving them effective access to legal information via the library or in the form of training or education) or tailoring the demands made on their capacities (for example, by providing accessible information about their legal matter, and sufficient time to discuss this with their legal adviser) could serve to narrow the gap. In some jurisdictions, law students have been involved in providing face-to-face 'court readiness programs' and other forms of legal information and assistance to prisoners, as part of their studies (e.g. Naylor & Jacobson, 2007; Lajeunesse, 2002).
From the systemic resources point of view, our analysis does point to considerable strain on Legal Aid services and those provided by DCS staff. Clearly, the provision of more or better resources in terms of equipment, telephones, and staff are subject to budget concerns, however, our data suggest that there may be a synergistic benefit to be exploited from directing resources towards inmates' welfare concerns. For instance, more resources directed towards inmates' legal needs may ease the strain on custodial staff, because inmates are more settled and require less intensive behaviour management. As Lajeunesse (2002) observed in her study of access to justice in Canadian federal prisons:
Having advice services via AVL can circumvent the need for lawyers to attend prisons and increase time spent in advice sessions because inmates are assembled prior to the link being activated. Accordingly, where support activities adjust to, or circumvent, the impact of security functions, inmates are able to continue receiving support in the face of prison-imposed restrictions.
Thirdly, services and functions both within and external to DCS need to engage with the DCS security operations and inmates' routines. Security will, more than likely, remain the foremost concern in prisons and cannot be ignored by legal service providers if it has the potential to disrupt support services. In negotiation with DCS, perhaps services could be made less vulnerable to security activities or incorporate sufficient flexibility so that consistent service may be maintained. An example of this in the current study was where the chaplain, official visitors and welfare officers were able to go to the wings/pods to see inmates who, due to their prisoner classification, could not easily leave the wing to seek assistance (see Chapter 7). The main point here is that, because the inmates did not have to wait for an escort to meet with these people and receive help, the service provision was less vulnerable to security requirements. External services could also provide opportunities that take into account the current strictures governing prison life, such as the hours that the telephones operate and routine lockdown (Chapter 7). For example, a number of inmates mentioned how they could ring or leave a message on their private lawyer's mobile phone. That said, the expense of contacting a mobile number must also be taken into consideration.
Finally, strategies designed to assist inmates with their legal problems need to take account of prison culture in order to be effective. This is not to say that this culture and the subjective positions taken up by inmate and officer are immutable or universally experienced. Rather, the issues discussed in this analysis are those which our research suggests affect access to justice and consequently may affect strategies concerned with improving it. Culture is difficult to change particularly when its logic is reinforced by a range of systems, practices and ideologies.
To simultaneously avoid reinforcing a culture (or subculture) yet effectively engage with the limitations it imposes, is a dilemma that many service providers face in a range of contexts (e.g. domestic violence (Davis, 2000), HIV prevention (Parker et al., 2000)). Strategies that run counter to the informal order of social relations, such as custodial officers taking on increasing responsibilities in inmate support, may therefore require a period of adjustment and/or modification. Officers would also need to be adequately resourced so they can best support and refer inmates who need legal and other assistance. In Chapter 9 it was demonstrated how officers may still provide assistance without leaving the inmate vulnerable to violence or stigmatisation, by strategically establishing modes of interaction with them. The important message here is that agencies understand the current limitations and assumptions that aspects of prison culture bring and engage with them when developing service provision strategies.
Similarly, the tendency towards having informal arrangements around important issues such as housing, finance, and child care needs to be addressed, particularly taking into account the reluctance to use, or a mistrust of, the formal processes, as well as a lack of knowledge of those processes. The assumption that repeat or long-term inmates have a good knowledge of legal and/or administrative processes may be misplaced as many inmates habitually operate outside formal processes and are usually ignorant or, at least, mistrustful of them. Pre-release basic instruction on how inmates may manage these issues through formal processes and the benefits that these processes may bring, may assist them in being able to preserve their rights and become accustomed to using the law to their own advantage. Putting such knowledge into practice may also assist in improving their legal position by having formal supporting documentation.
Disempowerment and meeting legal needs
There is already much written about the disempowerment of the inmate in a prison setting and the essential dominance of prison authority over the prisoner (see for example, de Viggiani, 2007). However, this section will discuss the disempowerment in the prison setting as it relates specifically to meeting legal needs.
One of the strongest contributors to the sense of disempowerment surrounding inmates meeting their legal needs was the pervasive necessity for intermediaries, as described in detail in Chapter 8. From booking an appointment with the PLS visiting legal advice clinic, to having their belongings retrieved and/or stored, inmates rely heavily on others to carry out tasks on their behalf. The opportunities for an inmate to conduct autonomous research and to take action to address their legal needs are minimal, with the inmate being frequently dependent upon others, plainly a potentially disempowering position to be in. The risks associated with such a vulnerable position were also described: a small number of inmates suffered financial loss, other inmates had their privacy breached through exploitative relationships with their intermediaries and a substantial number of inmates were unskilled or even felt deskilled concerning how to deal with authorities and how to actively resolve their legal problems.
Chapter 8 also contained evidence of the inconsistency of assistance received through intermediaries. Inmates were not sure, from one prison to the next, from one staff member to the next or from one inmate to the next, that the information and assistance they receive will ultimately get them the legal assistance they require. Inmates may feel a further sense of disempowerment as the ground upon which they pursue pathways to legal assistance repeatedly shifts, consequently undermining their development of knowledge and the confidence to know that their actions will bring a satisfactory outcome.
This sense of disempowerment, which can result from the loss of personal autonomy, can also be seen in the adoption of the culture of compliance, as described in Chapter 9. A key component of the compliant inmate identity is conformity with the formal culture of the prison and unquestioning submission to prison routines and structures. We argued that this persona is promoted through the reinforcement of passive behaviour and the discouragement of more confronting behaviours, which may not attract assistance when it is needed. Non-conformity, however, also had a mutually reinforcing relationship with disempowerment in the realm of the law. In Chapter 6 it was asserted that previous experience with the criminal law, which is perceived as working against the inmate, further diminished their willingness to use other legal processes (e.g. civil and family law) to their benefit. Further their lack of previous experience in using the civil law processes, because they have habitually by-passed the law in arranging their affairs, means that inmates often opt out of initiating or participating in legal processes that could benefit them.
The relationship between inmates and their lawyers was another potential site of disempowerment. Our interviews contained many complaints from inmates about their representation by Legal Aid and the ALS, and, to a lesser extent, by private solicitors. It was not possible in this research to examine the validity of such complaints as the sample of inmates was clearly biased towards those whose criminal matters have resulted in a period of incarceration. However, in Chapter 7 it was suggested that at least some of the dissatisfaction expressed was derived from the lack of input inmates felt they had in their case — a lack of input caused by the limited access inmates had to their lawyers whilst in prison. More specifically, some interviewees felt that lawyers did not have sufficient time to spend with inmates (particularly those with limited comprehension or cognitive capacity) to get a complete picture of their criminal matter and to discuss possible strategies and outcomes. It was also apparent that dissatisfaction with the legal assistance provided (whether warranted or not) undermined inmates' faith in the legal system in general and Legal Aid/ALS lawyers in particular because they felt that they did not, and would not in the future, receive a fair defence.
