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Taking justice into custody: the legal needs of prisoners  

, 2008 This report describes a study conducted by the Law and Justice Foundation of New South Wales (the Foundation) on the legal needs and access to justice of prisoners in New South Wales (NSW). This project is part of the Foundation`s broader program of research into the legal needs of economically and socially disadvantaged people, and their access to justice.

Executive Summary


Aim

The legal needs of prisoners project, Taking justice into custody, is part of a broader program of research being undertaken by the Law and Justice Foundation of New South Wales into the access to justice by, and the legal needs of, economically and socially disadvantaged people.1 Prisoners have been included in this program in recognition of:


This report examines the capacity of prisoners in NSW to:
Included under these aims was the ability of prisoners to obtain assistance with their legal issues from non-legal sources (including the NSW Department of Corrective Services (DCS) and external support agencies), as previous research has demonstrated the important role such assistance plays in resolving legal issues (see, for example, Forell, McCarron & Schetzer, 2005). The investigation examined the above issues in relation to not only the prisoners' existing legal troubles, but other legal problems that may arise or be prevented during their incarceration.

Method

In this project, we used qualitative interviews to explore the experiences of prisoners and people recently released from prison. Through one-on-one interviews and a small number of focus groups, we also sought the perspectives of DCS staff and other legal and non-legal service providers who support both prisoners and ex-prisoners.

In total we interviewed 67 prisoners and ex-prisoners and 42 other stakeholders using semi-structured, open-ended questions. The prisoner sample for this project included 27 sentenced inmates and 19 inmates on remand, drawn from five NSW prisons. The ex-prisoner sample included 15 parolees and six unconditionally released inmates, who had been released from full-time custody in the last two years. Interviewees were asked a series of semi-structured, open-ended questions seeking information about their experience of different legal problems, what steps they had taken (if any) to remedy them and the current status of that problem.

The stakeholder sample for this project was drawn from DCS staff and other service providers. Nineteen DCS staff were interviewed, including prison welfare staff, a financial counsellor, parole officers, library staff, education officers, policy workers, 'Throughcare' workers, and department managers working both within correctional centres and in head office. Interviews were also conducted with 23 legal and non-legal service providers who provide support to prisoners and people recently released from prison.

Legal issues experienced by prisoners

Prison inmates by definition have experienced or are experiencing criminal law issues. However, our research suggests that prisoners commonly face a range of other civil and family law issues as well. Some arise from their chaotic lives and financial disadvantage prior to custody, including outstanding debt, unpaid fines, unresolved family law issues and apprehended violence orders. Imprisonment itself also may lead to further legal issues as the person is suddenly excised from their everyday life. Prisoners' housing, child custody arrangements, the retention of their personal effects, employment, the operation of any business and/or social security payments are all affected by their sudden separation from the community through incarceration. Legal issues particular to being a prisoner may also arise, such as bail, prison disciplinary action, classification and segregation issues, victims compensation restitution, and the threat of deportation. When they leave prison, ex-prisoners may experience legal issues relating to their parole and discrimination when seeking housing and employment. Our research also demonstrated that, upon release, prisoners may feel the impact of unresolved legal problems dating from a time prior to custody or during their imprisonment.

Opportunities and barriers to access justice

Interviews with inmates, ex-inmates and the people who assist them, indicated that technically, there are opportunities for prisoners to obtain legal information, advice and representation and to participate in legal processes. Visiting legal advice services, prison libraries, prison staff and independent organisations, as well as telephone access, do much to facilitate the access that prisoners have to legal assistance. However, the interplay of the prison environment, inmates' own personal capacity, the pathways through which inmates can access help, and prison culture, all mean that in many instances, those opportunities are missed or somehow compromised.

Obtaining legal information in prison

Our research indicates that prisoners obtained information about legal issues from a range of sources, including the prison library, welfare staff, other inmates, the visiting legal advice service, and from their own lawyers. Specific barriers that were identified in relation to inmates' access to legal information and advice included:


Legal advice and representation in prison

Opportunities to engage and consult with a lawyer are available to inmates whilst in prison. Legal Aid's Prisoners Legal Service (PLS), for example, provides a visiting legal advice service to NSW prisons on a regular basis. Legal numbers are included on prisoners' phone cards and the number for LawAccess is automatically programmed in. Legal advice visits are catered for with designated areas and times for such visits to take place. However, despite these facilities, interviewees in the current study reported problems for inmates in securing and interacting with legal professionals. Problems included:


Effective participation in legal processes

To participate effectively in a legal process a prisoner needs to be aware the process exists, know what to become part of that process and be able to signal that intention to the relevant authority. Again, procedures are in place to facilitate inmate participation in law processes, especially criminal law processes. However, during our interviews, we unearthed a number of barriers to inmates commencing and participating in criminal and civil legal processes. These included:


Particular issues were raised in relation to appearing in court by Audio Visual Link (AVL), including the perceived impact of appearing by AVL in prison uniform rather than civilian clothes, and the greater difficulties for inmates with cognitive impairment to follow proceedings by AVL.

Consequently, while there are opportunities for prisoners to access justice, there are situations where these opportunities break down. Our analysis shows that there are a number of factors which contribute to the breakdown of opportunities for inmates to access justice. These are analysed and discussed under four themes:


Prisoner capacity

Interviews conducted for this study indicated that prisoners' capacity to identify and deal with legal issues they are facing, and to actively participate in legal processes to resolve those issues, is affected by their own:


Prisoners commonly reported that their lives had been spiralling out of control prior to their coming into custody. Contributing factors included mental illness, alcohol and other drug misuse, difficult and unhealthy family relationships, criminal activity, prior custody and poverty. As a result, inmates often came to jail with multiple criminal and civil legal issues, were not necessarily aware of the extent of these issues, had limited documentation, and had often damaged relationships with formal and informal sources of support.

Of particular note was a tendency reported in the interviews for inmates to have made financial, family and other arrangements outside the formal legal processes. These included informal money lending, housing and custody arrangements. There were also examples of this extending to the use of violence to settle scores. A lack of trust in and marginalisation from formal legal processes, appeared to contribute to the reliance on alternative, less formal solutions. Choices concerning appropriate courses of action were further compromised by inmates' often limited financial resources and lack of appropriate documentation. Consequently, inmates commonly came to jail with multiple legal problems but little leverage to resolve those issues easily.

Given the significant systemic barriers they face to addressing multiple legal issues from inside jail, inmates need to be motivated, tenacious, articulate, patient, organised and familiar with the law and legal process to successfully address their legal needs. In contrast, the profile of the prisoners in NSW is characterised by high rates of illiteracy, mental health issues, alcohol and other drug misuse, and cognitive impairment. Many prisoners had limited or interrupted education. Periods in custody had served to decrease inmates' confidence and skills at being able to function constructively when they return to the community.

Without recourse to the necessary skills or support to address legal issues, inmates tended towards maladaptive interaction styles (e.g. passive or aggressive behaviour). Dangerously, the inability of some prisoners to comprehend legal information, advice or outcomes was sometimes overlooked by people who offer assistance, because previous experience before the courts or time inside was taken as a proxy for actual knowledge. Lack of capacity may also be masked by bravado or disinterest because people are too embarrassed, intimidated or overwhelmed to admit that they did not understand information or advice, or that they cannot read.

Difficulties understanding and engaging with lawyers and the legal process also appeared to alienate inmates from using the law in their own interest, with some prisoners actively avoiding legal help. Inmates whom we interviewed reported avoiding the legal system to redress injustice because, in their experience, it was intimidating, incomprehensible and unlikely to operate in their favour. When compelled to participate in the legal process, some people did so in a state of ignorance and ensuing anxiety.

Systemic environment

As a consequence of being in prison and having legal needs, prisoners usually come into contact with a number of systems, such as the legal, custodial and bureaucratic systems. Features of, and tensions between, the systems have presented barriers to prisoners accessing justice.

Firstly, according to our interviewees, the level of resourcing within DCS and public legal services, such as the Legal Aid Commission of New South Wales (Legal Aid) and the Aboriginal Legal Service (ALS), seemed to threaten the capacity of these bodies to facilitate prisoners' access to justice. For example, the number of inmates requiring time with the PLS visiting legal advice service meant that each inmate may only have five or 10 minutes to discuss their case. Many felt that this was insufficient to convey their situation and absorb the advice offered.

Opportunities to contact a lawyer by telephone or during a legal advice visit, reach the library for legal information and get legal support through welfare staff can be compromised by conflicting priorities within the custodial system, such as the emphasis placed on security and efficient management of inmates in correctional centres.

There also seemed to be clashes between the custodial system and the legal systems and processes, making it difficult for inmates to access legal help. For example:


The AVL system was posited as a way that could circumvent some of the tensions between these external systems and internal custodial processes. However, its utility is tempered by the concern that AVL can add another layer of confusion for inmates who already have comprehension difficulties. Other initiatives, such as the recent implementation of the Centrelink outreach service, were also suggested as ways to ameliorate conflict between the different components of the broader justice system.

Finally, while procedures are in place enabling inmates to participate in their criminal matters, there are less systemic processes and facilities available to help prisoners resolve their non-criminal problems. For example, the procedures for prisoners to access government agencies such as the Department of Housing or the State Debt Recovery Office are variable, not always immediately apparent, involve a number of steps to reach and are consequently less reliable. The visiting advice service also did not routinely cover civil issues. However, the addition of the LawAccess number to inmates' phone cards (subsequent to our interviews) has the potential to substantially improve access to advice on civil matters.

Pathways and intermediaries

Our interviews indicated that inmates rely to a high degree on other people to help address their legal issues. These people, or intermediaries, may act on the prisoners' behalf or as a relay point in the process of preventing, identifying or addressing a legal problem. Our analysis revealed that there are a number of features of these intermediaries and mediated pathways to legal help that facilitate an inmate's access to justice or act as a barrier.

Firstly, although there appeared to be numerous people prepared to assist with tasks associated with a legal problem, inmates often expressed confusion about who was the best person to approach, particularly in the first instance. Pathways to assistance with legal problems were fragmented and obscured by a number of practices: lack of information detailing appropriate contacts, several different staff groups covering the same task, tasks designated to one group being taken over by another, and different people within the one occupational group having varying degrees of knowledge and consequent capacity to assist. Inmates tend to respond to this uncertainty either by giving up the pursuit or approaching several intermediaries for the same issue simultaneously, thereby doubling up on the use of resources and further entrenching the confusion surrounding the question of responsibility.

Secondly, a major issue that arose particularly in relation to custodial staff was the lack of consistency and clarity in the assistance given to prisoners. A prisoner may feel uncertain about who to contact for assistance, when, in their experience, one officer in a certain position may have been helpful, yet another officer in the same position at a different time had not been particularly useful. The assistance provided may depend on the mood, disposition or skills of the individual officer, rather than their position. This can reinforce uncertainty about where to go for help.

Thirdly, mediated processes seem to delay help, with many interviewees describing apparently cumbersome processes to achieve relatively simple tasks. As a consequence, inmates would in some cases abandon seeking help because they felt it would take too long. In other cases, inmates missed an opportunity to address a legal issue or prepare effectively for a hearing. As the contingencies increased with every pair of hands a matter passed through, so did the opportunity for a breakdown or delay to occur.

