The Law Handbook 13th EDITION - YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

 
The Law Handbook
YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

                  13th EDITION

      REDFERN LEGAL CENTRE PUBLISHING
Published in Sydney
by Thomson Reuters (Professional) Australia Limited
ABN 64 058 914 668
100 Harris Street, Pyrmont NSW 2009

First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978.
First published as The Law Handbook in 1983
Second edition 1986
Third edition 1988
Fourth edition 1991
Fifth edition 1995
Sixth edition 1997
Seventh edition 1999
Eighth edition 2002
Ninth edition 2004
Tenth edition 2007
Eleventh edition 2009
Twelfth edition 2012
Thirteenth edition 2014

Note to readers: While every effort has been made to ensure the information in this book is as up to date and as
accurate as possible, the law is complex and constantly changing and readers are advised to seek expert advice
when faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used as
a substitute for legal advice.

National Library of Australia
  Cataloguing-in-Publication entry

The law handbook : your practical guide to the law in NSW / Redfern Legal Centre.
  13th edition.
  Includes index
  ISBN: 9780455234557
  Law – New South Wales – Handbooks, manuals, etc
  Legislation – New South Wales
  Jurisprudence – New South Wales – Handbooks, manuals, etc
  Civil rights – New South Wales – Handbooks, manuals, etc

  349.944

© 2014 Thomson Reuters (Professional) Australia Limited

  This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the
  Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying,
  photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior
  written permission. Inquiries should be addressed to the publishers.

This edition is up to date as of 1 October 2014.

  The Law Handbook is part of a family of legal resource books published in other states:
  Vic: The Law Handbook by Fitzroy Legal Service, ph: (03) 9419 3744
  SA: The Law Handbook by the Legal Services Commission of SA, ph: (08) 8111 5555
  Qld: The Law Handbook by Caxton Legal Centre, ph: (07) 3214 6333
  Tas: The Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500
  NT: The Law Handbook by Northern Territory Legal Aid Commission and Darwin Community Legal Services,
  ph: (08) 8982 1111

                             Editor: Ben Brocherie
                             Product Developer: Karen Knowles
                             Publisher: Robert Wilson
                             Indexed and proofread by: Puddingburn Publishing Services

                             Printed by: Ligare Pty Ltd, Riverwood, NSW

                             This book has been printed on paper certified by the Programme for the Endorsement
                             of Forest Certification (PEFC). PEFC is committed to sustainable forest management
                             through third party forest certification of responsibly managed forests.
35
                         Prisoners
             Will Hutchins   Prisoners Legal Service, Legal Aid NSW

                               Contents
[35.20]    NSW prison population         [35.270]   Complaints by prisoners
[35.70]    In jail                       [35.280]   Appeals and legal actions by
[35.170]   Communication with                       prisoners
           prisoners                     [35.300]   Sentences and parole
[35.220]   Prison discipline             [35.330]   Release
1114       The Law Handbook

[35.10] Corrective Services NSW controls                                       Legislation
over 30 correctional centres throughout                   The main legislation dealing with prisoners and prisons
NSW, from maximum security jails to open                  in NSW is:
prison farms and forestry camps.                            • the Crimes (Administration of Sentences) Act 1999
  Anyone held in a NSW jail is in the                         (NSW)
custody of the general manager of that jail                 • the Crimes (Administration of Sentences) Regulation
(previously called the prison governor). The                  2014 (NSW)
general manager and other prison officers                 The Crimes (Administration of Sentences) Act empowers
are employed by Corrective Services, and                  state officials to run prisons, sets out special offences
the responsible minister is the Minister for              that can be committed by prisoners, establishes disci­
Justice.                                                  plinary procedures to punish prisoners who break the
  Since February 1991, the Commissioner of                rules and deals with parole and other matters relating to
Corrective Services has had authority to                  prisoners and carrying out sentences. The Regulation
engage private corporations to operate and                sets out the rules for various matters discussed in this
manage prisons. To date, only two jails are               chapter, such as classification, visits and prison
privately run, Junee (1993) and Parklea                   discipline.
(2009).

[35.20]       NSW prison population
Just before the Sentencing Act 1989 (NSW)                 prisoners. Note, there is often a delay of a
(which introduced so-called truth in sen­                 week in police cells before a bed becomes
tencing) began operation in September 1989,               available in jail.
the full-time prison population in NSW was                   Men arrested and taken before a magis­
about 4800 (excluding prisoners serving                   trate in or near Sydney and remanded in
sentences by periodic detention).                         custody are taken to the Metropolitan Re­
  By May 2014 the prison population had                   mand and Reception Centre (MRRC) at
grown to just over 11,000. By September                   Silverwater. Women are taken to Silverwater
2014, the population had reduced to 10,500,               Women’s Correctional Centre.
of whom just over 700 were women.                            They can apply to the Supreme Court for
                                                          bail. The jail has forms for this. The Bail Act
                                                          2013 (NSW) was substantially amended as
               Indigenous prisoners                       from 20 May 2014 and an application for
Aboriginal people, both men and women, are over­          bail by an inmate is now called a release
represented in NSW prisons. They are 16–17% more likely   application.
to be in jail than non-Indigenous people. (For more          Remand prisoners are held separately
information, see chapter 2, Aboriginal people and the     from sentenced prisoners.
law.)

                                                           Remand prisoners who need psychiatric help
[35.30] People on remand                                  A medical officer interviews remand prisoners when they
                                                          come into jail. If they appear to need psychiatric
A person who is arrested and not given                    assistance, they may be sent to the Long Bay Prison
police bail (see chapter 4, Arrest, interroga­            Hospital or the Mental Health Screening Unit at the
tion and bail) is held in police cells until              MRRC.
brought before a magistrate.
   If bail is not granted, or the person cannot
meet bail conditions (such as payment of a                [35.40] Women prisoners
cash deposit), the person is taken to jail.               In September 2014, the full-time prison
Prisoners in this situation are called remand             population in NSW was 10,500, of whom
35 Prisoners    1115

just over 700 were women. They are held at                  The rules for dealing with forensic and
Silverwater Women’s Correctional Centre,                  correctional patients are in:
Emu Plains Correctional Centre, Dillwynia                 • the Mental Health (Forensic Provisions) Act
Correctional Centre at Windsor, Mid North                    1990 (NSW), and
Coast Correctional Centre at Kempsey and                  • the Mental Health Act 2007 (NSW).
Wellington Correctional Centre.                           These rules mean that these patients may be
   A few, either on remand or serving short               held in prisons, hospitals and other places
sentences, are held in local jails in the                 (subject to compliance with correct proce­
country.                                                  dures and a court order).