A client's inclusion in the process of resolving their matter has been highlighted by previous research as an important aspect of the perceived quality of legal services (Hunter et al., 1999). In an examination of access to justice by the NSW Law Society, the Taskforce commented:
One final area in which the theme of disempowerment of the inmate and inmate's legal needs was visible was in the cyclical nature of incarceration and the consequent accumulation of disadvantage. In Chapter 6 it was revealed how one occasion of imprisonment relates to the next period of incarceration through the incursion of legal problems prior to, and as a result of, prison, such as the lack of resolution of problems whilst inside and the stripping of the inmate of skills that may assist in them dealing with legal problems whilst in prison. Inmates also lose family support, friends, money, possessions, jobs, knowledge of current technologies and housing each time they are incarcerated, cumulatively compromising their ability to remain free of or to tackle effectively legal problems (Borzycki, 2005; Baldry et al., 2003). Consequently, there is an intimate and mutually harmful relationship between disempowerment and the legal needs of inmates as inmates move in and out and back into prison.
Disempowerment of inmates in addressing legal needs seems, from our analysis, to emanate from a number of areas: the divestiture of responsibility for tasks serving the resolution of legal needs; reinforcement of passive behaviour; cumulative disadvantage; and, an undermining of faith that the law can be an instrument of justice for them. In these ways, pathways to legal assistance from prison may both suffer from the disempowerment that often besets prisoners, as well as contribute to it. Consequently, policy makers would need to simultaneously look at engaging with the effects of disempowerment whilst attempting not to further exacerbate it when formulating policy to improve access to legal assistance for prison inmates.
One of the clearest directions for policy makers with respect to disempowerment and inmates' legal needs is to reduce the number of intermediaries required along pathways to legal assistance. Providing opportunities so that inmates may conduct independent research and progress their legal matters without requiring the intercession of others may not only restore a degree of autonomy and maintain/develop skills, but may also minimise delay and draw less on scarce human resources. The inclusion of the LawAccess telephone number on inmates' phone cards is an example of a strategy where inmates may directly obtain legal information and advice as they need it, enhancing their independence of DCS staff or others, and improving their levels of legal knowledge.
LawAccess is a free statewide (NSW) telephone service that provides legal information, advice and referrals. Legal officers can provide legal advice over the telephone, and/or refer the caller to another legal or related service that is appropriate to their needs. They can also send out information, discuss eligibility for Legal Aid and assist with making an application for Legal Aid. Inmates would then not only be in a better position to understand their legal matters and what they can do about them, but also assess the performance of counsel and the fairness of the outcome. Further, continuity of service with LawAccess from inside to outside prison (and vice versa) means that the inmate may be already familiar with the service and therefore more likely to use it once they leave prison.
To minimise the haphazard and consequently disempowering nature of the pathways to legal assistance, processes may need to be rationalised and personnel supported so that assistance is reliable, effective and is recognised as part of their duties. An essential element in this is the provision of adequate support to personnel providing information about legal problems (not legal advice, see definitions in Chapter 5) in the form of training and the availability of comprehensive and up-to-date information about pathways to legal assistance that is readily accessible and executable. In addition, introducing LIAC materials into prison libraries is another strategy which enables direct access to legal information. Further, both LIAC and LawAccess are resources which can also be directly accessed by inmates on the outside after their release from prison which affords a continuity that can bring confidence and trust in quality sources of information.
As noted in Chapter 6 inmates are accustomed to informal arrangements and/or conducting their affairs outside of the law, so they have little experience in using the law as a tool for their own benefit. Making inmates aware of their rights and how they go about ensuring them through such programs may empower them to be an active user of the law rather than a passive recipient of legal actions, circumventing future legal problems through early and effective action. Consequently, educating and skilling inmates in issues with legal implications such as financial literacy, welfare rights, family rights and obligations before they are released may also assist in the alleviating or avoiding legal problems post-release. One welfare officer who was also a financial counsellor described a program she devised that gave inmates information about how the SDRO and the Victims Compensation Tribunal function.
Finally, allowing inmates more time with their legal advisers may be another way in which inmates would be empowered in meeting their legal needs. Having sufficient resources to allow inmates enough time to convey their case to their lawyer, and discuss strategies in consultation with the inmate may assist inmate defendants in participating more fully and effectively in their legal matters.
Targeting and timing legal assistance
The previous three sections have described how barriers related to inmate capacity, the systemic environment, pathways to legal assistance and prison culture interact to produce an inversion between access and quality of assistance with legal problems and a mismatch between prisons, prisoners and opportunities to access justice, and the disempowerment of the inmate. The implications of these factors for policy makers and the strategies that need to be designed to assist the prevention and resolution of prisoners' legal needs were also outlined. However, imprisonment and being a prisoner is a dynamic rather than a static state and is only one (although often recurring) phase in a person's life. Consequently, strategies aimed at improving access to justice for inmates may be best targeted when the ebb and flow of legal needs, personal capacity and the environment in which the person is operating during the incarceration process, are taken into account.
To begin with, imprisonment itself can be seen as a 'circuit-breaker' whereby there is a hiatus in an increasingly chaotic lifestyle. In comparison to the often turbulent period prior to custody and the demanding times post-release, prison may represent an opportunity for services to be brought to the person when, relatively speaking, they may have an opportunity to address them. Such an approach resonates with a discussion of health care services in Australian prisons by Levy (2002):
Turning to the incarceration process itself, inmates generally move through different forms of custody: from police custody at arrest, to a remand centre if bail is refused, and then to a 'sentenced' jail once convicted. Virtually all prisoners are also released from custody, the majority within six months of their arrest. Following release, an inmate may be subject to parole or they may be discharged unconditionally. Accordingly, a prisoner's environment can change considerably as he or she moves through the incarceration process. It alters in terms of the demands it makes of inmates and in the barriers it presents to accessing legal assistance. Further, the types of legal problems inmates face and their own personal (e.g. cognitive) capacity to identify and address these legal issues also vary considerably as they move through these phases of imprisonment. Consequently, effective targeting of services to prisoners and ex-prisoners should take account of the changing needs, capacities and environments as inmates move through the incarceration process.
To assist service providers and policy makers in targeting resources and strategies to better meet the legal needs of prisoners, Table 10.1 (see page 280) summarises the legal issues, the state of the inmate, features of the environment, and the key barriers to legal assistance across the various key stages of incarceration: charge and detention, remand, sentenced, pre-release and post-release. The table illustrates and takes into account the ebbs and flows in: civil and criminal legal needs, personal capacity, and the systemic constraints affecting an inmate's access to justice at different points in the system.
It is clear from the statistics provided in Chapter 2 that prison inmates, as a group, are highly disadvantaged. At the aggregate level, they are under educated, have high rates of mental illness and intellectual disability, have drug and/or alcohol addictions and are financially compromised. Imprisonment tends to compound these disadvantages. Each time the person cycles through the justice system, personal supports are strained, skills atrophy, financial resources are depleted and the capacity to operate well 'on the outside' and without resort to unlawful means is further diminished. Many of the symptoms and causes of these problems have legal implications, with family breakdown, difficulties with housing, debt, conflict with government authorities all generating and reflecting the disadvantage that prisoners experience. However, there has been little research examining this group and their legal needs. This study has sought to address this dearth of knowledge and identify areas which may be amenable to improvement.
Our study drew upon the opinions and experiences of inmates, ex-inmates and the professionals who work with them. As a group, the sample of inmates and ex-inmates broadly reflected the disadvantaged population described in the literature: many had not completed a full school education and more than half had spent time in prison before. Our sample included men and women of various ages, Aboriginal people and people from non-English speaking backgrounds. We spoke to inmates in a range of custodial situations. Pertinent to this investigation, however, was that many of the inmate interviewees also had legal problems in addition to the criminal offence for which they were incarcerated. In many cases, they were dealing with a range of other criminal, family and civil law issues. These included debt, child access and residence, child support payments; immigration, loss of licence, AVOs, loss of personal property, and business related issues.
