As the prison system faced the extraordinary risks associated with Covid-19, one state gave its commissioner the power to release low-risk prisoners. He hasn’t used it once. By Wendy Bacon.

NSW fails to parole low-risk prisoners despite Covid-19 provision

NSW prisoners having virtual visits at Wellington Correctional Centre.
NSW prisoners having virtual visits at Wellington Correctional Centre.
Credit: AAP / Corrective Services NSW

This is part two of a two-part series.

Two years into the pandemic, as Covid-19 restrictions are easing, thousands of prisoners are still in harsh lockdown. Work, psychological and educational programs have been suspended. Some with severe mental-health conditions and addiction issues have been locked up without therapeutic medication or other treatment.

In New South Wales and Victoria, face-to-face legal and family visits have been suspended for months. Audiovisual visits are booked, then cancelled. Recently, in regional NSW, legal consultations and even court appearances have been cancelled because of Covid-19 restrictions. Hundreds of prison officers have been off work with the virus or in isolation at home while others work huge shifts. Despite all the restrictions, there are still hundreds of fresh infections each week.

There could have been another way. From early 2020, governments were advised by health experts that prisoners were especially vulnerable to the pandemic. Social distancing is difficult in prisons without isolating people, which is not possible in overcrowded prisons and is in any case regarded as a form of torture. Many prisoners have underlying health conditions and are in other ways disadvantaged. In Australia, advocates and lawyers argued for the release of low-risk prisoners, as had been done in the United States, Canada, China and Iran.

Professor of law at the University of Technology Sydney Thalia Anthony, who works with the First Nations grassroots organisation Deadly Connections, argued that “decarceration” of low-risk prisoners was the safest option. The Human Rights Law Centre and Aboriginal Legal Service also strongly advocated this approach. Justice Action, an advocacy group for Australian prisoners, wrote to every Australian attorney-general suggesting legislation to provide for release of low-risk prisoners.

The only government that responded positively was NSW, which included provisions in its COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act that allowed the commissioner of Corrective Services to conditionally release on parole low-risk prisoners, including prisoners with high health risks and prisoners nearly at the end of their sentences. There are thousands of prisoners that meet these criteria in the prison system. The measures were constructed cautiously with sexual, violent and some other offenders excluded.

At the time it was seen as a win for the human rights advocates. Once passed, however, the provisions were quietly shelved. It is now clear Commissioner Kevin Corcoran has no current intention of releasing anyone early from prison. The provision has not been used.

In response to questions, a spokesperson said, “This measure can only be used if the commissioner deems it absolutely necessary for the safety and effectiveness of our prisons in response to Covid-19. There are no immediate plans to release anyone using this emergency measure, but if it does become necessary, it will be done on a case-by-case basis and community safety will always be our No. 1 priority.”

The NSW minister for Corrections, Geoff Lee, endorsed the commissioner’s approach. In response to questions, he told The Saturday Paper: “Due to the efforts of Corrective Services NSW staff, the impact of Covid-19 within the NSW correctional system has been minimised and the commissioner has not found it necessary to use the provisions.”

While it is true very few NSW prisoners and prison officers have died of Covid-19, others reject the description of impacts as “minimised”. On Wednesday, Greens MP David Shoebridge told NSW Parliament, “Something is deeply wrong in prisons in NSW – out of sight cannot be out of mind.”

Shoebridge’s examples included a First Nations man who had put in more than 40 requests to see a psychiatrist and had not even received a response. Another inmate with autism entirely relies on a cellmate to care for him. He has not been able to have an audiovisual prison visit with his family for more than a month. Shoebridge also described people with Covid-19 being transferred without being told they are positive and lawyers repeatedly reporting being unable to properly consult with clients for months at a time.

Nadine Miles, the acting chief executive at the NSW Aboriginal Legal Service, says the service has “very serious concerns” about the health of prisoners “stuck in isolation without being able to do programs or visits”. She says prisoners are being exposed to unnecessary risks and there is no shortage of prisoners who meet the criteria for release, including “prisoners who have never committed violent offences, and some who are there because they breached orders”. She called on the NSW government to do “the work to develop reasonable release principles”.