Facilities for women with children                        Forensic patients
There are limited facilities at Emu Plains for            By s 46 of the Mental Health (Forensic
women prisoners to keep their children up                 Provisions) Act, forensic patients must be
to school age with them in jail, and they can             reviewed by the Mental Health Review
apply under s 26 of the Crimes (Administra­               Tribunal every six months. The Tribunal
tion of Sentences) Act to serve their sentence            may make orders about their continued
with their children in an approved place.                 detention, care or treatment; or, their release
                                                          into the community conditionally or uncon­
[35.50] Child offenders                                   ditionally (s 47). They can be released on a
Generally, offenders aged under 18 years are              community treatment order (s 67).
not held in correctional centres. They are                  Those serving a limiting term, set by the
held in institutions and detention centres                court, cease to be a forensic patient at the
under the Children (Criminal Proceedings) Act             end of the term and must be released from
1987 (NSW) and the Children (Detention                    prison or hospital. They may also be re­
Centres) Act 1987 (NSW). Under limited                    leased earlier.
circumstances a young person may be trans­
ferred from a detention centre to an adult                Correctional patients
prison (Children (Detention Centres) Act, ss 28,          A prisoner may be transferred from a prison
28A, 28B, 28BA); and a young person who                   to a mental health facility while on remand
has committed a serious offence may be                    or while serving a sentence (s 55). The
sentenced to imprisonment rather than de­                 Mental Health Review Tribunal must review
tention in a detention centre.                            the prisoner transferred as soon as possible
                                                          (s 59); and, if they remain a correctional
Juvenile offenders are discussed in chapter 8, Children   patient, every six months (s 61).
                   and young people.                         A correctional patient’s sentence keeps
                                                          running and they are still eligible for release
                                                          on parole (s 60(3)). Parole is often granted
                                                          together with a community treatment order.
[35.60] Prisoners who are                                 If the tribunal classifies the person an
forensic patients or                                      involuntary patient (s 65), they cannot ob­
                                                          tain parole.
correctional patients                                        A correctional patient ceases to be such if
Due to a mental illness or condition, some                transferred back to prison or released on
prisoners are found by a court to be unfit to              parole or the sentence expires (s 64) or the
stand trial, or not guilty because they are               tribunal makes them an involuntary patient
mentally ill, or sentenced to a limiting term.            (s 65).
They are known as forensic patients. Some                    The Mental Health Advocacy Service (part
prisoners while on remand or after being                  of the Legal Aid Commission) provides
sentenced, are transferred to a mental health             representation for forensic and correctional
facility. They are known as correctional                  patients who wish to be represented before
patients.                                                 the Mental Health Review Tribunal.
1116       The Law Handbook

                                     Prisoners with HIV/AIDS or hepatitis
Government policy is that prisoners with HIV/AIDS or       tration of Sentences) Act, s 160).
hepatitis are integrated into the prison population, and   Strategies for containing HIV/AIDS and hepatitis
other prisoners are not informed of their condition. An    The government's strategies for containing the spread
infected prisoner whose condition is known can be at       of HIV and hepatitis in jails are:
risk, and should ask to go on protection.
                                                             • methadone programs
Infected inmates who threaten other inmates or prison        • the supply of bleach for sterilising needles
officers with assault or infection can be segregated.
                                                             • inmate peer support groups
An inmate whose infection reaches a crisis point is
                                                             • education for prison officers and inmates
transferred to the Life Styles Unit at Long Bay Jail. An
inmate who is near death can apply to the Parole             • counselling and treatment for those infected
Authority for early release to parole (Crimes (Adminis­      • the supply of condoms and dental dams.

In jail
[35.70] Arrival                                            prepared (cll 15 and 16) and the prisoner is
                                                           given a security classification (cl 24 for male
On arrival at the reception prison (generally,             prisoners and cl 25 for female prisoners).
the Metropolitan Remand and Reception
Centre for men and Silverwater Women’s
Correctional Centre for women), prisoners                                 Levels of jail security
are first taken into a reception room, where                At any time about 37% of convicted prisoners are in
their names are called and they are told the               secured institutions, about 34% are in variable institu­
time they are to serve.                                    tions and some 29% are in open institutions – often
                                                           loosely referred to as maximum, medium and minimum
   They are stripped of all their personal
                                                           security jails.
possessions, including civilian clothes, which
                                                           Most major jails are secured (maximum security) and/or
are put in storage (they are usually allowed
                                                           variable (medium security). Forestry camps and some
to keep wedding rings and watches), and                    centres are open without walls or fences (minimum
searched.                                                  security).
   A physical description is taken. The pris­
oner is weighed and measured, and marks
and blemishes are noted. The prisoner is
issued with prison clothing and given a                    High risk categories / maximum
six-figure prison identification number                      security
(known as a MIN) unless they already have                  Categories AA, A1 and A2 for males and
one from previously being in jail.                         categories 5 and 4 for females are prisoners
   The prisoner is assessed by a medical                   considered to present a special risk to good
officer, a welfare officer and a health worker             order and security, and are confined by a
to assess any special needs, and meets with                secure physical barrier with towers. Classifi­
a prison committee which explains jail                     cations AA and Category 5 are for inmates
procedures.                                                who are regarded as representing a special
                                                           risk to national security.
[35.80] Classification                                        The commissioner may also designate a
Once sentenced, prisoners are assessed un­                 prisoner as high security, extreme high security
der the Crimes (Administration of Sentences)               or extreme high risk depending on the per­
Regulation 2014 (NSW) and a case plan is                   ceived level of danger to other people, threat
35 Prisoners        1117