Our research indicated that there are both opportunities for addressing these legal issues as well as vulnerabilities in the systems that provide that redress. Opportunities for obtaining information about legal issues and how to address them were made available through the prison law library and its borrowing service at the MRRC, information provided by DCS, written information such as posters and pamphlets distributed by legal services and (since interviews ceased) through LIAC. Sources of legal assistance to inmates included private lawyers, Legal Aid including the PLS, ALS lawyers and Aboriginal field officers, and latterly, LawAccess. DCS support for prisoners to participate in legal processes came through the provision of transport to court for criminal matters, the tracking of court dates through OIMS, the implementation of the AVL system, and the work of welfare and other program staff.
Table 10.1: Summary of legal issues, state of inmate, features of environment, key barriers to addressing legal needs and policy implications, by stage of incarceration
|Legal issues||State of prisoner||Features of the environment||Key barriers||Policy/service provision implications|
Charged and in detention
Phase characterised by acute personal and legal crisis in the context of the prisoner experiencing impaired cognitive capacity and having very limited access to legal advice and support
Child protection and custody
Personal property and pets
Notification of employer
|Shocked and/or feeling anxious and fearful|
Possible drug and alcohol intoxication or withdrawal
Possible unstable mental health
Limited financial capacity
Possible limited proficiency in English, literacy problems, and/or cognitive delay
Focusing on criminal matter — other civil issues not a priority
May not seek or receive informal support because of distance, lifestyle, sense of shame, and/or belief that release is likely (on bail or because there will be no charge)
|Crowded police/court cells that lack privacy for legal consultation|
Little access to telephones
No access to library
Legal Aid available for bail but not for criminal matters at time of arrest
Limited time with duty lawyer at bail hearing
No or limited access to prison welfare support
|Little access to legal information or advice about criminal charges, particularly for those without private representation at the time of arrest|
Confidentiality compromised when speaking to legal adviser in police or court cells
Personal capacity may be limited by intoxication, shock, lack of appropriate medication for mental illness and anxiety but crucial statements may still be made
Limited financial capacity may impact on ability to get bail
Detention may be sudden and unexpected
|Resources for longer appointment times with legal advisers, taking into account the often reduced capacity and high need of prisoners at this time
Training for lawyers about factors affecting prisoner capacity (e.g. drug and alcohol impairment, mental illness and the impact of a chaotic history or lifestyle)
Provision of time and space for private legal consultations in police cells
Assessment of and assistance with immediate non-criminal needs (e.g. housing, child care, employment, property and pets) especially if held in police cells for extended periods
Consideration of a legal advice service for prisoners with urgent civil/family legal issues in police/court cells where prisoners are held for extended periods
Phase characterised by a need to simultaneously address criminal issues and prevent or address civil/family issues when unfamiliar with the systems, suffering from a reduction in personal capacity (e.g. withdrawal and stress) and coping with imposed time constraints because of court dates and time limits for notifications
Housing (tenancy and mortgage payments)
Employment/ business related legal issues
Ongoing need to organise affairs relating to family and children
|Prisoner continues to be in shock, and is feeling unsettled and highly anxious|
Prisoner unsure about length of time to be spent in custody
Possible drug and alcohol intoxication or withdrawal
Re-establishing appropriate psychiatric medication
Unfamiliarity with available help and processes in prison
Court processes and outcomes not well understood
Limited financial capacity
Possible limited proficiency in English, literacy problems, cognitive delay and/or mental health problems
Focusing on criminal matter — other civil issues not a priority
May not be aware of full range of outstanding civil issues
Tendency to have informal arrangements for child care, property, housing and debt
May have limited knowledge of prison processes and culture
|Most remandees in maximum security, which is a highly stressful environment|
Phone cards may take time to be functional
Staff shortages lead to custodial officers being stripped from duties such as sorting the mail and setting up phone cards Vulnerable prisoners may be placed on protection, which has more restrictions on movement and limits out-of-cell hours
Restrictions on movement experienced within the correctional centre when first received due to monitoring by prison staff
Prisoner may not receive induction information because of lack of resources
Prisoners legal advice service has limited time to spend with each prisoner
Limited window of time for lawyers to attend prison (e.g. due to lockdown times) or for inmates to telephone lawyers (e.g the lockdown occurs in the early afternoon before the lawyers are out of court)
Prisoners cannot directly receive telephone calls in prison
Time limited telephone calls and a limited number of telephones available
Legal advice service lawyer may not be able to give advice outside his or her area of expertise e.g. on civil/family issues because he or she has specialised as a criminal lawyer
Frequent movement of prisoners between correctional centres may disrupt communication with lawyer and informal intermediaries
No internet access to legal information
Prisoners must use intermediaries for assistance with legal problems
Obtaining legal information from library may entail delays
Limited access to computer to read briefs
Transit to court long and may involve transfer to another prison (avoided if hearing by AVL)
Prison culture discourages use of custodial staff for information
|Personal capacity may be limited by intoxication, shock, depression, anxiety, re-establishing psychiatric medication and uncertainty about time that will be spent in custody|
Problems associated with phoning legal for advice because of prisoner classification, restriction on movement, delayed telephone approval, limited time available on telephones, competition for telephone use and lawyer not available during prison operating hours
Prisoners reliant on publicly funded legal services because of poor financial capacity — yet these services are limited by resources
Access to legal advice given in person reduced because of lockdown, prisoner classification, timeliness, movement between prisons and low resources of publicly funded legal services
Reduced capacity to give instruction to lawyers because of comprehension difficulties, privacy and limited time with adviser
May not receive legal mail in time to prepare for court because mail distribution is delayed (e.g. delays may occur because the officer responsible has been placed on security related duties during staff shortages)-
Intermediaries delay or fail to carry out tasks related to obtaining legal assistance
Reduced capacity to access legal information because of prisoner classification, restriction on movement and delayed responses to legal information requests
Difficulty understanding legal documents and court processes because of complexity, limited proficiency in English and literacy problems
Transportation to court hearing on trucks is highly unpleasant and prisoners may plead guilty to avoid it
Criminal matter takes priority to the possible detriment of civil/family legal issues
Unfamiliarity with formal and informal prison 'rules' may leave them vulnerable and/or unable to initiate obtaining assistance
|Assessment of remandees' civil and family legal needs
Clear, reliable and timely information for prisoners about how to access legal assistance for civil, family and criminal law problems from jail
Strategies to ensure that prisoners in reception, segregation and protection can access legal assistance
Clear and consistent information and support for DCS staff about their role as a link to legal assistance (e.g. consideration of courses such as 'law for non-lawyers' for key custodial and other staff like Wing Officers, Welfare Officers and Community Corrections Staff)
Continuation of the PLS weekly visiting legal advice clinic, with funding to allow for longer appointment times
Continuation of visits by the ALS field officers
Maintenance of LIAC information and staffing in all prison libraries
Persons (staff and prisoner peers) who may assist prisoners to complete library request forms are clearly identified to prisoners and trained appropriately
Develop phone cards that are transferable between prisons
Consideration of ways to improve telephone communication between prisoners, legal and government services (e.g. instituting a message service for lawyers trying to contact prisoner clients and setting up special telephone numbers for prisoners without automated waiting periods)
Increasing the accessibility and availability of welfare staff/staff that can assist with welfare issues (e.g. advocacy and contact with government agencies)