The final factor that affected the utility of intermediaries was the potential for exploitation or being (unintentionally) misled because of the relationship of dependency that mediated pathways create. This sub-theme was mainly an issue where personal intermediaries (as opposed to 'professional' intermediaries such as DCS staff or staff of other organisations) were used. Although inmate peers were an easily accessible and often a preferable source of assistance with legal problems, the sensitive nature of the matters could sometimes place an inmate at risk of privacy breaches. In other cases the inmate may lose money, property or have debts incurred in their name because they have had to ask friends or family to pay bills, mind property or oversee their finances. In yet other instances, inmates may be given incorrect or incomplete information.

Prison culture

Our analysis also indicated that prison culture is a factor in shaping the degree to which inmates access justice and obtain assistance with their legal issues. The prison culture not only informs inmates' behaviour but also that of legal service providers and those who assist prisoners in obtaining access to service providers. Our interviewees observed this occurring in a number of ways.

Firstly, inmates were defined and define themselves as being in opposition to correctional officers and/or even the justice system itself. For example, an inmate may not report an assault perpetrated by another prisoner because it betrays a code of behaviour that pits inmates against prison authorities. Consequences, such as stigmatisation, harassment or even violence, reinforce these notions. Consequently, although there were processes available that provided legal redress for inmates who are assaulted, they are not pursued because the prison subculture makes it unattractive or at least problematic.

Secondly, violence committed against inmates is conceived as unremarkable in the prison environment. An assault may not be reported because physical violence is part of the experience of prison or because such incidents can be resolved by responding with further violence. This normalisation and naturalisation of violence enhances informal resolution of issues and undermines the formal systems that aim to deliver justice to inmates.

Thirdly, common notions that 'criminals' do not 'deserve' justice may lead to prisoners not challenging circumstances where they do not feel they have been treated justly because they perceive that they are thought of as unworthy of assistance. Such perceptions persist even though the 'lived' experience of many inmates and the attitudes of those who help them are to the contrary. A number of examples were given in our interviews where unfair treatment was explained by the inmates to themselves as 'criminals break the law therefore they deserve whatever treatment they get'.

Finally, a tendency to compliance, which is reinforced by prison culture, seemed to discourage inmates from being proactive about meeting their legal needs. Inmates may be less inclined to challenge perceived injustices, as non-compliance may attract disciplinary action or result in help being withdrawn. This passivity is a barrier in post-release life where the ex-inmate must be far more active in pursuing assistance.

Conclusions and policy implications

Taking Justice into Custody builds a complex picture of prisoners' legal needs and their capacity to access justice. To begin with, prison inmates are, as a group, disadvantaged. At the aggregate level they are under-educated, have high rates of mental illness and intellectual disability, have drug and/or alcohol addictions and are financially compromised. Our report indicates that imprisonment tends to compound this disadvantage. Each time the person cycles through the justice system personal supports are strained, skills become atrophied, financial resources are depleted and the capacity to operate well 'on the outside' and without resort to unlawful means is further diminished. Many of the symptoms and causes of these problems have legal implications, with family breakdown, difficulties with housing, high levels of debt, and conflict with government authorities all generating and reflecting the disadvantage that prisoners experience.

Formal opportunities do exist for prisoners to address their legal needs, particularly for criminal legal problems, and to prevent new issues developing. Our research has revealed that prison libraries, knowledgeable staff, visiting legal services, and LawAccess assist inmates to identify and satisfy legal needs. However, what was also revealed was the vulnerability of these opportunities to being compromised by poor inmate capacity, the systemic environment, the mediated and at times convoluted pathways to assistance, and prison subculture. However, looking across these factors, a range of other observations and themes emerged from the analysis.

The first theme concerns the seemingly inverse relationship between the accessibility of legal help and the quality of that assistance. For instance, while other inmates were a very immediate source of assistance, the quality and relevance of advice given was variable. In contrast more reliable sources of assistance such as lawyers were much harder for prisoners to reach. The need to bring quality legal assistance within more direct reach of inmates and the improvement in resourcing more accessible sources were two clear implications for future policy. The recent placement of LIAC2 materials into prison libraries and the addition of the LawAccess telephone number to inmates' phone cards were two examples of such strategies.

A second theme concerned the mismatches between what inmates needed to access justice and what opportunities were available. For instance, legal processes often rely on written information, and yet many prisoners are poorly educated and face difficulties with literacy. Further, resources within the systemic environment often fell short of demand for them — telephones, public legal professionals and welfare staff for example were in high demand but often, apparently, short supply. There was also evidence of mismatches between the routine and realities of life inside prison and the way services to prisoners were delivered. For example, lawyers were most accessible by telephone or in person at the times that inmates were more likely to be locked in cells unable to access the telephone. Similarly, restrictions on inmates' movements within prison could prevent their access to the prison library when it was open.

Disempowerment was a third theme concerning barriers facing prisoners when they try to prevent or address legal issues. The pervasive need for prisoners to rely on other people to carry out tasks on their behalf (such as calling government agencies, passing on messages and arranging legal visits) meant that inmates were often not in control of obtaining information and advice on their own behalf.

Consequences included delays, essential activities not taking place at all, and the creation of unequal power relationships that sometimes were to the detriment of the inmate. Additionally, the loss of skills and resources through repeated incarceration and concomitant reliance upon others may cumulatively erode inmates' capacity to address their legal needs on their own behalf even when released.

A final theme concerns how the capacity of prisoners to address certain legal issues varies at different stages of their incarceration. When first incarcerated, inmates are generally too unstable, stressed and focused on their criminal matters to have the capacity to focus on their longer term civil law problems. By the time they are in sentenced prisons, inmates appear to have more personal capacity to address these issues, but are faced with more systemic barriers to doing so (e.g. placement in a rural prison and less access to welfare or regular legal assistance). If civil law assistance was provided at a point in the incarceration when inmates were most able to engage with that assistance, the effectiveness of that assistance may be increased.

Table 10.1 on page 280 of this report summarises the changing capacity of inmates and the nature of their environment as they move through the incarceration process. It also shows the barriers they face, highlighting policy development and service provision issues.

It is important to recognise that some of the factors that affect prisoners' access to justice may not be easy to modify or will change slowly. These include the overriding priority given to security in jails, limited resources within both correctional and legal service delivery systems, the complex histories of prisoners and the limited cognitive capacity of many inmates, particularly during the early stages of custody.

However, here are some key elements that would address a number of the barriers identified in this study:


Satisfying legal needs from within the prison environment can be a complex process. Isolation from services, the formal and informal regulation of movement and interactions, personal capacity and the conflicts between components of the justice system all affect how opportunities to access justice are exploited or missed. However, our research shows that many strategies are successful in bringing legal assistance to prisoners, by engaging with the prevailing conditions and working within the limitations of imprisonment. Consequently, while it is true that many circumstances exist to impede access to justice for inmates, it is certainly possible to successfully address the legal needs of prisoners and to give people in custody the opportunity of accessing justice.


Foreword


The purpose of the Law and Justice Foundation of New South Wales is to advance the fairness and equity of the justice system and to improve access to justice, especially for economically and socially disadvantaged people. In 2002 the Foundation commenced the Access to Justice and Legal Needs (A2JLN) research program, which aims to examine the ability of disadvantaged people to:
The main purpose of the program is to provide a rigorous and sustained assessment of the legal needs of the community, especially disadvantaged people, and their ability to access justice. This will provide evidence to assist government, community and other organisations to develop suitable policies and to plan service delivery. The research is a challenging program involving an interconnected set of projects, employing a range of qualitative and quantitative methodologies.

One important feature of the A2JLN research program is the examination of the particular access to justice issues and legal needs of selected disadvantaged groups. This qualitative study focuses on the legal needs of prisoners. Other groups examined as part of the program include older people, homeless people and people experiencing a mental illness. Prisoners were included in the A2JLN research program because of the concentration of disadvantage experienced by the prison population in terms of higher levels of mental illness, intellectual disability, histories of alcohol and other drug misuse, poverty, poor education, and unemployment. Prisoners were also included because there is available evidence that they experience a unique range of barriers in meeting their legal needs, there is a dearth of research on this topic, and prisoners are a group that have been so far 'missed' by our legal needs survey research.

While all prisoners face or have faced criminal law issues, this study also highlights the range of civil and family law problems that arise when people are often suddenly removed from their daily lives. These issues add to the legal problems accumulated in the chaotic period prior to custody (such as fines, debts, other criminal matters) and legal issues that are particular to inmates (such as parole and prison disciplinary matters).

This report also illuminates how the personal capacity of inmates, the systemic environment, the pathways to legal help and the prison culture all intersect to affect the capacity of prisoners to address their civil, family and criminal legal issues as they move through the incarceration process. It outlines the barriers caused by those factors, and highlights specific policy and service delivery implications for those working in the sector, to improve access to justice for people in prison.

Taking Justice into Custody is primarily based on consultations with legal and non-legal service providers, NSW Department of Corrective Services staff, serving inmates and people recently released from prison. It has also drawn upon existing literature and available statistics. While the report 'stands on its own', it is complemented by data collected in the other quantitative and qualitative components of the A2JLN program. The following reports in particular should be considered:


Geoff Mulherin
Director
Law and Justice Foundation of New South Wales
June 2008


Ch 1. Introduction


This report describes a study conducted by the Law and Justice Foundation of New South Wales (the Foundation) on the legal needs and access to justice of prisoners in New South Wales (NSW). This project is part of the Foundation's broader program of research into the legal needs of economically and socially disadvantaged people, and their access to justice. Prisoners were included in the Access to Justice and Legal Needs (A2JLN) research program in recognition of:
Project aim

The aim of this research was to explore the capacity of prisoners to:


Included under these aims was an exploration of the ability of prisoners to obtain assistance with their legal issues from non-legal sources (including the NSW Department of Corrective Services (DCS) and other external organisations and agencies' staff) as previous research has demonstrated the important role such assistance plays in resolving legal issues (see, for example, Forell, McCarron & Schetzer, 2005). The investigation examined the above issues in relation to not only the prisoners' existing legal troubles, but other legal problems that may arise or be prevented during their incarceration.

Legal and administrative context

To place this study in context, there needs to be some assessment of whether accessing legal information, gaining legal representation and participating in legal processes for prisoners is incompatible with the function of imprisonment, as administered by the DCS. A discussion of the broader legal and administrative context of the project is given below, preceded by a brief background to relevant prison policy in NSW.

The Nagle Royal Commission

In 1978 the Report of the New South Wales Royal Commission into New South Wales Prisons was handed down by the Honourable Mr Justice Nagle. The Nagle Report (Nagle) exposed the excessive violence and brutality within NSW prisons at that time, and made 252 recommendations for substantial reform of the system. The closed and secretive administration of the system as it was then was also highlighted as an area of concern. The Nagle Report is a key reference as it signalled a new direction for the administration of corrections in NSW.

A fundamental premise of the report was that prisoners should be perceived as citizens — with the legal rights and protections of other citizens. On this basis, the report outlined five principles to guide future planning for Corrective Services. In summary, these principles were that the intervention of prison should be only used as a last resort, for the shortest possible time, at the lowest appropriate security classification, recognising that it is the deprivation of liberty itself, which is the penalty, not the harshness of the time served. Nagle also proposed that an 'inmate should only lose his liberty and such rights as expressly or by necessary implication result from that loss of liberty' (NSW Royal Commission into NSW Prisons (Nagle), 1978, pp. 53–55). In other words, within the constraints of their imprisonment and the law, prisoners should have the same 'access to justice' as other citizens.

