The Law Handbook 13th EDITION - YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES
Page content transcription
If your browser does not render page correctly, please read the page content below
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
You can also read