Provide community legal education for longer term remand and sentenced prisoners on issues including housing, debt/finance, child custody, domestic violence issues, immigration and employment
Increase opportunities for prisoners to act autonomously in address their legal issues (e.g. enable access to government agencies such as SDRO)
Phase characterised by prisoners having time to take on outstanding legal issues and are no longer in crisis, but more distant from issues outside of prison and have fewer legal resources
Access to children and other family matters
Prison disciplinary matters
Assault or other accidents in prison
Victims compensation restitution
Outstanding warrants and DNA testing
Unpaid fines, child support, DOH, Centrelink and other debts
|More familiar with available processes and culture in prison|
Receive treatment for mental illness and alcohol or other drug problems
DEPENDING UPON LENGTH OF SENTENCE
More involved in work and education programs
Has links within jail to other inmates and staff
Less connected with life outside prison
|Most sentenced prisoners in lower security prisons|
Longer out-of-cell hours
May still be transferred between prisons
If in a rural/regional location, higher costs are incurred for telephone calls and, consequently, there is less access to the prisoner's private lawyer as well as to family/friends
At the time of our interviews, limited and outdated legal information materials were available at sentenced jails (LIAC material are now distributed)
No direct access to law library based in MRRC
Free telephone calls to Legal Aid but prisoners have to pay for telephone calls to private lawyers
Little or no resources to assist with resolution of civil/family legal issues
Limited access to formal hearings for civil/family law matters
|Prisoners must have money and be prepared to pay for certain charges, such as telephone calls to their private lawyer, with the cost being higher if the prisoner is transferred to a regional prison|
Difficulties accessing solicitor when transferred to a prison away from the prisoner's usual place of residence
Loss of connection with the outside world reduces prisoners' motivation to address outstanding legal problems
Limited access to current, relevant legal information materials from sentenced jails
For those on short sentences, limited access to education or other programs and there is less time to 'settle' into jail and address issues
For those on longer sentences, prisoners are more entrenched in prison culture and are less likely to report assault by other prisoners
A more passive approach to addressing issues may evolve during the prison sentence
Accessible information sources (e.g. other prisoners) may not have reliable information
|Regular specialist civil/family legal advice clinics in sentenced jails
Maintenance of LIAC information and staffing in all prisons
LawAccess number charged as a local call on all prisoners' phone cards
More formal streamlined processes for prisoners to contact relevant government agencies (e.g. SDRO to address fine-related debt and DOH concerning housing debt)
Increasing the number of welfare staff/staff that can assist with welfare issues, including advocacy and contact with government agencies
Further explore and evaluate the use of AVL for the provision of legal advice services in prison
Improved systems of contact between prisoners and lawyers (e.g. reliable message system and mobile numbers)
Better access to forums for resolving civil/family matters
Calling in of warrants to enable the prisoner to serve time concurrently
Phase characterised by an increasingly urgent need to prepare and be eligible for release in the context of the prisoner experiencing anxiety concerning his or her release, partly stemming from an inadequate knowledge about the situation outside of prison
Deportation and immigration issues
|May be more comfortable in prison than outside|
May feel heightened emotions about leaving prison, either nervous or eager
Possible unrealistic expectations of post-release life
May be placed in rural/regional location, which leads to increased costs of telephone calls, less access to non-local lawyers and more difficulty in making arrangements for post-release support
Limited information on civil/family law matters
Limited places in courses, which prisoners may need to attend so that they can be eligible for parole
Parole hearing conducted at a distance to prisoner's prison
|Lack of access to up to date accurate legal information because of barriers to accessing a law library and/or out of date library content|
Willingness to agree to parole conditions that can't be met
Less access to lawyers because of geographical location
Failure to attend court or parole hearing on the basis that, by leaving their current prison to attend their hearing, they will lose standing and privileges
Cannot meet parole requirements because insufficient places on required courses
For short stay prisoners, less time to address outstanding legal issues and to prepare for release
|Support and assistance to address outstanding legal issues:
- outstanding warrants
- commence child access arrangements
-payment of fines to regain license
-deportation and immigration
Establish familiarity with resources/networks that may be continued outside of prison (e.g. LIAC and LawAccess)
Sufficient places/organisation of courses to allow prisoners to meet eligibility requirements by the end of their non-parole period
Alternatives to travelling for, and otherwise not participating in, parole hearings
Provide sufficient information/education about basic life skills, such as opening bank accounts, regaining a drivers licence, obtaining identification such as a Medicare card and accessing legal assistance outside of prison
Phase characterised by an eagerness and a need to rebuild their life while having to deal with the reality of multiple obligations, few financial resources, absent or outdated skills, poor housing options and an unstructured environment
|Complying with parole conditions|
Social security debt and proving social security eligibility
Outstanding fines and other debts
Police attention and harassment
Discrimination issues when trying to find employment and housing
Access/custody of children
Victims compensation restitution
|Capacity to meet responsibilities reduced by lack of autonomy in prison|
May be stressed, overwhelmed or fearful
Face recurring alcohol or other drug and/or mental health issues
Lack of support network due to release into a new area or relationships damaged prior to incarceration
No drivers licence
Stigmatised because of imprisonment
Reduced financial resources
Out of touch with current technology, procedures and social mores
Accustomed to acting passively and/or aggressively
May have few social supports and be tempted back to negative patterns of behaviour
|Greater access to legal services than current prisoners|
No, inappropriate, or temporary housing
May be subject to multiple compliance regime (parole, Centrelink requirements, AVO/ADVOs, methadone, etc.)
Unstructured environment (particularly if not on parole)
Old networks linked to substance problems and/or criminal behaviour
Restrictions placed on people with whom the person can associate
|Lack of support and multiple responsibilities may lead to breach of parole or re-offending|
Housing and reduced financial resources may make it difficult to regain custody of children
Re-connection with family/friends may make it difficult to avoid drug or alcohol use and criminal activity
Difficulty in modifying passive yet aggressive behaviour patterns to meet social expectations especially when dealing with services/authorities
May have made unrealistic arrangements/commitments that are prone to break down and may place them at risk of breaching parole conditions
|More general support for prisoners upon release, including with housing, employment and reintegrating with family/community to assist in the prevention of parole breaches and going outside the law to meet needs
Upon release, all prisoners are provided with:
- LawAccess number
- PLS number (if need assistance to vary parole conditions)
Information for Community Corrections staff about legal services for their clients (at the very minimum, knowing about and giving out the LawAccess telephone number)
Consideration of courses such as 'law for non-lawyers' for Community Corrections staff
Information for support agencies/welfare staff about legal services available for their ex-prisoner (and other) clients. At the very minimum, giving out the LawAccess telephone number
Recognition by authorities of the multiple obligations that prisoners experience while trying to re-establish life outside prison
Facilitating access to justice for prisoners involves taking into account these vulnerabilities and noting where processes may be adjusted to avoid or strengthen areas of weakness. With respect to legal problems, the question is whether any processes may be instituted to minimise the generation of new problems (such as the automatic notification system of Centrelink, or facilitating periodic payments to the SDRO so that inmates can regain their driver's licence sooner after release) and services/education targeted at the most common legal issues encountered by inmates. Further, services need to be made available during the more stable, sentenced phase of incarceration so that inmates can address their (potential) legal issues before the demands of release and reintegration are upon them. Accordingly, some relatively simple adjustments to policy and practice by stakeholders may markedly improve the likelihood that inmates' legal problems may be addressed.