Notably, Nagle not only commented on the need to alter the fundamental principles underlying correctional policy, but examined the capacity of the system at the time to apply these principles. He observed:


Nagle not only focused on the policy context, but also examined the capacity of prisoners in practice to get the help they needed to address their legal issues. In terms of facilitating access to the law and lawyers, Nagle specifically recommended that:
While there was considerable resistance from within the prison system, most of Nagle's 252 recommendations were implemented by the government (Vinson, 1982; Grabosky, 1989). These changes were commenced in the first years after the inquiry, by the newly appointed Corrective Services Commission, chaired by Dr Tony Vinson (Zdenkowski & Brown, 1982, pp. 86–90). Commentators described the new Commission as 'demonstrat[ing] profound concern for the rights of individual prisoners' (Grabosky, 1989).

Pertinent to this study was that in 1981, the Legal Aid Commission of New South Wales (Legal Aid NSW or Legal Aid) established a limited interim service to prisoners, providing representation at visiting justice hearings and an advice service in some jails. In 1986, the Prisoners Legal Service (PLS), a specialist service for prisoners within the criminal law division of Legal Aid was permanently established (Legal Aid NSW, 2006a pp. 9–10). The PLS continues to operate in NSW prisons.

The notion of 'prisoner as citizen' was not unique to the Nagle Report. Rather, it was part of and reflected a broader theoretical shift in the way that imprisonment was being understood (see Coyle, 2002, 2005). In short, the emphasis was shifting from imprisonment as the simple containment of offenders, to a focus of rehabilitating or resocialising offenders back into the community. The view of the prisoner as an 'imprisoned citizen' rather than as a person who had forfeited their citizenship was also reflected in the changing role of the prison officer. Lombardo (1981; 1989 pp. 2–6) described a shift in the role of prison officers from simple custodians to having a 'human service' role. Their formal and informal interactions with inmates were seen to contribute to the goals of imprisonment; both custodial and rehabilitative. The position description and applicant guide for correctional officers today reflect this change (NSW DCS, 2006a).

Subsequent inquiries

Since the Nagle Report, the NSW prison system has been subject to a number of other inquiries, most of which dealt primarily with broad policy concerns of the appropriateness and impact of imprisonment. Key reports from these inquiries which have covered issues relating to the legal or access to justice needs of prisoners include:


A recent report on interventions for prisoners returning to the community, commissioned by the Justice Branch of the Commonwealth Attorney-General's Department provides the most comprehensive and recent review of post-release issues facing prisoners in this country (Borzycki, 2005).

Overall, the number of inquiries into corrections in the last five years is indicative of the state of change both in correctional environments around Australia and in correctional practices. The Standard Guidelines for Corrections in Australia, jointly issued by the departments of each Australian state and territory responsible for corrective services, described these many changes as follows:


Thus, the present research has been undertaken in a context where the ground is shifting. As the statistics presented in Chapter 2 indicate, the prison population is increasing, causing strain on the operation of correctional centres. To house this increasing population, more prison are being built, with an increasing proportion of prisons being privately operated. The management of centres is also changing under The Way Forward policy currently being implemented in NSW. This policy changes staffing ratios and use of overtime to increase cost-efficiency (NSW DCS, 2006b, p. 25).1 These changes in turn may affect inmates' access to justice. Also evident is an increasing policy focus on 'Throughcare'2 services for inmates, with a view to reducing re-offending by addressing the needs of prisoners as they move through the system and back into the community, post-release. While post-release support has been a concern in NSW since the 1950s (North, 1976),3 this focus on reducing re-offending forms the basis of the current policy position.

Current policy position

The stated mission of DCS, as set out in their 2004–2007 Corporate Plan, is 'reducing re-offending through secure, safe and humane management of offenders (NSW DCS, 2004b, p. 1). The values and principles outlined in the plan, which guide Corrective Services in NSW include (inter alia):


Consequently, the current strategic objectives of DCS, to reduce re-offending by providing a safe and supportive environment both within and to some extent beyond the prison walls, formed the starting assumption for our investigations.

Preliminary investigation of the literature concerning prisoners suggested a relationship between legal need and re-incarceration. In particular, studies have identified the detrimental impact of accumulated legal and other social problems on the ability of a released prisoner to become re-established in the community and avoid offending (Borzycki, 2005; Baldry, McDonnell, Maplestone & Peeters, 2003; Aboriginal and Torres Strait Islander Social Justice Commissioner, 2002; Dutreix, 2000; Stringer, 1999). Problems cited include debt (including fines), housing and family matters such as child residency. Given this, the aims of the administration of prisons to maintain the welfare of prisoners when incarcerated and reduce their chance of re-offending once released may be negatively affected if legal matters are not attended to during incarceration. Therefore the role of prisons as broadly stated by DCS administration is compatible with facilitating prisoners' capacity to address their legal needs in prison.

More specifically, it appears that there is no barrier at law that precludes imprisoned people from securing legal advice and participating in legal processes. For example, Section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides that inmates may attend courts (including Children's, Federal and Family courts) whilst incarcerated. Further, while the right to legal representation for any person, including prisoners, is not enshrined in Australian law,4 the DCS Operations Procedures Manual for all prisons in NSW makes the following provision in relation to accessing legal resources:


In summary, access to legal advice and legal processes is not denied to the prisoner at law. Moreover, the administering government department commits to supporting prisoners' access to legal resources. This project consequently investigated the prisoners' legal needs and their capacity to access justice from the starting point that, at law, their access to legal assistance is preserved and should not be unduly compromised by their incarcerated state. However, it is clear that, by its very nature, incarceration presents a very real and literal barrier. Consequently, the actual experience of prisoners in accessing legal assistance and advice, and participating in legal processes whilst incarcerated, remains in question and forms the basis of this study. This project attempted to examine whether prisoners and services providing and facilitating access to justice within this framework successfully negotiate the unique challenges posed by imprisonment.

Scope

Target group

One of the first issues that needed to be defined was the target group of our project. Broadly speaking, the term 'prisoners' could include people who have been arrested and are in police custody, people in jail or juvenile detention, and people who are detained by the Department of Immigration and Citizenship (DIAC). While all of these groups may face access to justice issues, the focus of our study was on prisoners whose 'confinement was the responsibility of a corrective services agency'. That is, people who were held in full-time custody in a NSW correctional centre.Periodic detainees and those on home detention were excluded from the project. However, offenders in police/court cell complexes managed by DCS are included.5 The sample was further restricted to adults as the Juvenile Justice System (covering people aged younger than 18 years) is sufficiently different to the adult system to warrant separate investigation.

However, to fully appreciate legal need in this context, we have also drawn upon the experience of people recently released from jail. Their experiences remain pertinent to the legal needs of serving inmates for several reasons:


For these reasons, while the primary focus of the project was on prisoners, we also interviewed ex-prisoners and report some data on the legal issues and access to justice issues facing people recently released from jail.

'Access to justice'


The term 'access to justice' may be taken to refer to the removal of practical barriers to the law and legal processes (e.g. physical access, costs, complexity,) or more broadly, to a rethink of the role of law in contemporary society (Renouf, 2003). In this study, like previous projects conducted within the Access to Justice and Legal Needs (A2JLN) research program, the term has been drawn at a fairly structural level. We have considered 'access to justice' in terms of the range of personal, systemic and cultural factors (and the interplay between these factors) which may impair or facilitate the capacity of prisoners to access and use legal information and advice. Given the very literal barriers presented by incarceration, we have also included access to formal legal representation, courts and tribunals, and the effectiveness of that access.

While we recognise that 'access to justice' can be construed more broadly than this, we have not, in this study, analysed broader notions of 'rights' or 'justice', beyond what the law currently states. Rather, the project has endeavoured to investigate issues of access to justice according to the law as it stands. However, the legal landscape for prisoners differs in some ways from that of other citizens. There are some laws and regulations that apply only to prisoners (such as the law and regulations surrounding parole or behaviour in prison). There are other laws which specifically exclude prisoners or certain prisoners from particular privileges or 'rights' held by other citizens (such as the right to vote in an election). These are described in Appendix 1.

Legal needs

In order to appreciate the access to justice issues that prisoners experience, we first had to establish what types of legal problems are faced by prisoners, or are likely to develop during the course of, or as a result of imprisonment. We have explored criminal, civil and family law issues facing inmates, as well as the circumstances associated with those problems developing. In terms of assistance with legal problems, we have looked at help provided by legally trained professionals, as well as the assistance provided by non-legal advocacy and support agencies/personnel, both within and outside the jail system, to resolve or prevent legal problems.

In addition to the above, in our examination of prisoners' ability to access justice we have analysed both the capacity of inmates to access 'end product' events such as legal advice or court attendance, as well as the intermediary steps that lead to those events. This includes, for example, the ability to obtain information about how to contact a lawyer from prison or how to get to visit the prison library. These intermediary steps, as will be shown in subsequent chapters, are especially important in the prison environment and have assumed a prominent role in our discussion of access to justice. Accordingly, 'access' to justice has been treated more broadly than just physical access to legal information, advice, representation, or legal processes. It has been taken to include the efficacy of that access, for example the quality of a prisoner's interaction with their lawyer.

Report structure

This report is divided into three main parts: background, results and analytic chapters. The first part provides the broader context to the study and includes a description of prisons and prisoners in NSW along with a review of the literature on prisoners and their legal needs (Chapter 2). This part also includes the method used to collect the data for this analysis in addition to a description of the inmate sample (Chapter 3). The second part reports on the raw results of the study, specifically: the legal issues reported by interviewees in the sample (Chapter 4) and the opportunities and barriers to access justice described by the interviewees (Chapter 5). The third part of the report contains the analysis and discussion chapters. Four analytic chapters (Chapters 6–9) examine the factors underlying the barriers described in Chapter 5. The discussion and policy implications chapter (Chapter 10) also includes the conclusion.



Ch 2. Background


Prisons and the prisoner population in NSW

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

Prisons in NSW

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

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

Prison staffing

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


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

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

Prisoners in NSW

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

Imprisonment rates

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

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

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

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


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

Inmate population by stage of incarceration

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

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


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

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

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

Offenders in police/court cells

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

Remand inmates

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

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

Table 2.3: Inmate security classification, 30 June 2006

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

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

Sentenced inmates

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

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



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

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

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

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

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

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

Release and recidivism

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

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


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

Characteristics of NSW prisoners

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

Age and gender

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

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

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

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

Indigenous status

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

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

Cultural and linguistic background

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

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

Marital status and children

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

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

Table 2.5: Inmate's number of children under sixteen

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

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

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

NSW prison inmates and disadvantage

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

Prisoner health

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

Addiction and addictive behaviour

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


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

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



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

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



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

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

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

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

Histories of violence and abuse

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

Histories of state care

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

Literacy levels and education

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

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

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

Employment histories and welfare dependence

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

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


Homelessness

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

Summary

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

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

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

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

Legal issues

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

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

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

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

Access to legal information

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


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

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

Prison libraries

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


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

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

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

Access to legal advice and representation

Review of the NSW Prisoners' Legal Service (PLS)

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

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

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


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

Legal Aid Queensland study

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


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

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



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

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

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


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

Overseas studies

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

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

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


Lajeunesse (2002) also identified concerns about the level of knowledge or experience among lawyers working in prisons and about the length of time taken to process legal aid applications for disciplinary matters (p. 3). Further, inmates outlined what they considered to be the best option to provide quality legal services in prisons:
Considered together, the above studies indicate that prisoners may have trouble accessing legal advisers and, conversely, solicitors can have trouble reaching their inmate clients. The very physical barriers placed between inmates and the outside world such as restricted visit times, limited and timed telephone calls, and that the inmate cannot directly receive telephone calls even from his or her lawyer, has inhibited the capacity of inmates to obtain legal advice.