to good order and security, and, threat to the             ations into account than does the more
peace, order or good government of the                     remote case management committee at
State (cl 27).                                             Silverwater, to which it makes a
                                                           recommendation. A prisoner may request a
Medium risk categories / medium                            review of classification or case plan at any
security                                                   time if he or she can present information
Category B for males and category 3 for                    which was not previously available or can
females are prisoners to be confined by a                   demonstrate that they were denied proce­
secure physical barrier.                                   dural fairness when the decision was made
                                                           (cl 32).
Low risk categories / minimum security                     Public interest inmates
Categories C1, C2 and C3 for males and                     Prisoners regarded by the Commissioner of
categories 1 and 2 for females are prisoners               Corrective Services as public interest inmates
who need not be confined by a physical                      must be considered by a special committee
barrier, or constantly supervised.                         if they are seeking a C3 (males) or category 1
                                                           (females) classification (ie minimum security
   Conviction of escape or attempted escape                which involves unescorted leave).
                                                              They are generally not eligible for C3 or
Category E1 and E2 prisoners (there is no category D)
are those who have been convicted of escaping or           category 1 classification until they are in the
attempting to escape (cl 26). They cannot:                 last 12 months of their minimum term.
 • be moved to minimum security institutions               Serious offenders
 • enter work release programs or go on day or
                                                           A serious offender is a person serving a life
   weekend leave
 • progress through the classification system except on    sentence, a sentence for murder, or a person
   special recommendation that they be reclassified.       not eligible for parole until at least 12 years
                                                           has been served (s 3).
                                                              Serious offenders are assessed by the
                                                           Serious Offenders Review Council (SORC)
Review of classification                                   which makes a recommendation to the
Except for serious offenders (see below), a                Commissioner in relation to classification
prisoner’s classification is reviewed at least              and placement. If a serious offender is being
once every 12 months (cl 15) by a program                  considered for C3 (males) or category 1
review committee, which usually consists of a              (females) classification (ie minimum security
programs officer, an industrial officer, a                 which involves unescorted leave), notice
psychologist and a parole officer. The com­                must be given to any victim of the offender
mittee meets with the prisoner, and has                    recorded in the Victims Register (Crimes
more opportunity to take personal consider­                (Administration of Sentences) Act, s 67).

                                                Prison subculture
The new inmate soon finds out what terms must be used      have HIV, are from different cultures, have an intellectual
when speaking with other inmates about themselves,         disability or are mentally ill are quite likely to meet with
warders and various other matters. Prisoners who do not    harassment and, possibly, violence.
do so are seen as suspect and not to be trusted. Once      Prisoners who feel that they are in danger can ask to go
this happens, the inmate tends to be isolated by other     on protection where they are separated from main-
prisoners, and sometimes assaulted.                        stream prisoners, but work and education opportunities
Some new prisoners are not accepted into the prison        are not as good, and they become labelled for being on
subculture because of their particular crime.              protection.
Prisoners can expect to experience the same sort of
discrimination in jail as out of it. People who are gay,
1118     The Law Handbook

[35.90] Segregation and                           must be an order from the Commissioner of
                                                  Corrective Services before a prisoner can be
protective custody                                transferred.
Prisoners can be isolated against their
wishes:                                           Reasons for transfer
1. Under s 10 of the Crimes (Administration of    The reason for removal must be that:
   Sentences) Act, the general manager may        • the prison is to be shut down or requires
   direct that an inmate be held in segre­          structural changes, or
   gated custody if of the opinion that it is     • there is an outbreak or danger of conta­
   necessary to secure the personal safety of       gious or infectious disease, or
   any person, the security of a correctional     • the prison is overcrowded, or
   centre or the good order and discipline        • it is necessary to separate different cat­
   within a correctional centre.                    egories of prisoners, or
2. Under s 11, the general manager may            • for any other reason specified in the
   direct that an inmate be held in protective      commissioner’s order.
   custody if of the opinion that the associa­
   tion of the inmate with other inmates          Problems with transfers
   constitutes a threat to the personal safety    Transfers often cause problems for prisoners.
   of the inmate.                                 Transfers from Sydney to country jails effec­
The purpose of segregation                        tively prevent prisoners from seeing and
                                                  talking with friends, relatives and lawyers.
A prisoner can be placed in segregation
                                                  Moves are often made at short notice, giving
without being charged with an offence
                                                  prisoners little chance to notify people in
against prison discipline, but often both
                                                  advance or opportunity to put submissions
occur together.
                                                  against the transfer. In some cases, moves
   Corrective Services does not regard segre­
                                                  may disrupt a prisoner’s education or train­
gation as punishment but as a means of
                                                  ing program, and they can be used as a form
preserving good order and discipline in the
                                                  of harassment.
jail. Segregation cannot be imposed as a
punishment for a prison offence, though a
prisoner can be confined to their cell for up      [35.110] Medical care
to seven days by the general manager, and         Medical services in NSW jails are provided
for 28 days by a visiting magistrate (see         by Justice Health, which is responsible to the
Visiting magistrates courts at [35.240]), for a   Minister for Health.
prison offence.
                                                  Medical services
Applying for review                               Prisoners must be supplied with medical
A prisoner whose period in segregation or         attendance (Crimes (Administration of Sen­
protective custody exceeds 14 days may            tences) Act, s 72A) and must be examined as
apply to the Serious Offenders Review             soon as practicable after being received into
Council for a review hearing (s 19). The          a jail (Crimes (Administration of Sentences)
prisoner is entitled to be legally represented    Regulation, cl 284). Medical treatment is
at the hearing. The Legal Aid Commission’s        generally provided by nurses at jail clinics,
Prisoners Legal Service provides solicitors       and medical practitioners who visit jails.
(free of charge) to appear. At the hearing, the   These are either employed by Justice Health
Review Council may revoke, confirm or              or paid to attend as visiting medical officers.
amend the direction (s 22).
                                                  Hospital treatment
[35.100] Transfers                                Prisoners who need hospital treatment may
The authority to transfer prisoners from one      be taken to the Long Bay Prison Hospital, or
prison to another is contained in s 23 of the     to a public hospital close to the jail. No
Crimes (Administration of Sentences) Act. There   surgery is carried out at the prison hospital.
35 Prisoners    1119

              DNA testing of prisoners                        Problems for women prisoners
                                                              The arrangements discussed above apply to
The Crimes (Forensic Procedures) Act 2000 (NSW) com­
                                                              both men and women. However, in relation
menced on 1 January 2001. The Act authorises the taking
of DNA samples from all prisoners serving a sentence for      to women prisoners, there is limited access
a serious indictable offence (ss 61–75), defined as an        to gynaecological services, or prenatal and
indictable offence punishable by a maximum of five or         antenatal care needed by a pregnant woman.
more years' imprisonment.
The definition does not depend on the actual sentence         Complaints about medical services
imposed but on the maximum that could be imposed.             In addition to other avenues of complaint
The definition is therefore very wide, and catches most       (see Complaints by prisoners at [35.270]),
prisoners.                                                    written complaints about medical services
The procedure                                                 can be made to the NSW Health Care
The sample can be taken by buccal (mouth) swab; hair          Complaints Commission.
sample (other than pubic hair); hand, finger or foot print;
or blood sample (see s 61). A hair sample or self-
administered mouth swab are the usual methods.                [35.120] Education
Prisoners to be tested are asked by police if they            While 70% of prisoners have no formal
consent to a sample being taken by mouth swab.                educational qualifications, only about one in
If consent is not given                                       five are catered for by educational programs
If consent is not given, the police can issue an order on     in jail. Many prisoners are illiterate, and
the spot (s 70) for taking a sample. Prisoners cannot         others cannot speak fluent English. The
refuse to comply because police may then use “reason­         Commissioner may provide services and
able force” to obtain the sample (s 47).                      programs, including educational and voca­
Police cannot issue an order for the sample to be taken       tional (Crimes (Administration of Sentences)
by a blood test: this can only be done by a court.            Regulation, cl 60).
Arguably, there is more legal protection if consent is not
given. A prisoner is entitled to say “I do not consent but    Courses provided in jails
I will comply if an order is produced”. When police make      Some courses are provided to teach elemen­
an order, they must record the date, time and reasons,        tary skills and provide job training. Funding
and make a copy available to the prisoner (s 73).             cutbacks from time to time have led to
                                                              problems in meeting even these basic needs.