For groups at a particular disadvantage, such as people in protection or segregation or those with an intellectual disability, policy makers should examine whether current and planned practices and programs reach these people — a different mode of communication may be needed, longer appointments should be scheduled, or verbal information needs should to be supported by a written document and vice versa. From interviewees in this report, it would appear that there is a considerable range in terms of inmates' capacity with basic skills such as reading and writing, as well as their understanding of the law and the policies and procedures of prison. Consequently, a 'one size fits all' approach will not reach all inmates. Further, resourcing those people and services that are within easy and frequent contact with inmates (e.g. welfare and certain custodial staff) and/or ensuring reliable/efficient access to legally trained assistance would help avoid the often inverse relationship between the quality and accessibility of legal information and assistance.
There were also pathways to legal assistance that were vulnerable to breakdown: processes that were caught between different parts of the justice systemic environment; convoluted processes; processes that differed from prison to prison or altered with changing personnel; processes that were not well resourced; and processes for which responsibility was not clear. However, some of the circumstances that disrupt these pathways are unlikely to change or would take some time to change. Consequently, it is important that agencies work with these limitations and ensure that their processes are robust against the impact of security or the prison culture, and that there are ways of engaging with these processes. Service providers need to acquaint themselves with these issues and determine how best to negotiate these processes so that opportunities and time (their own and the inmate's) do not go to waste.
Finally, judicious timing of assistance and services may ensure that help comes when inmates can best capitalise on it and that legal issues are averted before they become problems. For example, skilling or re-skilling inmates in the management of their time, money and interactions with authorities before release may assist ex-inmates to remain independent and avoid resorting to solutions outside the law.
Consequently, satisfying legal need from within the prison environment can be a complex process. Isolation from services, the formal and informal regulation of movement and interactions, personal capacity and the tension between components of the justice system all affect how opportunities are exploited or missed. And there is no doubt that opportunities do exist for prisoners to address their legal needs and to prevent new problems from developing. Our research showed that many strategies are successful in bringing legal assistance to prisoners, by engaging with the prevailing conditions and working with the limitations concomitant with imprisonment. Whilst it is true that some of the circumstances that may work against access to justice for inmates may not change, or will only change slowly, it is certainly possible to successfully address the legal needs of prison inmates and bring the opportunity for justice to people held in custody.
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Welfare Rights Centre 2007, The Independent Social Security Handbook, online edition, Available at: <http://www.welfarerights.org.au/isshsep07/default.htm>
Westwood Spice 2005, Evaluation of the Criminal Justice Support Network (CJSN), Intellectual Disability Rights Service, Sydney, Available at: <http://www.idrs.org.au/cjsn/evaluation05.pdf>
Winfree Jr, L., Newbold, G. & Tubb III, S. 2002, 'Prisoner perspectives on inmate culture in New Mexico and New Zealand: a descriptive case study', The Prison Journal, vol. 82, no. 2, pp. 213–233
Winkworth, G. 2005, 'Partnering the 800 pound gorilla: Centrelink working locally to create opportunities for participation', Australian Journal of Public Administration, vol. 64, no. 3, pp. 24–34
Woodward, R. 2003, Families of prisoners: literature review on issues and difficulties, Occasional Paper Number 10, Department of Family and Community Services, Canberra
Zdenkowski, G. & Brown, D. 1982, The prison struggle: changing Australia's penal system, Penguin Books, Ringwood
Dietrich v R (1992) 109 ALR 385
Roach v Electoral Commissioner  HCA 43
Sales v Minister for Immigration and Multicultural Affairs  FCA 1807
State of West Virginia v Finley, No. 32961 Available at: <http://www.state.wv.us/wvsca/docs/fall06/32961.htm>
In 2006 the Federal Parliament passed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 which amended section 109 of the Commonwealth Electoral Act 1918so as to provide that any prisoner serving a full-sentence of imprisonment could not vote in federal elections. However, the impact of this amending legislation on prisoners' right to vote was recently struck out by the High Court of Australia in Roach v Electoral Commissioner.1 This returned the law to the situation existing before the 2006 amendment, whereby those prisoners serving a sentence of less than three years have the right to vote in Federal elections.
Under NSW legislation, section 21 of the Parliamentary Electorates and Elections Act 1912 stipulates that only unconvicted inmates on remand and inmates serving sentences less than 12 months are entitled to vote in State elections.
In NSW, current prisoners and some ex-prisoners are disqualified from serving on a jury. Under section 6 of, and Sch 1 to, the Jury Act 1977, a person who at 'any time within the last 10 years in New South Wales or elsewhere has served any part of a sentence of imprisonment' or a person who is 'currently bound by an order made in NSW or elsewhere pursuant to a criminal charge or conviction' (including a parole order, remand in custody, or a good behaviour order) is disqualified from serving as a juror in NSW.
The Privacy and Personal Information Protection Amendment (Prisoners) Act 2002 (NSW) withdrew the ability of prisoners and their families and associates to seek compensation for a breach of their privacy under the Privacy and Personal Information Protection Act 1998 (NSW).
In NSW, prison inmates are able to pursue civil claims for events predating their incarceration. They are also able to pursue civil claims for events that occur whilst in prison. However, there are a number of legislative barriers, specifically the Felons (Civil Proceedings) Act 1981, the Civil Liability Act 2002 and the Victims Support and Rehabilitation Act 1996, which may prevent certain inmates from pursuing claims.
Firstly, section 26C Civil Liability Act states that a criminal offender is not to be awarded damages unless the degree of permanent impairment is at least 15%. Further under section 26J, if the action is against a 'protected defendant' (includes prison authorities, prison health authorities, public health organisations, prison management companies and government departments), an amount will be withheld to pay any outstanding 'victim support payment' amount owed by the offender.
Section 54 of the Civil Liability Act also regulates awards to 'criminals' by stating that a court is not to award damages if 'the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence' and 'that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage'. This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).2
For claims against persons other than protected defendants, damages are assessed on the same basis as they would be for other members of the public although section 4 of the Felons (Civil Proceedings) Act states that those inmates, who have been convicted of committing a serious indictable offence,3 'may not institute any civil proceedings in any court except by the leave of that court granted on application'. Under section 5, leave may only be granted if the court finds that the case, based on the application, has merit.
And lastly, under section 24 of the Victims Support and Rehabilitation Act, people who have sustained their injury in the commission of a crime or while in prison are not eligible for victim's compensation unless there are 'special circumstances' as decided by a tribunal.
The Anti-Discrimination Amendment (Offender Compensation) Bill 2007 was introduced to the Legislative Assembly in May 2007. The Bill stipulates that where an offender is awarded compensation for loss or damage suffered by reason of conduct of protected defendants while they are in custody, this is to be paid into the Victims Compensation Fund rather than to the offender. This discharges the defendant from paying the compensation to the offender.
The Correctional Services Legislation Amendment Bill 2006 was introduced to the Legislative Assembly in May 2006 with the purpose of prohibiting inmates who are serving sentences for serious indictable offences or who are awaiting sentencing for such offences from providing their reproductive material4 for use, or storage, for reproductive purposes at hospitals and other places.