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

Participation in legal processes

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

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

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


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

AVL for court and legal conferences

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

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

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

Conclusion

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

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

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

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

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



Ch 3. Method


As may be seen by the preceding section, to date, there has been no comprehensive research regarding the legal needs of prisoners in NSW. The aims of the project, as stated in the introduction, are to examine the ability of prisoners in NSW to obtain legal information, advice and representation, and to participate effectively in the legal system. Qualitative interviews were used to explore the experiences of prisoners and people recently released from prison. The perspectives of DCS staff and other legal and non-legal service providers who support both prisoners and ex-prisoners were also sought through one-on-one interviews and a small number of focus groups. The following chapter describes the procedures utilised in the collection and analysis of the data which form the basis of this report.

Data collection

Prior to the main data collection phase, four key informants were consulted in order to gauge the scope and direction of the project. The informants were a senior solicitor with the PLS, the Chief Executive Officer of a non-government organisation that supports prisoners and their families, a university academic who has conducted research with ex-prisoners, and a staff member at the head office of DCS. These people provided invaluable guidance as to appropriate selection characteristics for both stakeholders and inmate interviewees, the breadth of areas to cover in terms of legal problems, and the issues to consider in conducting research in a prison environment.

There were two main populations drawn upon for the empirical data component of our research: an inmate (including ex-inmates) population and a stakeholder population (DCS staff and non-DCS workers). As it was necessary to conduct the interviews with prisoners and the majority of interviews with DCS staff on site at the prisons or probation and parole offices, an application was made to the Commissioner of the DCS (and, inclusive of this, to the DCS Ethics Committee) in August 2005 for permission to conduct the research. The project was approved on 18 November 2005 allowing access to 40 prison inmates, 10 parolees on parole and 10 DCS staff. These numbers were subsequently extended with approval to 46 inmates and 20 DCS staff.

The interviews were conducted by six experienced researchers (four permanent staff of the Foundation and two casual employees recruited specifically for the project). Given the unique circumstances of the target population, all interviewers attended a day training course that covered a refresher on qualitative interview techniques as well as specific issues relating to interviewing an inmate population. The training was conducted by a researcher with considerable experience in collecting data from people in custodial settings. This preparation was invaluable in terms of setting realistic expectations for recruitment, pre-empting problems in gaining access to prisoners, and increasing awareness of the potential risks to the safety and peace of mind for the researcher and inmate alike.

The following sections describe in detail the procedures used to collect data from each of the prisoner and stakeholder populations, followed by a description of the techniques employed to analyse the combined dataset.

Prisoners and ex-prisoners

Population and sampling

The prisoner sample for this project consisted of people who were, at the time of data collection, in full-time custody, or had been released from full-time custody in the last two years. The latter group consisted of both parolees and people who had been released unconditionally in order to capture any differences in the legal need experienced by people in contact with a parole officer compared with those without such contact.

Current inmates were drawn from five NSW prisons. Prison selection was aimed at yielding a range of interviewees in terms of geographic location, degree of security (at a facility level) and gender of inmates. In consultation with DCS, the following correctional centres were selected:


For the ex-prisoner sample, parolee interviewees were drawn from three probation and parole services. One was located in southern Sydney, one in south-western Sydney and the other in rural NSW.

Determining a recruitment pathway for ex-prisoners not on parole was less straightforward compared with the two subgroups described above given the lack of formal links between these ex-prisoners and any particular service, such as probation and parole. The approach taken was to request the assistance of a number of services used by ex-prisoners, mainly from the Foundation's existing agency networks. Four non-legal support agencies (housing and welfare support serving, amongst others, ex-prisoners) agreed to assist the Foundation project team in recruiting interviewees. Two of these agencies were located in an area close to a rural prison; the remaining two were located in the suburbs of Sydney.

Description of the inmate sample

In order to ensure coverage of a variety of experiences, interviewees from a range of backgrounds and custody status were sought. Appendix 2 details the sampling frame used to guide the selection of people for interview. Table 3.1 displays the demographic characteristics of the final sample. Forty-six prisoners and 21 ex-prisoners were interviewed for this study. The majority of interviewees were over the age of 25. Twenty-eight interviewees were aged between 25–34 and 36 interviewees were over the age of 35. Only 10 per cent interviewees were under the age of 25.19

Reflecting the representation of women in prison across the NSW prisoner population, only eight women were interviewed and the remainder of the sample were men. In terms of cultural background, the majority (55%) of interviewees were from an Anglo-Saxon background. Recognising both the over-representation of Aboriginal people in NSW prisons, together with the unique experiences and particular needs of Indigenous Australians, care was taken to ensure that Aboriginal people were appropriately represented. Twenty-seven per cent of the final sample identified themselves as Aboriginal people. Ten prisoners and two ex-prisoners were from a Non-English Speaking Background (NESB) (18% of sample) including Lebanese, South American, Pacific Islander, Burmese, Greek and German interviewees.

Consistent with the description of this population earlier in this report, the majority of inmates reported limited educational experience with 22 per cent not finishing year 10, and seven per cent not finishing primary school. Thirty-eight per cent left school between years 10–12 and none had completed university. Finally, over two-thirds (45) of those sampled had children.



Table 3.1: Demographic characteristics of inmate sample
Prisoners
n = 46
Ex-Prisoners
n = 21
Total
n = 67
% (n)
Age
Under 25
5
2
10% (7)
25–34
21
7
41% (28)
Over 35
18
12
45% (30)
Unknown
2
0
3% (2)
Gender
Female
6
2
12% (8)
Male
40
19
88% (59)
Background
Anglo-Saxon
22
15
55% (37)
Aboriginal
14
4
27% (18)
NESB
10
2
18% (12)
Education
Less than primary
4
1
7% (5)
Less than Year 10
8
7
22% (15)
Yr 10–Yr 12
18
8
39% (26)
Some tertiary (TAFE or university)
11
4
22% (15)
Completed TAFE
3
1
6% (4)
Unknown
2
0
3% (2)
Children
Yes
31
14
67% (45)
No
15
7
33% (22)
Note: Some percentages do not add to 100 due to rounding. Percentages calculated as a proportion of the total sample (n = 67), including those for whom data was missing.

Table 3.2 displays the characteristics of the inmate sample across a number of characteristics associated with their imprisonment. Sixty-nine per cent (34) of the prisoners interviewed were incarcerated at the time in urban jails and the remaining 31 per cent (12) were located at a rural/regional prison. Among the ex-prisoner interviewees, twelve resided in the city and nine were from a regional/rural area.



Table 3.2: Prison-associated characteristics of inmate sample
Prisoners
n = 46
Ex-Prisoners
n = 21
Total
n = 67
Area
City
34
12
69% (46)
Regional/rural
12
9
31% (21)
Status
Remandee
19
n/a
28% (19)
Sentenced
27
n/a
40% (27)
Parolee
n/a
15
22% (15)
Non-parole release
n/a
6
9% (6)
History
First time in prison
21
6
40% (27)
Been previously incarcerated
23
13
54% (36)
Unknown
2
2
6% (4)
Classification1
n = 46
Maximum
9
n/a
20% (9)
Medium
10
n/a
22% (10)
Minimum
18
n/a
40% (18)
Protection
6
n/a
13% (6)
Unknown
3
n/a
7% (3)
Stage1
New inmate (<3 months)2
7
n/a
15% (7)
Established inmate (> 3 months)
35
n/a
76% (35)
Pre-release (<6 months to go)
4
n/a
9% (4)
Sentence3
n = 27
n = 23
n = 50
<6 months
1
4
10%(5)
6 month–5 years
11
16
54% (27)
>5 years
15
3
36% (18)
Notes:
1 The classification was calculated as a percentage of only those currently held in prison (n = 46).
2 All new inmates were on remand.
3 The sentence was calculated as a percentage of sentenced and released inmates only (remandees excluded) (n = 50).

In terms of imprisonment status, the sample included 27 sentenced inmates, 19 inmates on remand, 15 ex-prisoners on parole and six inmates released unconditionally. Among the current prisoners (n = 46), nearly 40 per cent (18) were held in minimum security, while 22 per cent (10) were in medium security and 20 per cent (9) were held in maximum security.20 A further six interviewees were in protective custody. No prisoners currently in segregation were interviewed.

Of all interviewees, 40 per cent reported that this had been their first time in prison (21 prisoners and six ex-prisoners) however over 50 per cent reported that they had been incarcerated before (23 prisoners and 13 ex-prisoners).

Seven inmates, all remandees, had been in prison for less than three months, and were unaware of how long they would be incarcerated for. More than three-quarters of the inmate interviewees (39) had been in prison for longer than 3 months. Four of these established inmates had six months of their sentence remaining to be served.

We have included information about the length of sentence for both those currently serving and those recently released. The length of sentence for those recently released was the sentence associated with their most recent incarceration. Fifty-four per cent (11) of interviewees who were serving, or had served a sentence, were serving (or had served) prison terms of between six months and five years. A further 36 per cent (18) had sentences of over five years. Only five of our interviewees were serving or had served sentences of less than six months. Therefore, short term inmates (jailed for less than six months) are considerably under-represented in our sample. In recognition, we have drawn upon the stakeholder interviews and other literature to consider the particular issues facing this group of inmates.

Procedure

Recruitment

Recruitment of interviewees who were current inmates was facilitated through a liaison person located at each of the correctional centres. Once DCS had approved the research, the liaison person at each facility was identified after we wrote to the general managers and asked them to nominate a staff member to act in this capacity. In general, the liaison person was a welfare officer, education program manager, or security manager. The senior researchers on the project visited each centre in Sydney to ascertain appropriate interview spaces, and to familiarise themselves with prison entry and security procedures. Liaison persons were sent a suggested profile of the prisoners along the lines of the characteristics listed in Appendix 2, and other requirements were given where appropriate. The only exclusion stipulated was that potential interviewees should not pose a threat to the researchers, although inmates charged or convicted of a violent crime were not automatically excluded. There were no other restrictions in terms of competence to participate other than that the interviewee could participate in an interview conducted in English to a degree where they felt comfortable doing so. After discussion with DCS research staff, it was decided that interviewees currently in prison would not be offered an incentive to participate for a number of logistical and ethical reasons. The researchers attended the prisons at a pre-arranged date and time and interviewed inmates typically in legal or general 'visits rooms'. Although interviews were conducted within the sight of prison officers (either directly or via security camera), they were kept confidential by being conducted beyond the hearing of prison staff.