                                                              Courses run by other institutions
Enforced treatment                                            Prisoners may enrol in correspondence
Prisoners can be made to have treatment if                    courses with the Open Training and Educa­
the Director of Justice Health is of the                      tion Network (run by TAFE) and
opinion that it is necessary to save the                      universities, and, those classified minimum
prisoner’s life or prevent serious damage to                  security may get leave to attend classes
health (Crimes (Administration of Sentences)                  outside the jail (Crimes (Administration of
Act, s 73).                                                   Sentences) Act, s 26).
   The Supreme Court has held that a
prisoner on a hunger strike can be force-fed                  Prisoners with intellectual disabilities
if their condition becomes critical.                          Facilities for prisoners with intellectual dis­
                                                              abilities are limited. These prisoners have
Psychiatric services                                          special learning needs, and may be particu­
Psychiatric services are provided by Justice                  larly vulnerable in the prison system.
Health staff and visiting medical officers,                      There are development units for prisoners
including psychiatrists, who visit the jails.                 with intellectual disabilities at certain
Nurses at some jails have some psychiatric                    prisons. These units have formal education
training. Many prisoners with serious psy­                    and work programs. Corrective Services has
chiatric illnesses are held in special wards at               a section called, Statewide Disability Ser­
the Long Bay Prison Hospital or the Metro­                    vices which co-ordinates programs for intel­
politan Remand and Reception Centre.                          lectually disabled offenders.
1120       The Law Handbook

[35.130] Prisoners who are                                    employer–employee relationship, workers' compensa­
                                                              tion and industrial awards do not apply, and the com­
parents                                                       missioner decides what wages to pay from money
                                                              provided by parliament for the purpose (s 7).
There are no special rights for prisoners who
are parents. In relation to care proceedings
by Department of Community Services,
contact the Prisoners Legal Service at the                    Prisoners who are unable to carry out work
Legal Aid Commission for advice and pos­                      The general manager may make an order
sible representation.                                         directing a prisoner to carry out work, but a
   Female prisoners can have young children                   prisoner is not required to carry out the
live with them at Emu Plains Correctional                     work if they are not capable of doing so
Centre.                                                       (s 6).
   If the prisoner is serving a sentence for a
sexual offence, the commissioner may bar                      Work release
visits by persons under the age of 18 years
                                                              There are around 100 prisoners on work
(Crimes     (Administration    of    Sentences)
                                                              release, living in jail and going outside
Regulation, cl 106).
                                                              unescorted to work in the community each
                                                              day. These prisoners receive normal wages,
[35.140] Employment                                           and pay the jail for weekly board. To be
The general manager of a correctional centre                  eligible, a prisoner must be minimum secu­
may make an order directing a convicted                       rity C3 (male) or category 1 (female)
inmate to carry out work (Crimes (Adminis­                    classification. In addition to developing
tration of Sentences) Act, s 6).                              work skills and providing savings for
   About half the people in prison have jobs;                 release, work release improves a prisoner’s
for example, in manufacturing workshops
                                                              chance of getting parole.
(such as metal, timber and printing) in the
                                                                 The program is only available, however,
jail.
                                                              at certain jails.
Prison industries jobs
There are various “prison industries” jobs                    Craftwork
associated with the internal servicing of the                 Some prisoners are allowed to pursue hob­
jail, from work in the kitchens and bakeries                  bies such as painting or pottery. Their work
to sweeping the yards.                                        is sold through galleries at some jails. The
   Other prisoners work on prison farms and                   department gets a percentage of the sale
in forestry camps. These prisoners are paid,                  price and the rest goes into the prisoner’s
but the pay is well below award rates.                        private account, which is maintained by the
   In some jails there are arrangements for                   department. The prisoner can draw on this
external industries to have a workplace                       account.
within the jail. A prisoner working in these
will receive higher pay but still not equal to                          If a prisoner is injured at work
normal pay.
                                                              Prisoners do not have the benefit of workers' compensa­
Where work is not available                                   tion legislation, but a prisoner injured at work may use
Those who want to work but cannot because                     common law remedies (see chapter 3, Accidents and
there are no jobs receive around $10.50 per                   compensation).
week (paid into their personal accounts at                    Workplace safety in NSW is mainly regulated by the Work
the jail).                                                    Health and Safety Act 2011 and Work Health and Safety
                                                              Regulation 2011 (see chapter 24, Employment). Correc­
             Conditions of employment                         tive Services, as the occupier, should be bound by these
                                                              laws to protect working prisoners, but the law is not
Prisoners do not have employment contracts with the
                                                              clear on this point.
department – work is done on the orders of the prison's
general manager (s 6). The legal result is that there is no
35 Prisoners      1121

[35.150] Voting rights                             disposed of (Crimes (Administration of Sen­
                                                   tences) Regulation, cl 9).
Federal elections                                     What private property is allowed in cells
Under the Commonwealth Electoral Act 1918,         is specified by departmental policy accord­
anyone serving a prison sentence of three          ing to inmates’ imprisonment status and
years or longer is ineligible to vote in federal   length of sentence.
elections (s 93).
                                                   Remand and short-term prisoners
State elections                                    Unsentenced inmates and those serving less
Under the Parliamentary Electorates and Elec­      than six months are limited to one container
tions Act 1912 (NSW), people serving prison        of approximately 68 litres capacity.
sentences of 12 months or more are disquali­
fied from voting in NSW elections (s 25).           Longer-term prisoners
                                                   Sentenced prisoners with a term longer than
[35.160] Property                                  six months are allowed two containers.
On being received into jail, a prisoner must
surrender all property that is then in their                        Additional items
possession and a record is kept (Crimes            Certain items are exempt from the volume restrictions.
(Administration of Sentences) Regulation, cll 7    These include:
and 10). The general manager will decide            • a television set
                                                    • a set of private clothes
which items may be returned to the prisoner         • legal documents relating to a pending court matter
for use at the centre or retained for return on     • one art, craft or hobby item
release from custody, or cannot be retained         • clothing or materials required for work release.
at the centre and must be collected or