Professor Thalia Anthony is frustrated by the lack of action. She argues that given many protections built into the legislation to minimise community risk, release would “enhance safety because it could have avoided prison Covid outbreaks and their spread to the general community”.

Instead, she says, punitive approaches have “separated families and that in itself diminishes wellbeing and creates a more fractured society”. She says that instead of relying on “harsh tactics like solitary confinement, prolonged lockdown and suspension of programs, work and visits … we should be able to provide for social distancing by having less prisoners rather than having continual lockdowns in which people are kept in unventilated cells without fresh air”.

Anthony and other legal experts argue that if prison programs have a purpose, removing them indefinitely must cause damage to prisoners’ mental health and prospects of not reoffending, which in turn exposes the public to higher risks in the long run.

“It’s not just Covid that presents a risk of deaths in custody, it’s also the risk from harsh prison conditions – both while in prison and upon release,” she says. “Stress arising from enduring lockdown in cells, sometimes for days without showers and human contact, is also a threat to wellbeing and life.”

The Andrews Labor government has also ignored recommendations from the Victorian Aboriginal Legal Service and other experts to set in place a system for releasing low-risk prisoners and to reform its tough bail laws, which are leading to more remand prisoners being incarcerated. As in NSW, face-to-face visits have been cancelled for months and audiovisual visits are on and off. Prisoners have gone days with no change of clothes and programs are suspended.

Nerita Waight, the chief executive of the Victorian Aboriginal Legal Service, said, “The Andrews government has mostly ignored our recommendations and chosen to use punitive measures like solitary confinement. Many of the Aboriginal people held in prison are on remand due to unfair laws and are unlikely to receive a custodial sentence, which makes their isolation all the more horrifying. The Andrews government’s decision to ignore the expert advice increases the risk of further outbreaks and will lead to long-term issues that will be hard and expensive to fix, and some that result in self harm and/or suicide are impossible to repair …

“We have continually warned the government about the mental-health harm being experienced by Aboriginal people in prison and the long-term effects of this, coupled with community and cultural isolation.”

She accuses the government of managing prisons in a way that “puts the health and lives of our people at risk” and says that “data shows an increase in the number of self-harm incidents by Aboriginal and Torres Strait Islander people in Victoria’s prisons”.

While governments insist their measures are keeping prisoners and the community safe, those few prisoners who have been fortunate enough to appear on bail and sentencing applications before NSW and Victorian judges in recent months have discovered they are aware of harsh conditions.

A review of recent judgements, carried out by The Saturday Paper, shows that judges are accepting submissions that the conditions in prison are extremely difficult and harsh. This has led to reduced sentences or the granting of bail in some cases. They are also concerned about prisoners being at risk of spending more time in prison on remand than they would for any likely sentence. Even where the risk has been considered too high, judges have accepted that these are factors that need to be considered in making decisions.

Perhaps the strongest legal statement about the crisis in the system was made in November last year by Supreme Court Justice Lex Lasry when he published his reasons for releasing a man whose parents were both sick with Covid-19. Lasry found that significant delays and uncertainty could mean “the remand of a prisoner takes on the appearance of an indefinite and unjust pretrial detention”. He warned that the backlog of pending cases awaiting trial had grown to alarming proportions and that “unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this state is in crisis, requiring a response from the courts …”

Lasry found prisoners had lost contact with their families and work opportunities and were being “subjected to extremely difficult conditions in the cause of preventing infections”.

It seems some judges, if not state government politicians, are aware of a point at which deliberately choosing punitive measures in dealing with prisoners jeopardises the government’s own “duty of care” – as well as basic human rights. 

Additional research by Lila Pierce

Read part one: Prisoners suffering under punitive COVID-19 measures.

This article was first published in the print edition of The Saturday Paper on February 26, 2022 as "Out of sight".

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Wendy Bacon is a journalist. She was a professor of journalism at the University of Technology Sydney.

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