Recruitment of ex-prisoners on parole was facilitated through managers or unit leaders located at the three probation and parole services described above (see 'Population and sampling'). As with the sample of current inmates, liaison persons were sent a profile of the desired interviewee sample outlining the desired demographic characteristics (e.g. sex, ethnicity and length of time served) to guide interviewee selection. The liaison persons were also provided with information to pass onto potential interviewees. An incentive of $30 was offered in order to encourage people to take part. The researchers attended the service at a pre-arranged time and interviewed the parolees in parole interview rooms.

For unconditionally released ex-inmates, after initial contact was made with the host organisation, as with the probation and parole offices, staff were provided with information to give to potential interviewees. As with the parolees, an incentive of a $30 payment was offered. Researchers attended the service at a time and on a day convenient to the interviewee and the host organisation, and the interviews took place in the services' interview rooms or private offices.

It should be noted that among the ex-prisoner sample, seven interviewees who had originally been identified as having been released unconditionally by the host agency had subsequently been found to have originally been released on parole, though they were no longer on parole at the time of interview. However, given that six unconditionally released ex-prisoners had already been interviewed, the difficulties encountered in recruiting this group (perhaps because of their lack of formal requirements to report to services post-release) and the need for the project to progress to the analysis stage, further recruitment among this group was not pursued.

Interviews

Interviews with inmates and ex-inmates commenced with a short description of the Foundation and the research project. To ensure informed consent, researchers also ascertained from the potential interviewee that they were clear about the purpose of the interview. They were also provided with the appropriate information sheet and a consent form that was read out aloud to them by the researcher (see Appendix 3). The form indicated that participation was anonymous and voluntary, that the interviewee could choose not to answer any questions and that they could stop the interview at any time. It also specified that, with their permission, the interview would be recorded and transcribed and that the transcribed material would be kept securely. They were further assured that the recording would be erased once transcribed.

The consent form included a description of the researchers' obligation with respect to the disclosure of criminal activity and that otherwise the interview was confidential. Interviewees were also reassured that DCS would not be privy to interview recordings or transcripts. Researchers further ensured that interviewees were informed as to how and in what context the information they volunteered may be used. Once this procedure was complete and the interviewee agreed to go ahead with the interview, they signed the consent form, which was countersigned by the researcher. The consent form was detached from the information sheet, and the latter left with the inmate.

The interview schedules (one for prisoners and one for ex-prisoners) were in the format of a series of semi-structured, open-ended questions seeking information about the interviewees' experience of different legal problems, what steps they had taken (if any) to remedy them and the current status of that problem (see Appendix 4). The schedules covered a range of issues, including general legal issues, housing, employment and income, credit and debt, family, crime, victim of crime issues, health, other legal matters and access to legal assistance issues.

If an interviewee indicated that they had a legal problem but had not sought to resolve it, they were asked why that was so. The questions were worded in such a way that the inmate did not have to identify an issue as necessarily a 'legal' problem such that latent issues would not be missed. Interviewees were also asked specific questions about legal service provision they had received in the past and problems they may have had in accessing a legal service. The only difference between the interview schedule for current and released prisoners was that questions were phrased to reflect their current situation in terms of their incarceration.

Population and sampling

Stakeholders interviewed for this study fell into two major groups: DCS staff and other service providers.

DCS staff interviewees included prison welfare staff (including a financial counsellor), parole officers, library staff, education officers, policy workers, 'Throughcare'21 workers, and department managers working both within correctional centres and in head office. Interviewee selection was based on the analysis to date and recommendations from workers in the field.

Interviews were conducted with 23 legal and non-legal service providers who provide support to prisoners and people recently released from prison. Interviewee selection and recruitment of this group was based on the research team's knowledge of workers in the field, and further recommendations from the stakeholders interviewed. We interviewed staff from Legal Aid NSW and the ALS, specialist and generalist community legal centres, pro bono legal service providers, public defender staff, LawAccess staff, and some private barristers and solicitors; government agencies including Centrelink; advocacy and support groups, such as Community Restorative Centre (CRC) and Prisoners' Aid and Justice Action; other post-release support services (including Supported Accommodation Assistance Program (SAAP) and other homeless services); and, official visitors. A complete list of the agencies interviewed is contained in Appendix 5.

Procedure

Nineteen DCS staff were interviewed between February and August 2006 using semi-structured open ended interviews (see Appendix 4). Interviewees were provided with an information sheet and required to sign a consent form (see Appendix 3). Interviews were typically conducted on site in the staff member's office or another office space that provided a quiet and confidential environment. An interview schedule was developed specifically for DCS staff. One of the first steps required in the interview was a description of the role the staff member had in the department and the degree of contact they had with prisoners. Those staff members who had direct contact with prisoners were also asked to detail the degree to which prisoners came to them with legal issues, what legal issues did the prisoners require assistance and what did the staff member do in response to those requests. Interviews with head office staff focussed on obtaining a description of the systems that affected the legal needs of prisoners for which he or she was responsible and their opinion as to the impact of those systems.

Interviews with non-DCS stakeholders took place between December 2005 and May 2006 and were conducted face-to-face, mostly individually or in small groups of two or three. A roundtable consultation of legal practitioners was also held. The interview schedules included a number of open-ended questions, a subset of which was covered in all interviews. Further questions were tailored to the particular expertise of the interviewee. For example, the financial counsellor was asked more in-depth questions about credit and debt problems prisoners and ex-prisoners might face. Areas typically explored concerned the types of legal issues prisoners and ex-prisoners faced and what were the ways in which they tried to resolve those issues. Stakeholders were also asked about the particular types of legal issues for which prisoners/ex-prisoners requested assistance, and how the stakeholder dealt with that role. An example of interview questions used for these service providers can be found in Appendix 4.

As outlined in the information and consent forms for the prisoner and DCS staff interviewees, all data collected was considered confidential and could only be directly accessed by members of the research team. Three external transcribers were contracted to transcribe the majority of the interviews across the inmate and stakeholder samples. Researchers transcribed a small number of interviews when an interviewee expressed a particular concern about confidentiality and the researcher had consequently committed to personally transcribing that interview. The external transcribers were experienced in handling confidential social research interview material. They were required to sign a confidentiality agreement and meet specified security arrangements with the data. All transcription files once commenced were pass-worded and kept in computer folders with restricted access. Identifying information contained within the interviews was deleted or modified to protect interviewees' and their family/friends' identities in the transcripts and to ensure that publications arising from the project did not breach their privacy. All the names of inmate used in this report are pseudonyms.

Once both the stakeholder and inmate interviews were transcribed, the transcripts were entered into a qualitative software analysis program called QSR NUD*ST Vivo (Nvivo). This program assists in the organisation, storage and retrieval of qualitative data. It does not, however, impose any kind of pre-existent system of interpretation.

The analysis was conducted in two stages. In the first stage, the research team tagged segments of text with regard to its relevance to certain issues (e.g. DCS procedures, court procedures and government agency procedures) or whether the segments referred to the actions of the staff of such agencies, the inmates or their friends and family. To promote consistency of this process across the 109 interviews, a small number were coded by all researchers and then compared. From this procedure, a common coding system was developed and researchers further ensured consistency by frequently checking and rechecking coding decisions with the other researchers.

In the second stage, the data was then reviewed using the retrieval mechanisms of Nvivo, and it was then reanalysed for themes that recurred throughout the interviews around interviewees' decision-making processes. This was an iterative process whereby commonalities and systematic relationships were identified and then tested against the data. Preliminary observations made prior to the data being coded (e.g. issues identified while the interview data was still being collected) also informed this process. Departures from the major directions of these themes were also sought to ensure that the complexity of the responses of the interviewees was reflected in the analysis.

Although the findings described here have emerged from a systematic approach, it should be understood that because a quotation or practice has been included under one theme and interpreted in a certain way, this does not mean that we believe that that is the only way to interpret that event. Moreover, the aim of qualitative data analysis is to understand the meanings and processes associated with a particular phenomenon (Ezzy, 2001), in this instance, the access to legal information, advice, representation and participation in legal processes among prisoners. Consequently, the themes that are described here are selected, not so much for their popularity (although some of the strength of a theme may be related to the extent to which it is mentioned) but more for their ability to elucidate the experiences reported by the interviewees. Accordingly, qualitative analysis, in this context and more generally, focuses on the 'how' and 'why', rather than the 'how often'. This analysis consequently represents how the current researchers conceptualised the responses of the interviewees in relation to the central issues of the project. In this way, the themes described here, and the quotes used to illustrate them, should be viewed as only one approach to making sense of the data collected.



Ch 4. Legal Issues Affecting Prisoners


Before we can examine the capacity of prisoners to access justice, it is necessary to appreciate the nature of their legal needs. As will be illustrated in this chapter, the legal needs of prisoners are neither singular nor static. While, by definition, all prison inmates have, or have had a criminal law issue, we have found that prisoners also experience a range of other civil and family law issues. Some issues are related to their financial disadvantage and personal histories such as pre-existing debts and fines; others stem from imprisonment (e.g. breaches of prison rules) and separation from the outside world. Even when inmates leave prison, they may experience particular legal issues arising from their incarceration (e.g. discrimination in employment, housing, or an inability to manage outstanding and increasing debt). Consequently, the nature of the legal problems faced by prisoners can change as their incarceration progresses. This chapter presents information about the legal needs of inmates, as reported by our interviewees. However, where appropriate, and to contextualise our findings, we have also drawn upon supplementary data, legislation and available literature.

Criminal justice issues

While all prisoners face (or have faced) conviction for one or more criminal offences, they also may be subject to a number of other criminal justice processes during and after their period in custody. Specifically, as well as dealing with issues concerning the principal offence, prisoners may need to address bail, correctional centre disciplinary offences, warrants and parole. During post-release, prisoners will need to deal with varying degrees of police attention. Apprehended violence orders (such as an Apprehended Violence Order (AVO) and an Apprehended Domestic Violence Order (ADVO)) are included as a criminal justice issue as the breach of these orders is a criminal offence.

Principal offence

People are held in NSW prisons for a wide variety of offences. As 30 June 2006, 12.4 per cent of all NSW inmates were in custody with a drug offence as their 'most serious offence'. The next most common 'most serious offence' was major assault (11.7% of inmates), followed by break, enter and steal (11.3%). Other 'most serious offences' included: robbery with major assault (7.6%), other forms of theft (7.3%), driving/traffic offences (6.6%), murder (6.5%), breach of parole (6.5%), serious sexual assault (5.9%), other (non-major) assault (5.6%) and offences against good order (5.1%) (Corben, 2006a, p. 22).

It is important to note that we did not ask our inmate and ex-inmate interviewees about the offences for which they went to prison. However, during the course of our discussions, some interviewees revealed they were incarcerated for offences including drug trafficking, assault, murder and attempted murder, sex offences, Department of Community Services (DOCS) related offences, traffic offences, breach of parole, property damage, burglary, breached AVO/ADVOs and other, drug related offences.22 As indicated in the previous chapter, 19 (41.3%) of our prisoner sample were on remand for their offence and 27 (58.7%) had been convicted.23

Once convicted, an inmate's resolution of their criminal matter(s) may continue should they choose to appeal their sentence or conviction. Several inmates in the study reported that they had appealed or were in the process of appealing either their sentence or their conviction:

— Raul, male sentenced inmate, minimum security, 35+ years, NESB, urban prison

Appeals are relatively common among inmates, with 4.9 per cent of all NSW DCS inmates held as at 30 June 2006, awaiting appeal (NSW DCS, 2006d, p. 19).