Communication with prisoners
[35.170] Letters                                   Christmas cards, which they must buy
                                                   themselves.
Lawyers                                            Censorship
There is no limit on the number or length of       The regulations provide that letters and
letters that may pass between a prisoner and       parcels sent to and by a prisoner must not
their lawyer (cl 118).                             be censored (cl 110).
                                                      However, the general manager of a jail
Confidential letters from lawyers
                                                   has the authority to open, inspect, read and
Letters from lawyers are privileged (cl 113).      confiscate a parcel or letter if it contains
To assert this privilege, the letter to the        threatening, offensive, indecent or obscene
inmate must be put by the lawyer in a              matter (cl 112). There are restrictions on
sealed envelope addressed to the prisoner          correspondence with Category AA, Cat­
and attached to a covering letter addressed        egory 5 and extreme high-risk inmates (see
to the general manager of the jail, advising       cll 115, 116 and 117).
that the envelope contains legal correspon­
dence and should be handed to the prisoner         Privileged correspondence
unopened.                                          Some letters can be opened only by the
                                                   prisoner (cl 113). These are letters to and
Friends and relatives                              from exempt bodies which includes:
There is a limit on the number of letters          • the Ombudsman, ICAC, Privacy Com­
prisoners can send out. They may send                 missioner and Legal Aid NSW
1122        The Law Handbook

• a member of parliament, a lawyer or a                           Urgent calls
   police officer.                                                Prisoners who urgently need to contact a
The letter must be contained in an envelope                       lawyer or close relative may be able to get a
addressed to the inmate but sent within                           welfare officer to make a call, or persuade
another envelope addressed to the general                         the general manager of the prison to allow
manager together with a letter requesting                         them to make a long distance call.
that the enclosed envelope be delivered to
the inmate without being opened, inspected                        The Legal Aid Commission's Prisoners Legal Service
or read.                                                          (“PLS”) accepts reverse charge calls from prisoners, or
                                                                  more easily, contact can be made by phoning Law
          The effect of claiming privilege                        Access on the CADL phone system (02#) and asking to
                                                                                   be transferred to PLS.
Where privilege is claimed, only the prisoner can open
the letter. However, the general manager can require the
prisoner to open it in their presence. If there is anything
in the letter that the prisoner is not entitled to have, the      [35.190] Communication
general manager may take the letter and its contents.
                                                                  through Welfare or Services
The Ombudsman                                                     and Programs Officer (SAPO)
All letters addressed to the Ombudsman or                         Welfare officers or Services and Programs
coming from the Ombudsman’s Office to a                           Officers (SAPO’s) in the larger jails will
particular prisoner should pass through the                       sometimes make contact with friends, rela­
prison department unopened, although the                          tives and lawyers on behalf of prisoners.
department will become aware of the com­                          Families can ring a welfare officer or SAPO
plaint when it is followed up by the                              in emergencies to contact prisoners.
Ombudsman.                                                           In cases of illness of a close relative, a
                                                                  welfare officer or SAPO may be able to
                     Privacy in cells                             arrange a special visit to the jail.
It is difficult to ensure that prisoners' letters kept in cells
                                                                     Compassionate visits may also be allowed
will not be read by officers or prisoners at some time.           for prisoners who wish to attend a hospital
                                                                  or a funeral (Crimes (Administration of Sen­
                                                                  tences) Act, s 26). Usually, prison officers
[35.180] Telephone calls                                          escort prisoners on these visits.
Prisoners have a “phone card” on which
approved phone numbers are entered. There                         [35.200] Going to court to
are a very limited number of free calls,                          give evidence
otherwise, the prisoner must pay for these                        Prisoners are frequently taken from jails to
calls by depositing money on the card. The                        give evidence in court or appear via AVL
calls are limited to six minutes.                                 (audio-visual link). An order must be made
  Corrective Services supplies free auto­                         under s 77 of the Crimes (Administration of
mated calls to 18 agencies via what is called                     Sentences) Act directing that the prisoner
the CADL phone system (Common Auto                                appear. When a case is adjourned or bail
Dial List). The agencies include Law Access,                      refused, the court automatically makes the
the Ombudsman, Legal Aid, the Aboriginal                          order. If a prisoner thinks that a s 77 order
Legal Service, State Debt Recovery, Child                         has not been made, they should check with
Support and Housing. A list of the codes for                      Records at the jail. If there is no order, the
each agency is displayed at the phone (eg                         court where the prisoner is due to appear
Legal Aid is 11#). These calls are free but are                   will have to be contacted and requested to
limited to 10 minutes. There is also a free                       issue one. If there is no order, the prisoner
call available to the Royal Commission into                       will not be taken to court and could be
Institutional Child Sexual Abuse.                                 noted as “failed to appear”.
35 Prisoners     1123

                                           The Prisoners Legal Service
The Prisoners Legal Service (PLS), run by the Legal Aid     who wants to consult the service can ask at the jail for
Commission, represents prisoners in:                        their name to be put in “the legal aid book”; or, use the
 • life sentence redetermination hearings in the Su-        CADL phone system to phone Law Access (02#) or Legal
   preme Court                                              Aid (11#) and ask to be transferred to PLS.
 • hearings before the State Parole Authority
                                                            PLS has its own staff for jail visits in Sydney. Outside the
 • prison offences heard by visiting magistrates
 • appeals against segregated or protective custody         Sydney metropolitan area, legal services are provided by
   directions.                                              local solicitors or local legal aid lawyers on behalf of the
                                                            service.
PLS also regularly visits most NSW jails to offer general
advice and minor assistance on legal matters. A prisoner    The service is free to prisoners.