The Correctional Services Amendment Bill 2006 was referred to the NSW Parliament Legislative Council General Purpose Standing Committee No. 3 by the Legislative Council on Wednesday 7 June 2006 for inquiry and report. However, as the Legislative Council was prorogued in January 2007 as the result of the State election, the inquiry has expired and the bill has not progressed further through parliament.
Across the above strata, the sample will be split approximately:
Indigenous/NESB/ Non-Indigenous Anglo (11/7/22)
Age 18–44/Other age groups (30/10)
Appendix 3: Information sheets and consent forms
3.1 Prisoners participant information sheet
3.2 Ex-prisoners participant information sheet
3.3 Prisoners and ex-prisoners consent form
3.4 DCS staff participant information sheet
3.5 DCS staff consent form
Appendix 4: Interview schedules
4.1 Interview schedule for prisoners (and ex-prisoners)
Note: the interview schedule of ex-prisoners only differed to adjust for their present circumstances
Hi, thanks for agreeing to chat with me. I really appreciate your time. I'm [give first name only]. Do you mind if I get your first name so I know what to call you during the interview?
[Go to participant information and consent form. This must be read out to the interviewee and signed by both the participant and a witness before continuing]
I should just say, I am not a lawyer, but at the end, I can give you information about where to get legal help if you need it.
LEGAL ISSUES GENERALLY
1. To start off with, we are going to talk about legal problems you may have including problems that may have started before you came in. But is there anything in particular you would like to tell me about first? Perhaps some legal issue that is really bothering you or has come up recently?
[Explore fully: when the problem first occurred, what steps the person took (if any) to address it, what advice/information they sought, what they actually received, any barriers encountered, any problems in executing the advice, and the current status of the problem. Particularly interested in any action they may have taken whilst in prison and how that panned out.]
2. I'm going to ask you about legal issues that might have come up before or when you came into prison — like housing or debt problems. Just to help me understand these things
a) Can you tell me how long you have been inside for [this time, if in more than once]?
b) Are you on remand or have you been sentenced?
c) [If sentenced] How long is your sentence/how long have you got to go?
[If on remand] When is your trial?
3. So I'll just go through a number of different areas now where you might have had some legal issues. Just starting with housing, can I just ask where were you living before you came inside?
[Do not read out – use as prompts]
[If things have not been sorted out/there is a problem]
a) Since you came inside, what have you been able to do about it?
b) [If has done nothing] Why was that?
c) Where did you go for any information/advice?
d) Did they/that help?
e) Is it still a problem?
5. [If relevant] Have any arrangements been made about your gas, electricity and telephone? To stop services or suspend payments, etc.? [Explore fully with each service mentioned what they have done about these services]
a) What is happening with your mail while you are inside?
6. Did you have any problems with your accommodation while you were living there before you came inside that are still not fixed?
[For example, eviction, disputes with the landlord, blacklisting, discrimination, getting a bond back, fees, privacy issues or use of amenities]
[If there was a problem]
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
7. Where do you plan to live once you are released?
8. Have you made any arrangements for that?
9. [If release is imminent ask] Has anyone discussed your post-release accommodation with you in here?
10. Did you have a paid job before you came in? [If no, go to Q14]
[If had a job] Was that:
a) A permanent or casual/seasonal job?
b) Contract? [If yes, explore their understanding and conditions of the contract]
c) Cash in hand?
d) Own business?
11. How long had you been at that job?
12. What happened with that when you came to jail?
13. Do you have any legal issues with your job/business that are still not sorted out?
[Prompts: From job — A dispute over conditions of employment such as pay, superannuation, working hours, breach of award conditions, leave, union membership or other working conditions or lack of contract]
[Prompts: From business - commercial tenancy issues, problems with people owing you money, problems paying your business bills, employment related issues or problems with Business Activity Statements]
[If there was a problem]
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
14. Were you receiving any Centrelink benefits before you came in? [If no, go to Q16]
Abstudy/Ausstudy Disability pension
Youth allowance Age Pension
15. [If was receiving benefit] What happened with your benefit when you came in here? (Was it stopped/is it still being paid/don't know?)
16. When you came inside, did you have any outstanding problems with Centrelink about your benefits? For example, eligibility, calculation of benefit level, breaches, review on change of circumstances, allegation of fraud
[If there was a problem, ask:]
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
17. [If no job or governments benefits mentioned] Had you applied for any Centrelink benefits in 12 months before you came inside?
a) Was there any reason why you didn't apply?
b) And what happened with that?
Credit and Debt
18. I just want to ask about any debts [except Centrelink — should have been dealt with above] you may have had before you came into jail or that have been building up since you have been here. Firstly, have you got any debts owing to companies or banks, or for things such as gas, telephone or mobile phone, electricity or any others? [If no, go to Q22]
19. Are they trying to get the money from you or your family? How are they doing that?
20. Have you sought any help with that?
21. Do you owe anyone money (friends, relatives, associates, etc.)?
a) Are they trying to get the money from you or your family? How are they doing that?
b) Have you sought any help with that?
22. Does anyone owe you any money?
23. Are you trying to get the money from them? How are you doing that?
24. Have you sought any help with that?
25. Do you have any fines that are unpaid?
[If has unpaid fines]
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
g) Has this affected your driver license or car rego. [Prompt to see if this was this related to their offence?]
26. Are you or have you been married or had a de facto partner?
27. Do you have any children?
28. Have you had legal problems related to your family since you have been inside?
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
29. [If has child(ren)]
a) How are your kids being looked after while you are in here?
b) Are you happy with that arrangement?
c) If no, what can you do about that from here?
30. Do you have any arrangements/plans regarding the care of your children when you are released?
31. Just turning to the offence or offences that you are currently in jail for — what kind of legal help did you get/are you getting for this matter.
[If has lawyer]
32. Do you have any trouble contacting your lawyer about this matter?
[If no, go to Q34]
33. [If yes] What makes it difficult?
34. When you want to speak to your lawyer, what do you have to do?
35. Since you have been in jail, have you had any court hearings or other legal processes going on for this/these offence(s) [Like appeals]?
a) Were you able to attend the court? [If yes] What happened? [Explore process fully]
a) Have you tried to get information or advice for these hearings? [Prompt for what information/advice]
c) [If no] Why was that?
d) [If yes] Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
36. Have you been before the parole board this time? [If no, go to Q37]
a) Have you seen a lawyer about your parole hearing?
b) [If no] Why was that?
c) [If yes] Was that a legal aid lawyer, private lawyer, ALS?
d) Did you have any trouble seeing your lawyer?
e) Did you understand the advice they gave?
f) Were you satisfied with the advice you received?
37. Have you had any legal problems related to other criminal matters since you have been inside?
a) What is happening with them while you are inside?
b) What have you done about them?
c) [If nothing] Why was that?
d) [If something] Did they/that help?
e) Has it been sorted/is it still an issue for you?
38. Are you involved in any other legal matters — such as being a witness for someone else?
39. And what happened with that? Were you able to go to court/make a statement?
VICTIM OF CRIME ISSUES
40. Before you came inside, had you recently been the victim of a crime?
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
41. Have you had any serious threat to your personal safety (or) been the victim of a crime since being inside?
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
42. Have you had any other injuries [i.e., apart from those discussed for Q41] since you have been inside this time?
43. What happened there? What injuries have you got?
44. Did you or anyone else take any [legal] action about this?
a) What happened?
b) Where did you go for any information/advice?
c) Did they/that help?
d) Is it still a problem?