Bail

One of the first legal actions to be considered when someone is taken into custody is an application for bail. Bail is an agreement to attend court to answer a criminal charge. While not all inmates may be eligible for bail, bail can be granted at any stage during criminal proceedings. Certain conditions can be attached to a grant of bail if they are considered necessary for law enforcement purposes and the welfare of the community (Barry, 2004, p. 106). For example, conditions may include agreeing to reside in a bail hostel, or posting an agreed amount of money to be forfeited if the accused person fails to comply with his or her bail undertaking.24 Inmates on remand have either been refused bail, are ineligible for bail or cannot meet bail conditions. For instance, stakeholders interviewed for this study spoke of prisoners remaining on remand because they could not raise funds to post bail:

— Custodial manager, rural prison

Further, a person can be re-arrested if they have breached their bail conditions (Barry, 2004, pp. 102–107). A number of inmates, who had been granted bail prior to sentencing reported having difficulties complying with bail conditions and consequently were breached and incarcerated:
— Paul, male sentenced inmate, minimum security, 25–34 years, non-Aboriginal, urban prison

In a 2001 parliamentary inquiry into increases in the NSW prison population, concern was already being expressed about the increasing number of prisoners being refused bail and the number not able to meet bail conditions. One corollary of this trend noted in the inquiry was an increase in the remand population (NSW Legislative Council, 2001, ss. 5.30 and 5.47). In July 2002, the Bail Amendment (Repeat Offenders) Act 2002 (NSW) amended the Bail Act to the effect of removing the presumption in favour of bail for repeat offenders, which led to further increases in the bail refusal rate of 7 per cent (Fitzgerald & Weatherburn, 2004, p. 1). Correspondingly, in the 18 months after the legislation was amended, the remand population increased at an average of 6 per cent per month (Fitzgerald & Weatherburn, 2004, p. 6).

There is some literature to suggest that certain sectors of the population, such as people with intellectual disabilities, homeless people and Indigenous people are more likely to be refused bail and held on remand than others. For instance, the NSW LRC (1996) observed that 'people with an intellectual disability may have to be kept in custody inappropriately because of lack of understanding of bail conditions or lack of support in the community' (section 4.7; see also Simpson et al., 2001, pp. 48, 53, 61). Forell et al. (2005) also noted the particular difficulties homeless people have in getting bail as the result of not having a stable contact or address (p. 238).

As well as seeking to reduce the availability of bail for repeat offenders as mentioned above, the Bail Amendment (Repeat Offenders) Act sought to improve access to bail for groups of people with special needs, including Indigenous people (Fitzgerald & Weatherburn, 2004, p. 1). However, a review of the impact of this Act found that, between January 2001 and December 2003, the rate of bail refusal for Indigenous adults actually increased by 14.4 per cent compared with a 7 per cent increase in the bail refusal rate for non-Indigenous people (Fitzgerald & Weatherburn, 2004, p. 5). The authors suggest that this may be because Indigenous offenders are more likely than non-Indigenous offenders to appear in court with a prior criminal record (see Weatherburn, Lind & Hua, 2003), thereby including them in the group of repeat offenders that the changes were designed to target (see also AJAC, 2002). Overall, the types of issues raised by our interviewees concerning the difficulties of getting and staying out on bail are reflected in the broader literature.

Disciplinary offences

Prisoners are subject to a set of regulations, which have disciplinary consequences. Under Part 2 Division 6 of the Crimes (Administration of Sentences) Act, the governor of a correctional centre can charge an inmate and conduct an inquiry if it is alleged that the inmate has committed a 'correctional centre offence'. A correctional centre offence refers to any act or omission by an inmate that occurs whilst they are in prison and is declared to be an offence under section 51 of the Crimes (Administration of Sentences) Regulation (regardless of whether the act is outside the prison context a criminal offence or not). This includes acts that are specific to prison management and the maintenance of good order, as well as assault or damage property. Examples of the types of disciplinary offences inmates face include:


In a Canadian study of legal needs, inmates identified legal assistance for disciplinary offences as the most critical area of legal need in federal prisons (Lajeunesse, 2002, p 2). In our study, however, while inmates described being subject to internal DCS disciplinary processes, these issues were not emphasised over their other legal needs. One inmate described being disciplined for having a 'dirty urine' reading, where recent drug use was detected through a urine test. Another inmate, who worked in the prison kitchen, reported having been disciplined for giving leftovers to other inmates without the permission of the supervising custodial officer:
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

Of note is the fact that inmates do not have access to legal representation when charged with a correctional centre offence heard by the governor:
— Custodial officer, urban prison

In NSW, the most common charges heard by correctional centre governors in 2005–06 were 'charges against good order' (3 216 charges), 'other [non alcohol] drug charges' (2 202), 'abusive behaviour' (1 094), 'fighting or assault' (1 022), 'property damage' (826), 'stealing' (775), 'failure to attend muster' (768) and 'refuse to provide a urine sample' (642). Overall, the governors in 2004/5 heard a total of 10 588 charges (NSW DCS, 2006d, p. 27).

Another legal administrative area unique to inmates concerns their classification status.

— DCS welfare officer, urban prison

In NSW, security classifications (segregation and enforced protective custody directions) for 'serious offenders' (generally people in custody with a non-parole period of at least 12 years) are reviewable by an independent statutory authority, the Serious Offenders Review Council (SORC). In 2004, SORC received 63 applications seeking reviews of segregation or protective custody directions, 26 of which proceeded to hearing (SORC, 2006, p. 10). The Council recommended that 15 inmates (out of a total of 39 applications) have their escape-risk classification removed (SORC, 2006, p. 4) and the Commissioner approved eight of these recommendations (p. 9). Although no interviewees for this study had appealed a decision to the SORC, the inmates we spoke with described the gravity of being segregated or put in protective custody. Many inmates described protection as something to be avoided given the connotations that those on protection may be either informants or paedophiles, both despised within the prisoner population.
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Apprehended violence orders

AVO/ADVOs are orders that aim to protect people from acts of violence. They do not impose a criminal record but it is a criminal offence to breach an order (Barry, 2004, p. 502). A few inmates interviewed for this study said that they currently had AVO/ADVOs in place against them:

— Ryan, male parolee, 35+ years, non-Aboriginal, rural area

When inmates first come into prison, they are asked by the reception officer if there is an order currently active against them. The purpose of asking inmates whether they have an AVO/ADVO operative is that prison officials can prevent inmates from attempting to contact the applicant to the AVO/ADVO. However, one worker suggested that inmates did not always reveal whether they were the respondent to an AVO/ADVO. If the prison subsequently gives permission to the inmate to contact the applicant to the AVO/ADVO because they are unaware the order is in place, the inmate will have breached the AVO/ADVO:
Further, an inmate may not be aware that they may be deemed to have breached an AVO/ADVO if they attempt to contact the applicant by telephone from prison (as opposed to approaching them in person). Inmates may also try to contact their partners when they leave prison on parole thereby incurring a breach and having their parole revoked:
— Probation and parole unit leader, rural area

Another problem noted by the same worker was that both applicants and respondents did not always understand the terms of the AVO/ADVO to which they were a party. For example, an applicant may not realise that they are putting the respondent at risk of breaching by visiting them in prison.
— Non-custodial staff manager, urban prison

Warrants

Warrants were also raised as an issue affecting prisoners by our interviewees. A warrant is a written authority that enables police officers to arrest a named person. One welfare officer explained that in prison, warrant files are kept by the staff who hold records of all legal orders and bail orders. Inmates can apply to their wing officer to have any additional (that is, additional to matters previously dealt with) warrants 'called in' (executed). However, according to our interviewees, it was alleged that there is no routine process for police or prison officials to check warrants. This means if inmates have not 'called in' their warrants while in custody, or if new warrants have been issued, they are vulnerable to being re-arrested as soon as they leave jail:

— Probation and parole officer, urban area

Interviews with both inmates and DCS workers suggest that inmates were sometimes being served with warrants as they exited jail. As a consequence, they would then serve jail time in addition to their original sentence, when the new sentence could have been served concurrently had the warrant been executed earlier. There was a perception among some interviewees that police were doing this deliberately, so they could re-arrest certain inmates upon release:
— Wahib, male remandee, minimum security, 25–34 years, NESB, urban prison

Warrants and the collection of DNA

A further issue associated with warrants raised in interviews, was the collection of DNA. In 2000 the NSW government introduced the Crimes (Forensic Procedures) Act 2000 authorising the collection of DNA samples from 'serious indictable offenders' currently imprisoned in NSW. These samples are stored on a national DNA database enabling inmates' (and others') DNA profiles to be cross-matched with DNA samples from crime scenes (Gans & Urbas, 2002, p. 3). In the eighteen-month review period adopted by the NSW Ombudsman, 10 000 inmates in correctional facilities were subject to DNA sampling (NSW Ombudsman, 2004).

Concern has been expressed by prisoner advocates about the collection of DNA from inmates, its implications for privacy (see Justice Action, 2008) and the threat it poses for public health protection in prisons as inmates fear providing pathology samples for fear of forensic evidence being taken (Levy, 2002, p. 252). Inmates serving custodial sentences for certain offences may be required to allow a DNA sample to be taken which may subsequently be used issuing new warrants for arrest. For the reasons given above, some inmates interviewed for this study feared that fresh charges may be laid as they come to the end of their sentence because of DNA evidence they had previously supplied:

— Simon, male sentenced inmate, medium security,
— Gary, male parolee, 25–34 years, Aboriginal, rural area

Parole

Release on parole involves an offender being allowed to live in the community prior to the completion of their full sentence period, on the proviso that they adhere to certain conditions of that parole (Jones et al., 2006, p. 1). When a prisoner is sentenced, a non-parole period is determined and inmates cannot be released until this period has expired. Prisoners serving three years and less are automatically released at the end of their non-parole period. However, prisoners serving more than three years can only be released on parole by the State Parole Authority of NSW (SPA) (Barry, 2004, p. 910). In determining whether an inmate is to be released on parole, in addition to the public interest, the SPA takes into consideration whether there is 'sufficient reason' to believe that the prisoner will be able to adapt to community life (Barry, 2004, p. 190). If the SPA expresses an intention to refuse parole, the governors or their delegates must ensure that the inmate is notified of this intention so that they can apply to the SPA to have the matter reconsidered at a hearing.

Eligibility for parole

A number of our prisoner interviewees were ineligible for parole and were either currently serving out their sentences or had been released from prison unconditionally, at the completion of a full sentence. DCS workers said that many inmates were unable to get parole because suitable accommodation could not be found for them. This emerged as a particular issue for people leaving rural and regional jails:

— Throughcare officer, rural prison

There was also the suggestion that inmates with cognitive impairment or intellectual disability were not granted parole as readily as other inmates because of a lack of support post-release (see also Chapter 6):
— Worker, CJSN

A number of interviewees raised concerns about inmates not being able to participate in education or behaviour related courses in jail that in turn affected their chances of securing parole. Interviewees spoke of courses being full or not offered in particular centres, and inmates losing their places in courses when transferred from centre to centre (see Chapter 7).