[35.210] Visits to jails                                                    Women with children
                                                            Women with children can apply for approval to have
Lawyers                                                     special all-day visits with their children.
Prisoners may be visited by a solicitor or
barrister (Crimes (Administration of Sentences)
Regulation, cl 82). Under cl 85, the lawyer                 In maximum and medium security jails
must make an appointment with the pris­                     In maximum and medium security jails,
on’s general manager for a legal visit. This                visits are usually held in areas that contain
                                                            facilities for box visits and contact visits.
requirement is insisted on only at some jails.
                                                               Prisoners restricted to box visits are sepa­
   Confidential communication with a law­
                                                            rated from their visitors by a wire screen, or
yer is an entitlement. In most jails, prisoners             a glass panel with a grille through which
can see their lawyers in special rooms with a               they can talk.
table and chairs and no screen between                         In contact visits, prisoners and visitors are
them.                                                       allowed to sit together around a table.
   An officer can inspect but not read any                     Where communication is through glass,
document or recorded material taken into a                  holding up written cards is not a breach of
jail for a legal visit (cl 103).                            any regulation (R v Fraser, unreported,
   Most jails now have audio-visual link                    District Court of NSW, 9 March 1978).
(AVL) for court appearances and these
facilities are also used for legal visits if the            In minimum security institutions
lawyer has access to AVL. Plus, using the                   In minimum security institutions, arrange­
same facilities, Corrective Services NSW is                 ments for visits are usually less formal and
setting up a service whereby lawyers will be                more flexible, especially in length, and they
able to book a telephone call with a prisoner.              may take place in a garden area.
                                                            Supervision of visits
                                                            A visit must be held in the sight and hearing
Family and friends                                          of prison officers (cl 102).
Remand prisoners                                            How many visitors?
Remand prisoners are usually allowed two                    The regulations allow up to four visitors (or
visits (not connected with legal matters) per               such other number as the general manager
week (cl 76).                                               determines) to see a prisoner at a time
                                                            (cl 77).
Other prisoners                                             Refusal or termination of visits
Other prisoners are normally allowed one                    Under the regulations, a visit can be refused
visit per week, although some institutions                  or terminated. This can happen, for example,
allow more.                                                 if:
1124        The Law Handbook

• the visitor fails to produce adequate                         Withholding visits as a punishment
   evidence of identity and residence (cl 93)                   Breaches of prison discipline may result in a
• the visitor refuses a search, or a request to                 prisoner losing rights to all but legal visits
   leave property in a locker (cl 95)                           (see Crimes (Administration of Sentences) Act,
• the visitor passes anything to the prisoner                   s 53 and Crimes (Administration of Sentences)
   without permission (cl 99)                                   Regulation 2014, cl 163).
• the visitor is under the influence of
   alcohol or a drug (cl 107)                                   Police
• the visit may adversely affect the security,                  Police can only enter jails to interview
   discipline and good order of the jail                        prisoners with the general manager’s
   (cl 106).                                                    permission.
Arranging visits
                                                                Police powers inside jails
Prisoners do not have to speak to visitors
(cl 79). A prisoner expecting a visit from a                    When they do enter, police have the same
spouse, for example, may well refuse to see                     powers inside the jail as they have outside.
other visitors. Friends and relatives who are                   The prisoner’s right to refuse visitors does
not in close contact but are interested in                      not include visits from police or other
visiting should write to the prisoner,                          officials (cl 79).
therefore, to find out if they would be                             A prisoner has the same right as anyone
welcome and when they should visit.                             else to decline to answer questions.
   Some jails require an appointment to be                      Police interviews outside the jail
made in advance.                                                Police need a written order from the Com­
   All visitors should call the jail to check                   missioner of Corrective Services to take
visiting times and whether an appointment                       prisoners outside the jail for questioning
is necessary, as this varies between prisons.                   (Crimes (Administration of Sentences) Act,
   On the proposed visiting day it is worth­                    s 25).
while ringing the jail to confirm the visit                        The prisoner should be allowed to contact
because the visiting days may be cancelled                      a lawyer as soon as possible. They do not
(for example, prison officers unavailable due                   have to answer questions.
to illness or industrial action) or the prisoner
may have been transferred to another jail.                      Notification to the prisoner's lawyer
                                                                It is Corrective Services policy that depart­
            Assistance with travel costs                        mental officers must notify the legal repre­
Regular family visits to prisoners in distant jails is
                                                                sentative of a prisoner required for inter­
time-consuming and expensive. Financial assistance              view by police, if the prisoner requests it.
from the Department of Corrective Services for travel
costs is available where certain criteria are satisfied.        If the prisoner wants legal advice
Family members should speak to the welfare officer or           A prisoner who wants a lawyer present at
SAPO at the jail to find out if they are eligible, and how to   the interview but cannot nominate one must
apply. Also, the Community Restorative Centre provides          be given the opportunity to seek telephone
a subsided bus service to some country jails.                   advice from the Prisoners Legal Service at
                                                                Legal Aid NSW.
Who can visit?
The general manager of a jail may refuse to                     Parole officers and psychiatrists
allow a person to visit if of the opinion that                  Parole officers, psychologists and psychia­
the visit would prejudice the good order                        trists preparing pre-sentence or parole re­
and security of the centre (cl 106) or if the                   ports may visit.
person is under the influence of alcohol or                         A prisoner need not answer any particular
drugs (cl 107). The commissioner may bar a                      question put by such a person. Prisoners
person from visiting or direct that a person                    should remember that any admission or
under the age of 18 years be prevented from                     confession they make may be given to and
visiting (cl 108).                                              used by police.
35 Prisoners      1125

   Sometimes prisoners are put in the hospi­
                                                                             Gifts
tal psychiatric facility until they are inter­
viewed by a psychiatrist who may give             Gifts must be handed in at the gate or sent by post. A
evidence from the interview for the Crown         senior officer decides whether the gift will go straight to
and against the prisoner. The prisoner (who       the prisoner or into the prisoner's property at the jail. If
                                                  it goes into the prisoner's property, the prisoner must
is usually confused and intimidated by the        request it from the general manager of the jail, who will
surroundings anyway) should be informed           decide whether it should be given to them.
of the status of the interviewing doctor.
                                                  Items should be left in their original packaging,
Refusal to see this Crown psychiatrist may        unopened.
result in the prisoner staying in the psychi­
atric facility until after the trial.             Usually books, magazines, shaving gear and materials
                                                  for hobbies are allowed through at the gate. Clothes,
The Ombudsman                                     money, guitars, watches, cigarettes and tobacco are
                                                  usually released only on the general manager's authority.
The Ombudsman’s office may inspect facili­        Food can be taken into some camps, but not jails.
ties and interview prisoners, and often does
so. The Ombudsman Act 1974 (NSW) has a            A person who intends to take something into the prison
                                                  should ask beforehand whether the prisoner will be
special section which deals with complaints       allowed to have it.
from prisoners (see The Ombudsman at
[35.270]). A free call is available to the        Money
Ombudsman on the CADL phone system                Money can be left at the gate for a prisoner during set
(08#). Correspondence with the Ombuds­            times (that is, during visiting hours on most days except
                                                  Sundays). A receipt should be obtained. However, it is
man is privileged (Crimes (Administration of      easier and safer to send a cheque or money order
Sentences) Regulation 2014, cl 113).              payable to the prisoner. That way the person sending
                                                  the gift has a record of the money and the possibility of
Consular representatives                          reclaiming it if it goes astray. In mid 2014 Corrective
A migrant who is a national of a foreign          Services NSW began a system whereby deposits could be
country may be visited by a consular repre­       made into a prisoner's account using BPAY.
sentative (cl 83).