45. Is there any reason for that?
46. While you have been in prison this time, have you had a serious difficulty with access to adequate medical treatment or any treatment you've received?
a) What happened?
b) What have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
OTHER LEGAL MATTERS
47. Putting aside the things we have already talked about, did you have any other outstanding legal matters from before you came into jail? For example, a personal injury compensation claim, say from a car accident, medical negligence, something to do with wills or probate, an experience of discrimination, (on what basis?), any issues with the guardianship board?
[If yes, for each ask]
a) What happened?
b) Since you came inside, what have you been able to do about it?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
That is just about the end of my questions about legal issues.
48. Are there any other legal issues that you have/had that we haven't covered already?
49. Have you even been seriously unhappy with any legal advice you have received?
a) What have you done about that?
c) [If has done nothing] Why was that?
d) Where did you go for any information/advice?
e) Did they/that help?
f) Is it still a problem?
ACCESS TO LEGAL ASSISTANCE
50. If you want information about the law or legal processes, where do you go for help?
51. If you want legal advice for a particular problem, where do you go for help?
52. What do you personally think makes it difficult to get legal information when you are in prison?
53. What do you personally think makes it difficult to get legal advice when you are in prison?
54. Have you used the Audio Visual Link for getting any legal advice or for a legal hearing? How was that for you? [Explore fully how they felt about it and how it affected their case or their interactions with their lawyer or the court process]
Now I just wanted to ask you a few more questions just about your age and background and things like that.
55. Which of the following age-bands do you fall into?
18–24 25–34 35–44 45–54 55+
56. Aboriginal or a Torres Strait Islander?
No Aboriginal TSI ATSI No answer provided/Don't know
57. Record gender
Female Male Transgender
58. What is the highest level of education you have reached?
Didn't finish primary
Some high school
Year 10 (school certificate)
Year 12 (higher school certificate)
University degree or higher
59. Were you born in Australia?
Yes [If yes, go to Q61]
No [If not]
60. Where were you born? When did you come to Australia?
61. What is your preferred language to speak? [Record any communication issues that arose in the interview]
Now to finish off, can ask a bit about where you are in the system here.
62. How long have you been at this Correctional Centre?
63. Where were you before that?
64. What is your current classification?
65. Is this your first time in jail?
That is all I wanted to ask you. Thank-you and is there anything you would like to ask me?
4.2 Interview schedule for DCS staff
[Where appropriate, try and get examples that they have actually seen/experienced themselves — this helps to flesh out their opinions/experiences]
1. Can you tell me about your role in DCS/this correctional centre?
a) What is your role when:
2. About how often would a prisoner approach you for help with a legal problem (this includes family issues such as child custody, housing, debt issues, etc.)?
3. What types of legal problems do inmates seek your help about?
4. What type of help do they ask for/what do they ask you to do?
5. What difficulties do you have trying to assist them with these problems?
PRISONERS' LEGAL NEEDS
7. In your experience, what types of legal problems do inmates come into prison with?
8. What types of legal problems tend to come up for inmates once they are inside?
AWARENESS OF LEGAL NEEDS
9. When inmates come in, do they tend to:
a) Be aware of their legal issues that may be occurring outside of the jail?
b) Be anxious about their legal problems outside of the jail?
c) Want help with these issues?
10. When legal problems arise once they are here (such as debts, family issues):
a) Are prisoners generally aware when these problems arise?
b) How do they/can they find out about legal problems that might have come up?
c) What might prevent this information getting through to them?
d) Do inmates seek help with these issues?
11. Are there any processes in this prison to help incoming prisoners with keep their affairs outside prison in order while they are inside?
SEEKING ASSISTANCE AND BARRIERS
12. What sort of problems do inmates tend to try to deal with and what problems do they let slide?
13. If an inmate has a legal problem, technically what choices do they have for getting assistance for:
a) Legal information,
b) Legal advice,
c) Legal representation) in this prison that you know of? [e.g. Legal Aid, regular visits]
14. In your experience, do they have access to [each resource named] in practice?
15. What do you think are some of the barriers that inmates encounter in dealing with accessing those resources?
16. [If not already discussed] Do you think that many of the prisoners know of LawAccess? Is there anything done to promote LawAccess (such as notices giving the telephone number around the prison) in this prison?
17. What is the situation regarding legal visits in this prison? [That is, what are the formal arrangements regarding legal visits?]
a) Do you think it happens like that in practice or are there things that change that situation? [Try elicit whether there any differences between the formal rules that govern legal visits, and how the operation of the prison in practice may cut across access.]
18. When a prisoner has a legal problem do they tend to remain unresolved when they leave?
a) Why is that?
19. What problems do inmates face in participating in legal processes (e.g. court matters, or as defendants in matters that may be running outside (e.g. civil and family)
a) What happens when an inmate needs to go to court?
b) What are the difficulties in getting an inmate to court?
c) What types of difficulties do inmates have preparing their cases for court?
d) What kind of difficulties do inmates face when they go to court?
20. Is Audio Visual Link for legal matters used in this prison?
a) How well do you think that works?
b) What problems do you think it avoids?
c) What problems do you think it raises?
21. Are there any other particular strategies, programs, initiatives relevant to meeting legal needs of prisoners/ex-prisoners in this prison that you know of?
a) Is every inmate eligible for them/reached by them?
b) Who misses out and why?
22. Do you have any ideas for some strategies that might help prisoners avoid or deal with legal issues more effectively?
23. In your experience, what difference to dealing with legal issues does it make depending on:
TRANSITION FROM PRISON TO RELEASE
25. [If relevant] What kind of pre-release programs are there for prisoners here? Who is eligible for them and who is not? Does Centrelink visit inmates before they are released? Are there any problems with inmates accessing these pre-release services?
26. What kinds of legal issues do you think prisoners face when they are released?
[QUESTIONS FOR PAROLE OFFICERS AND THROUGHCARE STAFF]
27. What do you think are some of difficulties released prisoners have to trying to meet their parole conditions?
28. What are they most commonly breached for?
29. What are the major barriers to ex-prisoners do you think in addressing their legal issues in terms of:
31. That's all the questions I have. Is there any thing else that you think is important to understanding the legal needs of prisoners and ex-prisoners that we haven't covered?
Thank-you for your time.