Breaching parole

As of 30 June 2006, there were 3 990 people being supervised on parole in NSW (NSW DCS, 2006d, p. 11, Table 6), comprising just over two-thirds of all released offenders. A key issue for parolees is to avoid breaching parole conditions and returning to jail for the remainder of their sentence. Research has suggested that 'many people who fail on probation or parole do so because they have breached the technical conditions of their parole orders and not because they have committed a criminal offence' (Jones et al., 2006, p. 2).

Our interviews indicated that some ex-inmates who had been successful in getting parole, breached it because they had had difficulty meeting their parole conditions post-release. For instance, people were reported to have breached parole for associating with 'known criminals' when they returned to live with family or in their community, because family or community members had also been convicted of crimes.

— Official Visitor, urban prison

Other breaches arose when ex-prisoners moved to a new address without informing their parole officer or had not complied with a mental health order to take certain medication.
— Probation and parole unit leader, rural area

Interviewees also indicated that the sheer volume of obligations facing ex-prisoners (e.g., to report for parole, to fulfil Newstart (social security) requirements and to maintain drug treatment regimes) can make it very difficult for ex-prisoners to meet all the terms of their release:
— DCS policy officer, head office

Adding to their difficulties are very practical problems such as limited and unreliable public transport, which can in turn impact on parolees' ability to turn up on time (or at all) to their various appointments:
— Parole officer, rural area

Interviewees also noted that some groups of parolees such as those with intellectual disabilities or Aboriginal parolees had particular difficulties with their parole. For example, the comment was made that people with intellectual disabilities may struggle to understand and keep to the terms of their parole:
— Lawyer (roundtable)

One parole officer felt that Aboriginal parolees were more likely to be classified as having a higher risk of re-offending because of their community ties and their more 'transient lifestyles'. This can result in Aboriginal parolees having more stringent parole obligations placed on them, with more appointments with family services, mental health professionals and their parole officer. Consequently, the chances of breaching are also increased:
— Probation and parole unit leader, rural area

As demonstrated above, inmates can agree to parole conditions prior to release that turn out to be unsustainable once they are living back in the community. To address this, some workers highlighted the need for released prisoners to be able to access the PLS after their release, to help amend parole conditions that are not practicable.

Police attention

Several ex-prisoners and other stakeholders interviewed reported that ex-prisoners were often stopped and questioned by police in public places. This appeared to be particularly so for ex-prisoners living in small, regional towns:

— Jason, male ex-prisoner, 35+ years, non-Aboriginal, rural area
— Probation and parole unit leader, rural area

These observations are consistent with the findings of earlier research about the experience of people recently released from jail. Participants interviewed in Baldry et al. (2003) also commented about the negative attention they had received from police following their release from jail (p. 22). While safe and secure housing was associated with being less visible on the streets and less targeted by police, even released prisoners in stable accommodation reported being stopped and questioned by police when there appeared to be no immediate reason for this to occur (p. 23).

Summary

Prisoners face a range of criminal justice issues. As well as the offences for which they were incarcerated and any outstanding matters, prisoners may be eligible to apply for bail or appeal their conviction or sentence. They are also subject to a new range of offences relating to their behaviour in prison and may have to adhere to conditions upon their release. For each of these different types of issues an inmate may require legal assistance. Indeed, inmates may require help with criminal law problems at any point in their incarceration, even though the most salient issues (bail and their principal offence(s)) occur during their period on remand.

Civil issues

Given inmates' acute need for criminal legal assistance, it can be easy to overlook the outstanding civil and family law issues that they may also have. Our investigations suggest that inmates often have civil law issues, arising in a number of ways: firstly, inmates may come to prison with outstanding civil legal issues arising from pre-existing lifestyles, or heavy financial burdens and other disadvantages. Second, they are likely to experience legal issues arising from the interruption that incarceration has on their lives, impacting on their employment and business affairs, housing and personal property and social security. Finally, the experience of being incarcerated can lead to other issues such as civil law claims for injury in prison, media related legal issues such as defamation and immigration issues. The effect of incarceration can also lead to problems once prisoners leave prison, such as discrimination in employment.

Business and employment

The interruption to a person's life that results from their incarceration can be extremely abrupt and relatively absolute. This presents very significant challenges to inmates who had been operating businesses or had responsibilities to an employer. Particularly if someone is remanded in custody, there can be little or no opportunity to close the business, 'tie up loose ends' or complete projects.

Fifteen of the current or past inmates interviewed for this project reported that they had paid work before they were arrested, including a small number who had their own business. Apart from any condition imposed by a court and a general prohibition on inmates profiting from their crimes, there is no statutory exclusion barring prison inmates from conducting business from prison. Equally there is no statutory right allowing inmates to conduct business from prison (personal communication: DCS Policy Officer, 13/02/07).25 However, whatever the rules on this issue, the ability to conduct business is also obviously severely hampered by inmates' physical location in the prison and their limited capacity to communicate with the outside world (e.g. through telephone or internet or email access). The inmates that we spoke to who had businesses, reported relying on less experienced business partners or family members to continue trading. Others reported that their businesses had simply collapsed:

— Justin, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

Most of the inmates, who were employed prior to incarceration, said that they lost their jobs when they came into prison. In some circumstances, family members had been able to inform the prisoners' employers about what had happened, however, a few inmates reported that their employers had not been told that they were in prison.

Aside from the obvious impact jail has on a person's ability to participate in the workforce, interviews suggested that being in prison also has an impact on the ability of an ex-prisoner to secure employment once they leave. More specifically, prisoners may be subjected to both lawful and unlawful discrimination when they leave prison on the grounds of their criminal record. Discrimination on the basis of a criminal record is unlawful under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as the Human Rights and Equal Opportunity Commission Regulations 1989(Cth) extended the definition of discrimination in the Act to include criminal record (reg. 4(a)(iii)). However, there is an exception allowing discrimination in employment on the basis of a criminal record where it is an inherent requirement that an employee does not have a criminal record (HREOC, 2005, p. 13). For example, there are some occupations that people with certain criminal records are specifically prohibited from doing, such as lawyers, doctors and people working with children (HREOC, 2004, p. 7).

Several ex-prisoners reported being discriminated against in employment (either lawfully or unlawfully) after declaring they had been in prison.26 This is a particular problem for ex-prisoners living in small towns where they are well known locally:

— Gareth, male ex-prisoner, 25–34 years, non-Aboriginal, rural prison

Discrimination on the basis of inmates' prior criminal record and incarceration is also discussed in relevant literature. Metcalf, Anderson and Rolfe (2001) identify employer discrimination as one of the major causes of unemployment among ex-prisoners in the UK (p. 3) (see also Webster et al., 2001, pp. 8–9). In Australia HREOC (2005) has reported that 'in recent years there has been a significant number of complaints to the commission from people alleging discrimination in employment on the basis of criminal record' (p. 7). Following these complaints, HREOC released guidelines for the prevention of discrimination in employment on the basis of criminal record (HREOC, 2005).

Housing

— Custodial officer, urban prison

Previous research has suggested that the major housing-related legal issues affecting prisoners include the loss of DOH properties while they are in prison; being cut off from public housing waiting lists while in prison; or being unable to apply for public housing while they are in prison because of the uncertainty of their release date (Ogilvie, 2001). Similiarly, interviewees in this study indicated that housing was a major problem for inmates, both when they were imprisoned and when they were released. For many, the problems reported related to public housing, which is not surprising given that 20 of the 67 inmates and ex-prisoners interviewed for this study reported having lived in public housing before they were arrested.

Public housing

According to DOH policy, if a DOH tenant is incarcerated, they can retain their leasehold for up to three months by paying $5 per week (NSW DOH, 2007a). After this period they are obliged to relinquish the property. Under the DOH's 'Absence from dwelling policy' (EST0039A), tenants need approval from the department if they are going to be absent from their dwelling for more than six weeks, but they are not allowed to sublet the premises in their absence (NSW DOH, 2007b). Whilst they are required to report their absence from the dwelling, in some cases, inmates may not be unaware of their obligation to do so:

— Homelessness worker, urban area

In other cases, according to both inmate and stakeholder interviewees, inmates did not inform DOH that they were in jail for fear of losing public housing they had waited a very long time to attain. Indeed, rather than informing DOH of their circumstances, a number of inmates reportedly allowed relatives or friends to live in the property in order to maintain possession. As well as putting them in breach of their lease agreements, difficulties arose when the interim occupants damaged the property or failed to pay rent, leaving the tenant in prison liable for the resulting expenses.
— Throughcare officer, rural prison

Our interviews also suggested that some inmates had themselves accrued damage-related debt and rent arrears with the DOH prior to being imprisoned. Irrespective of whether the damage is incurred by the inmate or someone they have arranged to stay in their house, the resulting acquisition of a debt to the DOH can make it difficult for the inmate to regain public housing once they leave prison. Consequently, some released prisoners found themselves essentially 'blacklisted' from DOH housing:
— Probation and parole unit leader, rural area

The impact of not being able to secure housing has a double impact, as without suitable accommodation, inmates may then find it difficult to obtain parole.

Privately rented housing

Problems were also reported by interviewees who had been in private rental accommodation prior to going to jail. Firstly their incarceration may have been unexpected, leaving them little scope to notify their landlord prior to going into custody. Further, without assistance, it can be difficult to make arrangements to vacate premises once in prison. As one interviewee stated:

— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

One factor that complicates the issue of when to notify a private landlord is that the inmate may not know how long they will be in prison. In this study, there were examples of inmates not telling their landlord they were in prison because they did not believe that they would get a custodial sentence, or that they would only get a short sentence:
— DCS welfare officer, urban prison

In jail, private tenants may accrue debts for unpaid rent (or other damages), resulting in their placement on tenancy default databases or 'blacklists'. Again, inmates' future ability to regain private rental accommodation upon release may be compromised:
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

One inmate described the disadvantage inmates may face when seeking redress from a landlord for an issue which occurred prior to jail. He was seeking compensation for water damage to his personal property from a faulty fire sprinkler in a rented premise. However, he felt that he did not receive the compensation due to him because the landlord discovered and used the fact that he, the claimant, was in prison.
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Personal property

Property remaining outside of jail

Another area of legal need that seemed to arise in the early stages of people's incarceration was around personal property, which is left outside of jail. As noted above, incarceration is not always expected. Consequently, prisoners may not have made arrangements regarding their personal property and valuables:

— SAAP worker, urban area

Assistance with retrieving and storing belongings can be obtained through family and friends, prison chaplains and Prisoners' Aid Association (PAA),27 although the latter can recover and store only small amounts of personal belongings from DOH property. If an inmate leaves personal belongings in their DOH property, DOH will place any valuable belongings into storage for 30 days. After this period, DOH can sell these goods at public auction. Any proceeds from the sale of the goods will be used to pay for the cost of removing and storing these goods. Any remaining money will be credited to the tenant's rental account (NSW DOH, 2006).

The placement and care of pets is another issue faced by some people going into custody. This escalated into a legal issue for one inmate, when an animal welfare organisation took possession of his pet. Because the organisation could not dispose of the animal without his consent, they had to house it. The inmate was then liable for the cost of care for the animal.