[35.220]      Prison discipline
Prisoners are subject to the general criminal     [35.240] Visiting magistrates
law. For example, if a prisoner lights a fire in
a jail building, they can be charged with         courts
arson and tried in the criminal courts.           A court is set up in the jail to hear cases
                                                  referred to the visiting magistrate and the
[35.230] Prison offences                          prisoner can be legally represented.
There are also special rules creating prison
offences (see Crimes (Administration of Sen­      Procedure
tences) Act, ss 51–65 and Crimes (Administra­     Procedures are the same as those in an
tion of Sentences) Regulation, cll 127–162).      ordinary magistrate’s court (s 55), except
   If it is alleged that a prisoner has commit­   that it is less formal, and it is not open – no
ted a prison offence, they are charged by the     one except the parties, their solicitors and
general manager of the prison. The offence        witnesses is allowed to attend.
may be dealt with by the general manager            If the visiting magistrate is of the opinion
(s 52), or they may refer it to a visiting        that the matter constitutes a criminal offence,
magistrate if it is serious (s 54).               they may refer it to a Local Court (s 58).
1126       The Law Handbook

Legal representation                                        [35.250] Offences dealt with
Representation is available in most jails
through the Prisoners Legal Service.                        by the general manager
  Prisoners who do not want to be repre­                    Advantages
sented must conduct their own case. The                     The advantages for the prisoner of having
prisoner is allowed to cross-examine wit­                   the general manager deal with a prison
nesses for the prosecution, give evidence,                  offence are that:
call and examine witnesses, and address the                 • it is quicker
magistrate.                                                 • the maximum penalties are less.

        Prisoners representing themselves                   Disadvantages
                                                            The disadvantages are that:
In general, it is not easy for prisoners to run their own
case. They need to think through what evidence is likely    • there is no general right of appeal
to be brought against them and what facts they hope to      • there is no right to be represented
prove.                                                      • the rules of evidence do not apply.
For general guidance, prisoners may find it helpful to
read Representing yourself in court in chapter 14, Court.   If the offence is proved
If problems arise, an adjournment should be sought from     The general manager must be satisfied
the visiting justice to get legal advice.                   beyond reasonable doubt that the allegation
                                                            has been proved.
                                                              The maximum penalty they can impose is:
                                                            • seven days’ confinement to a cell
If the offence is proved                                    • 56 days’ loss of amenities or privileges
If the visiting magistrate finds the offence                 • compensation for damage to property
proved beyond reasonable doubt, they can                      (ss 53 and 59).
order that the prisoner:                                    Mobile phones and drugs
• be confined to their cell for up to 28 days                The general manager may order loss of
• suffer up to 90 days’ loss of privileges                  privileges for up to six months:
                                                            • for possession of a mobile phone or parts
• be imprisoned for a period not exceeding
                                                               (s 56A), or
   six months
                                                            • if drugs are detected in a prisoner’s urine,
• pay compensation for damage to prop­                         or if the prisoner refuses or fails to give a
   erty (ss 56 and 59).                                        urine sample (s 57).
                                                            Where no penalty is imposed
Appeals                                                     If the general manager finds an offence
                                                            proved but considers that no penalty should
There is a right of appeal from a visiting
                                                            be imposed, the charge can be dismissed or
magistrate’s decision to the District Court,
                                                            the penalty deferred on condition that the
but only if the visiting magistrate imposes
                                                            prisoner is of good behaviour for up to two
imprisonment (s 62).                                        months.

Time limits                                                 [35.260] Escape
The appeal must be lodged within 28 days
                                                            Escaping is a criminal offence (Crimes Act
or, with leave, within three months.
                                                            1900 (NSW), s 310D) and is dealt with in the
                                                            Local or District Courts.
Legal aid for appeals
Legal aid is available from the Legal Aid                   Was the person in prison?
Commission for such appeals, subject to a                   Only someone in lawful custody can escape.
merit test.                                                 The prosecution must show that the escapee
35 Prisoners      1127

was held in a place proclaimed as a prison.             Penalty
A prisoner is still considered to be in prison          Any prisoner who escapes or, who having
if they are temporarily absent with the                 been temporarily released, fails to return, is
approval of the commissioner – to play                  liable to 10 years’ imprisonment (Crimes Act
sport, attend university, work, or for one of           1900, s 310). It must be served in addition to
a number of other reasons (see Crimes                   the non-parole period of the original sen­
(Administration of Sentences) Act, ss 38 and            tence the prisoner was serving (Crimes (Sen­
39).                                                    tencing Procedure) Act, s 57).

Complaints by prisoners
[35.270] Complaints                                     deal with the matter, the person to whom the request is
                                                        made must be told about it during their next visit
A prisoner who has a grievance may be able              (cl 169).
to have it resolved without going to a court.
  The people and organisations who can                  The commissioner or minister
receive prisoner’s complaints are:
                                                        Any prisoner can write a letter to the
• the general manager of the prison                     Commissioner of Corrective Services or the
• visiting magistrates                                  Minister for Justice without making a formal
• the Minister for Justice and/or Minister              application (cl 170).
   for Corrective Services
• the Corrective Services Commissioner                  Official visitors
• official visitors                                     Official visitors for each prison are ap­
• the Ombudsman - ring 08# on CADL                      pointed by the minister, and must visit the
   phone system                                         prison at least once a month (Crimes (Admin­
• the Health Care Complaints Commission                 istration of Sentences) Act, s 228). Their main
   - ring 05# on CADL phone system                      role is to receive and deal with complaints
• the Corrective Services Support Line ­                made to them by prisoners and prison
   ring 01# on CADL phone system                        officers.
                                                        What the official visitor may do
The general manager                                     An official visitor can bring a complaint to
A prisoner may make an oral or written                  the general manager’s attention and try to
request to a prison officer to speak to the             have it resolved at that level. Otherwise,
general manager.                                        they can advise the prisoner making the
  The general manager responds on the day               complaint about what else they can do or,
the request is received, or as soon as                  with the prisoner’s permission, can refer the
practicable afterwards, and must tell the               complaint to an appropriate person (Crimes
prisoner whether or not they propose to                 (Administration of Sentences) Regulation,
take any action (Crimes (Administration of              cl 166).
Sentences) Regulation, cl 168).                         Reporting requirements for official visitors
                                                        Each official visitor must make a written
    Requests to speak to the minister or the            report to the Minister at least once every six
                 commissioner                           months.
Prisoners may ask to speak to the minister or the       The Ombudsman
commissioner about a specific matter.
The request must be given to the general manager, who   What complaints can be made
may deal with the matter personally and must make a     The Ombudsman Act 1974 (NSW) specifically
record of action taken. If the general manager cannot   allows complaints to the Ombudsman by
1128     The Law Handbook