4.3 Sample interview schedule: other stakeholders
Areas for discussion:
|A2JLN||Access to Justice and Legal Needs|
|ABS||Australian Bureau of Statistics|
|ADVO||Apprehended Domestic Violence Order|
|AJAC||Aboriginal Justice Advisory Council|
|ALIA||Australian Library and Information Association|
|ALS||Aboriginal Legal Service|
|ATSI||Aboriginal or Torres Strait Islander|
|AVL||Audio Visual Link|
|AVO||Apprehended Violence Order|
|BOCSAR||Bureau of Crime Statistics and Research|
|CJSN||Criminal Justice Support Network|
|CLC||Community Legal Centre|
|CRC||Community Restorative Centre|
|CSA||Child Support Agency|
|Cth AGD||Attorney General’s Department (Commonwealth)|
|DCS||Department of Corrective Services (NSW)|
|DIAC||Department of Immigration and Citizenship (Commonwealth)|
|DOCS||Department of Community Services (NSW)|
|DOH||Department of Housing (NSW)|
|DSP||Disability Support Pension|
|DUMA||Drug Use Monitoring in Australia project|
|FCA||Family Court of Australia|
|Foundation||Law and Justice Foundation of New South Wales|
|HREOC||Human Rights and Equal Opportunity Commission|
|IARC||Immigration Advice and Rights Centre|
|ICAC||Independent Commission Against Corruption|
|IDC||Inmate Development Committee|
|IDRS||Intellectual Disability Rights Service|
|IHS||Inmate Health Survey, conducted by Justice Health|
|LAQ||Legal Aid Queensland|
|LIAC||Legal Information Access Centre of the State Library|
|LRC||Law Reform Commission (NSW)|
|LRCWA||Law Reform Commission (Western Australia)|
|MIN||Master Index Number|
|MRRC||Metropolitan Reception and Remand Centre|
|NAIDOC||National Aborigines and Islanders Day Observance Committee|
|NESB||Non-English Speaking Background|
|NSW||New South Wales|
|NVivo||QSR NUD*IST Vivo software analysis program|
|OFT||Office of Fair Trading (NSW)|
|OIMS||Offender Integrated Management System|
|PAA||Prisoners’ Aid Association|
|PIAC||Public Interest Advocacy Centre|
|PLS||Prisoners Legal Service|
|RTA||Roads and Traffic Authority (NSW)|
|SAAP||Supported Accommodation Assistance Program|
|SCRGSP||Steering Committee for the Review of Government Service Provision|
|SDRO||State Debt Recovery Office|
|SORC||Serious Offenders Review Council|
|SPA||State Parole Authority (NSW)|
|SSAT||Social Security Appeals Tribunal|
|TICA||TICA Default Tenancy Control System|
|VACRO||Victorian Association for the Care and Resettlement of Offenders|
|WAIS-R||Wechsler Adult Intelligence Scale-Revised test|
|AVL||Audio Visual Link enables prisoners to appear in court on screen from prison so that prisoners do not have to physically travel to court for certain hearings. It is also used by Legal Aid for some conferences between inmates and their lawyers.|
|Bail||An agreement to attend court to answer a criminal charge. The alternative to bail is remand in custody.|
|Case management||An internal NSW Department of Corrective Services (DCS) multi-disciplinary process to assess, plan and co-ordinate options and services to meet individual inmates' needs.|
|A rating of the level of security in which an inmate must be held. Correctional centres are classified as maximum, medium or minimum security. Inmates are placed according to their classification.|
|Centrelink||The agency that administers social security payments in Australia.|
|Community Corrections||Community Corrections (also known as Probation and parole) is responsible for the management of offenders released on parole or probation within the community.|
|Court Net||The court administration system that maintains court records in NSW.|
|Deps Clerk||Short for Deputy Governor's Clerk. Historically the Deputy Governor was responsible for the custodial/security management of a prison, while the Governor was responsible for the administration of the prison. The Deputy Governor's role is now called Manager of Security. The title Deps Clerk is still used in prisons.|
|Forensic patient||An offender who has been found not guilty by reason of mental illness, unfit to be tried because of mental illness or who is awaiting trial for a serious offence where mental illness is thought to be a factor. Inmates already in custody who become mentally ill may also be classified as forensic patients.|
|Inmate Development Committee (IDC)||An elected body of inmates within correctional centres that meet to discuss and resolve inmate issues with senior management.|
|LawAccess||LawAccess is a free government telephone service that provides legal information, advice and referrals. for people who have a legal problem in NSW.|
|LIAC||The Legal Information Access Centre is a specialist legal information service run by the State Library of NSW. It provides information about the law through public libraries in NSW.|
|Lockdown||Where inmates are detained in their cells or wing areas as a result of a security or staffing problem.|
|MIN||A Master Index Number is an identity number given to an inmate when they are first incarcerated. They retain this number for all subsequent incarcerations.|
|OIMS||The Offender Integrated Management System is the internal DCS system supporting case management of inmates. It contains offender records relating to location and transfer history, classification plan, court appearance details, security, self harm details, demographic, and biometric identification details.|
|Offender Services and Programs||These programs and services for inmates in NSW prisons include education, psychogists, welfare officers, Indigenous support officers, alcohol and other drugs counsellors.|
|Parole||The formal release of a prisoner to live in the community prior to the end of their full sentence period, on the proviso that they adhere to certain conditions of that parole.|
|Pod (or Wing)||Accommodation area for inmates in prison.|
|Probation and parole||See 'Community Corrections'|
|Protective custody||The practice of accommodating inmates separately to the main inmate population for their own protection.|
|Recidivism||A return to criminal offending (or prison) after a person has been released from custody. The recidivism statistics used in this report refer to inmates who return to prison within two years of release.|
|Remand in custody||The detention of a person in custody who has been charged with a criminal offence but is yet to be tried or sentenced.|
|The practice of accommodating inmates separately to the main inmate population, to protect other inmates and staff.|
|Sentence||A term of imprisonment to be served.|
|Tenancy database||Private companies that hold information about potential tenants for use by landlords and real estate agents.|
|TICA||Refers to the TICA Default Tenancy Control System, an Australian default tenancy database, which provides information to property owners about potential tenants. See|
|The Way Forward||A model for operating correc-tional centres that involves a 'new custodial rank structure; a more efficient staffing policy based on the principle of having inmates engaged in structured activities; increased opportunities for inmates to be engaged in employment or programs; and a new staff award including flat overtime rates and no overtime rates for management.' (NSW DCS, 2004a, pp. 6–7)|
|Throughcare||Post-release planning and service provision which commences before the prisoner is due for release.|
|Unconditional release||Release with no parole conditions after a full sentence has been served.|
The authors acknowledge the assistance of the following staff of the Foundation in the production of this report: Sophie Clarke for her assistance in reviewing the literature; Sheridan Old for transcription, Hugh McDonald and Maria Karras for reviewing the draft report; Gráinne Murphy and Simon Miller for the production of this report. We also thank Hugh McDonald, Mark McPherson and Maree Porter who were part of the interviewing team for this project.
Our thanks also go to the NSW Department of Corrective Services for supporting this research and allowing access to Correctional Centres, inmates and staff. In particular, thanks to Simon Eyland and Kyleigh Heggie from Corporate Research, Evaluation and Statistics for their assistance.
The Foundation is also grateful to Eileen Baldry, Tony Vinson and Monique Hitter for reviewing an earlier version of this report, and to Antonia Lomny for editing the final document.
Finally and most importantly, the authors especially wish to thank all the people, organisations and service providers that contributed their time and insights to the current study, including staff from the NSW Department of Corrective Services. We particularly appreciate the willingness of the prisoners and those recently released from prison, who spoke with us about their legal issues and their experiences of accessing the legal system from prison. Each of these people has made a significant contribution to this research.
This report is part of the Access to Justice and Legal Needs monograph series published by the Law and Justice Foundation of New South Wales. The Foundation seeks to advance the fairness and equity of the justice system, and to improve access to justice, especially for socially and economically disadvantaged people.
The series is aimed at researchers, policy-makers, government, the legal community and others interested in legal need and access to law and justice. It is a scholarly, refereed series. Monographs are refereed by at least two appropriate external referees who are independent of the Foundation and any other organisations/authors involved in the publication.
Managing Editor: Geoff Mulherin
© Law and Justice Foundation of New South Wales, July 2008
This publication is copyright. It may be reproduced in part or in whole for educational purposes as long as proper credit is given to the Foundation.
Any opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Foundation’s Board of Governors.
National Library of Australia Cataloguing-in-Publication data:
Cover image: Quang Duc Nguyen, Birds on a Wire, 2008, courtesy of Boom Gate Gallery, Long Bay Correctional Centre.
Privacy disclaimer. No data which would allow identification of individual service users has been used