prisoners about the Department of Correc­           chapter 11, Consumers). Complaints may be
tive Services or its officers.                      about the quality of the service and delays
                                                    in getting medical attention or treatment. A
How to complain                                     free call is available to Health Care Com­
Complaints are made to the Ombudsman on             plaints on the CADL phone system (05#).
a form available at the jail, or by setting out
the substance of the complaint in a letter.         What the commission will do
   This letter may be sealed by the prisoner,       The commission investigates the complaint,
and should be delivered unopened to the             and if it considers that the health provider’s
Ombudsman by the prison authorities. The            practice falls below a reasonable standard of
Ombudsman’s reply should also be passed             care, it can initiate action such as disciplin­
to the prisoner unopened (Crimes (Adminis­          ary proceedings and make recommenda­
tration of Sentences) Regulation, cl 113). A free   tions for policy change in Justice Health.
call is available to the Ombudsman on the
CADL phone system (08#).                                      False or misleading complaints
What the Ombudsman can do                           It is a Correctional Centre offence for a prisoner to make
The Ombudsman’s powers are limited to               a complaint against the general manager or a prison
making recommendations, and making a                officer which the prisoner knows is false or misleading
                                                    (Crimes (Administration of Sentences) Regulation,
report to the minister and parliament. It is        cl 171).
unusual for a recommendation by the Om­
                                                    It is an offence to deliberately make a false complaint to
budsman to be ignored.                              the Ombudsman (Ombudsman Act 1974, s 37(1)).

The Health Care Complaints
Commission
A prisoner who wants to complain about                    The Corrective Services Support Line
health treatment or services in prison              This commenced operation in 2003, and can be called if
(medical, psychiatric, dental and optical) can      other avenues of complaint have been exhausted. Phone
make a written complaint to the NSW                 01# on the CADL phone system.
Health Care Complaints Commission (see

Appeals and legal actions by prisoners
[35.280] Appeals                                    lodged, unless the registrar agrees to waive
                                                    it. In some jails, staff have refused to process
Appeals to the District Court                       an appeal because the prisoner could not
Anyone who has been convicted by a                  pay the fee. This practice has been criticised
magistrate has the right to appeal to a             by the District and Supreme Courts because
District Court judge (Crimes (Appeal and            it prevents the prisoner from exercising their
Review) Act 2001 (NSW), s 11).                      legal rights. Advice should be sought from a
  Appeal forms are available at jails. They         lawyer if this situation arises, because the
must be lodged within 28 days. They should          fee can be waived.
be sent to the clerk of the Local Court where          There is no right to appeal from the
the person was convicted. The Local Court           District Court appeal hearing.
makes a bail determination and then sends
the papers to the District Court. If bail is        Appeals to the Court of Criminal Appeal
refused, the person can apply to the Su­            A person convicted in the District or Su­
preme Court.                                        preme Court can appeal to the Court of
  A fee of approximately $70 per charge is          Criminal Appeal. The necessary forms
payable when a District Court appeal is             should be available at the jail but advice
35 Prisoners   1129

should be obtained first. There is no filing                 Victims compensation for an assault in
fee for an appeal to the Court of Criminal                 jail
Appeal.                                                    By s 25 of the Victims Rights and Support Act
                                                           2013 (NSW) a person is not eligible to
Advice about appeals and legal aid is available from the   receive victims compensation for an assault
    Prisoners Legal Service, which visits most jails.      which occurred while the person was im­
                                                           prisoned as a convicted inmate unless they
                                                           can show special circumstances to justify an
[35.290] Legal actions                                     exception being made (eg being seriously
Bringing criminal proceedings for                          and permanently injured). If the prisoner
                                                           was on remand or in custody only because
assault                                                    of failure to pay a pecuniary penalty, they
A prisoner who alleges assault by a prison                 can make a claim. A claim must be made
officer can personally lay an information                  within two years of the incident.
before a Local Court but this is difficult to
arrange.                                                   Bringing civil proceedings
Procedure                                                  It might be possible to take proceedings for
The prisoner should ask the general man­                   damages arising from an assault in custody
ager to arrange a visit by a chamber                       or for injuries sustained in an accident.
magistrate, who must act on the information                However, the procedure is complex and
(unless it appears to be frivolous or an abuse             requires specialist legal advice. Importantly,
of process, see Electronic Rentals Pty Ltd v               there are time limits whereby a prescribed
Anderson (1971) 124 CLR 27).                               notice must be given within six months of
                                                           the incident under s 26BA of the Civil
Problems with proving the charge                           Liability Act 2002 (NSW); and, in some cases,
The prisoner, as the informant, must satisfy               the claim must be filed within three years.
the magistrate who hears the case beyond
                                                           Actions in the Supreme Court
reasonable doubt that the officer assaulted
them. In a case where it is a prisoner’s word              It may be possible to bring an action in the
against a prison officer’s, the prisoner will              Supreme Court seeking a declaration that a
probably lose, unless they can produce                     decision by Corrective Services adversely
witnesses and medical evidence of injuries.                affecting a prisoner is wrong. The courts,
                                                           however, are reluctant to interfere with
Legal aid                                                  decisions made in the course of running a
Generally, there is no legal aid to prosecute              jail.
an assault: prisoners must pay a lawyer or
                                                           Felons (Civil Proceedings) Act
represent themselves.
                                                           By s 4 of the Felons (Civil Proceedings) Act
Costs                                                      1981 (NSW), a person convicted of a serious
If the charge is dismissed, the magistrate                 indictable offence may not institute any civil
may order the prisoner to pay the defen­                   proceedings in any court except by the leave
dant’s costs.                                              of that court.

Sentences and parole
[35.300] Non-parole periods                                are special circumstances (Crimes (Sentencing
                                                           Procedure) Act 1999 (NSW), s 44).
A court first sets a non-parole period, then                   Standard     non-parole    periods     are
sets the full term of the sentence by adding               prescribed for certain serious offences
an amount not exceeding one-third of the                   (s 54A).
non-parole period, unless it decides there
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