— DCS welfare officer, urban prison

Personal documentation

Inmates need identification and other documentation upon release to access housing and Medicare, to secure social security benefits and other entitlements, to open bank accounts and to generally re-establish life after custody (Borzycki, 2005, p. 35).

However, consistent with earlier research (Galtos & Golledge, 2006, p. 21; Baldry et al., 2003; Borzycki & Baldry, 2003; and Ogilvie, 2001, p. 3; NSW Legislative Council, 2000) a number of inmates interviewed for this study or known to stakeholders (e.g. parole officers) had lost documents or had no knowledge of their whereabouts:

— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

As will be discussed in Chapter 6, the often transitory and chaotic lifestyles of people who come to prison mean that such problems are not uncommon.

Property taken into custody

An issue also arose concerning what happens to property that inmates have with them when they are arrested or when they are put in a cell. There were some examples in the interviews of such property going missing in police custody.

— Official Visitor, urban prison

Some interviewees reported personal property that they had with them in prison going missing, particularly when they were being transported from one correctional centre to another or when they were released from custody directly from court. The type of property at issue may include a television or walkman, CDs or tapes, an electric jug or sandwich maker, books, toiletries, legal papers and documents and the like, which inmates may keep in their cells:
— Non-custodial staff manager, rural prison

PAA informed us that if the property has been formally recorded, inmates could make a claim for compensation for the property lost. However, in some cases it can be difficult to trace and retrieve property that has gone missing (particularly when property has not been not recorded):
— Prisoners' Aid Association

Social security

On entry into prison

In 2003 Homersham and Grasevski reported that over 50 per cent of customers incurred a Centrelink28 debt on entry into custody (2003, p. 1). However the introduction of a Centrelink/DCS Program Protocol Agreement in November 2003 has resulted in reductions of debt incurred by prisoners (NSW DCS, 2006e). Under this agreement, DCS reception officers notify Centrelink when an inmate is received into prison custody, so that any social security payments being received by that inmate can be suspended. Indeed, the majority of inmates and ex-prisoners interviewed for this study reported having no social security debt because of this process. However, one homelessness worker interviewed for this study was of the opinion that inmates could slip through this notification system:

— Homelessness worker, urban area

Forty-one inmates and ex-prisoners interviewed for this study reported that they had been receiving Centrelink payments either before they entered prison or since they had left. Centrelink recipients are supposed to inform Centrelink if there is a change in circumstances, including when they are incarcerated (Welfare Rights Centre, 2007, ch. 6, s. 2). However, a small number of inmates interviewed for this study said that when they came into prison, they had been overpaid benefits because they had not informed Centrelink.

Some inmates admitted they had deliberately omitted informing Centrelink of their incarceration so that they had money to buy items such as televisions or other personal items for their stay in prison:

— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Needless to say, inmates accruing Centrelink debt have to pay it back once they leave prison. One legal service provider suggested that people on the Disability Support Pension (DSP) seemed to be particularly vulnerable to overpayment when they go into prison because they do not have as many obligations associated with their pension that they could breach when they go to jail. This is significant because payments are usually stopped when a person breaches their conditions, reducing the level of debt that may accumulate. For example, a person on a Newstart payment may be required to enter into an 'Activity Agreement' with Centrelink and look for work or undertake other activities (Welfare Rights, 2007, ch. 17, s. 5). Because imprisonment will mean they cannot meet such an obligation, there is a greater likelihood that Centrelink will quickly discover the person is in prison. As stakeholders commented:
— Caseworkers, Welfare Rights Centre

On release from prison

In their 2003 study Homersham and Grasevski also identified prisoners being released out of Centrelink business hours and their lack of identification as barriers to their obtaining and staying on social security benefits (p. 1). However, under the Program Protocol agreement mentioned above, Centrelink now provides an outreach service, in a number of (mainly urban) jails, to prisoners about to exit prison (NSW DCS, 2006e). This service, the Centrelink Prison Servicing Unit, organises their first payment when they leave, determines what types of benefits are appropriate once they are out, and assists prisoners to manage and repay any debts to Centrelink, (Barry, 2004, p. 913). Arrangements are also made for inmates to receive their first payment at the jail on release, so they do not need to go to the Centrelink office that day. Prisoners who are eligible for other Centrelink benefits, who have been incarcerated for more than 14 days and who are in severe financial hardship are also eligible to apply for a one-off crisis payment from Centrelink (NSW DCS, 2006c, s. 7.14). Centrelink outreach workers also arrange for inmates to receive this on release.

In our study a stakeholder suggested that recent national changes in social security eligibility could have consequences for people moving through the corrections system. For example, those people who had been receiving the DSP or a parenting payment prior to incarceration may be required to move upon release to Newstart, which involves more onerous obligations. In addition, in reapplying for a DSP, a person must re-establish their eligibility, which might be difficult if they have been in prison and do not have the medical evidence to prove that they have a disability.

— Probation and parole unit leader, rural area

Centrelink does provide ex-prisoners a two-week grace period in which they can prove their eligibility for these payments and not have to adhere to the Newstart work requirements (Manager, Centrelink). However concern was raised that even ex-prisoners eligible for Newstart would have problems adhering to the obligations when they were first released:
— Caseworkers, Welfare Rights Centre

Debt

Virtually all prisoners interviewed for this study indicated that they were in debt. Some debts pre-dated their incarceration while other debts were accumulated (and were still accumulating) during their jail time. As well as debts owed to the DOH and Centrelink, prisoners reported owing debts to wide a variety of other creditors:

— DCS policy officer, head office
— Karla, female remandee, minimum security, 25–34 years, NESB, urban prison

There were also inmates who reported owing money to the Child Support Agency (CSA) as a result of unpaid child support.
— Rex, male ex-prisoner, 35+ years, non-Aboriginal, urban area

On a more informal level, many inmates also owed money to family, friends and drug dealers:
— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

These observations are consistent with earlier literature, which identified the high level of debt amongst prisoners. In 1999 the Queensland PLS undertook research on the extent of indebtedness in the prison population and its effects on the families of prisoners and the wider community (Stringer, 1999). Prisoners sampled for the study had a range of debts relating to cars, furniture, houses, as well as for legal fees, debts to government (e.g. housing and Centrelink) and drug related debts (Stringer, 1999, p. 1). The authors reported that 49 per cent of the respondents to the prisoner questionnaire indicated that they had committed an offence to repay a debt (p. 10). Baldry et al. (2003) found that 51 per cent of the ex-prisoners she interviewed had a debt of some sort. Debt, among other factors was associated with being more likely to return to prison (Baldry et al., 2003, p. 14).

As well as these more general debts there are two other common sources of debt for prisoners and those recently released from jail. These are the requirement for some prisoners to pay victims compensation restitution, and fines (including court costs).

Victims compensation

Under the Victims Support and Rehabilitation Act1996 (NSW), victims of violent offences can be awarded compensation of between $7 500 and $50 000. While the award is paid out of the Victims Compensation Fund, funded by the NSW Treasury, an inmate convicted of the offence which caused the injury, is liable to repay the Fund for all or some of the compensation paid to their victim (Victims Services NSW, 2007a). In a review of post-release services for Australian prisoners, Borzycki (2005) noted that 'prisoners can exit custody with already accumulated debt, and because they are unable to access emergency support or secure a source of income, may be unable to pay any justice system mandated restitution' (i.e. victims compensation restitution) (p. 35). In our study this was identified as another significant source of debt for some inmates:

— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Inmates may not receive their notice to pay this money or even be aware that this debt exists, until they are released from jail:
— Probation and parole officer, urban area

This debt can be a considerable additional burden to prisoners who are trying to re-establish life after custody.

Victims compensation restitution is over and above the State Victims Compensation Levy, which all offenders who are convicted of an offence that is punishable by imprisonment are liable to pay (Victims Services, 2007b). The DCS Operations Procedures Manual indicates that the levy is $30 for a minor offence and $70 for a major offence (NSW DCS, 2006c). Many of our interviewees reported that the levy was taken out of their jail wages on a weekly basis, although they were not aware prior to going to jail that they would have to pay this levy:

— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Fines

No home, no justice?, a study by the Foundation on the legal needs of homeless people, identified fine-related debt as a significant issue for people who are homeless. Given the documented associations between recently released prisoners and homelessness (Baldry et al., 2003; Forell et al., 2005, pp. 105–108), it might be expected that that fine-related debt is also an issue for this population. The findings from this study suggest that this is indeed the case. The vast majority of inmates and ex-prisoners in the current sample had received fines. Sources of these fines included traffic and transport fines, as well as court-imposed fines from current and past offences.

— Kylie, female ex-prisoner, 25–34 years, non-Aboriginal, urban area

While one inmate estimated his fine debt was in the order of $49 000 [Matthew, male parolee, 25–34 years, non-Aboriginal, rural area], other inmates commonly reported SDRO debts of between $175 and $15 000. Inmates and stakeholders for this study reported that many of their debts remained unpaid whilst they were in prison and that as a result, prisoners continue to face this debt when they left prison. These fine debts can be considerable, in light of modest incomes:
— SAAP worker, urban area

When the Fines Act 1996 (NSW) came into operation, prisoners were no longer able to 'cut-out' their fines while serving time for other offences. 'Cutting out' fines involved reducing the fine liability by say, $100, for each day in custody. Without this option, prisoners often leave jail still owing considerable amounts of money for unpaid fines.

Further, failure to pay fines may lead to cancellation of a person's driver's license. Briefly, when outstanding fines remain unpaid, the SDRO instructs the RTA to suspend or cancel a person's driver's license until they pay the outstanding debt. This can add to the challenge of gaining employment and generally re-establishing life after custody (Galtos & Golledge, 2006, p. 21). Many inmates in this study reported that their licenses had been cancelled as a result of outstanding fines, for example:

— Dan, male sentenced prisoner, 35+ years, Aboriginal, rural prison

It was also suggested in our interviews that some inmates were not aware that their licence had been cancelled whilst they were in prison. This consequently places inmates at risk of re-offending and/or breaching their parole if they drive a vehicle unlicensed after they are released from prison.
— Jack, male remandee, medium security, age unknown, non-Aboriginal, urban prison

Many inmates were also not aware that they could have their license reinstated if they entered into a repayment plan with the SDRO.

Injury and illness in prison

Once an inmate has been received into prison, they come under the custodianship of DCS. As such, DCS owes a duty of care to prevent injury to inmates and staff arising, amongst other things, from self-harm, injury and industrial accidents (NSW DCS, 2006c, s. 8.26). Several DCS workers interviewed for this study acknowledged their duty of care obligations to inmates and gave examples such as placing inmates who were at risk of suicide under observation; placing into segregation inmates who had been at risk of harming other inmates; and, placing on protection inmates who had been under threat from other inmates. In the words of one welfare officer:

— DCS welfare officer, urban prison

However, a small number of examples were given where interviewees felt that DCS's duty of care obligations had been neglected. The issues related mainly to employment, health and assault from other inmates. For example, in relation to the provision of health care services in prison, many commented on the long delays in accessing a doctor, dentist or optometrist or having medical procedures whilst they were in prison:29
— Jane, female remandee, minimum security, 35+ years, non-Aboriginal, urban prison

One solicitor interviewed for this study provided an example of an inmate who had suffered from significant hearing loss as the result of a delay in seeing a specialist. This particular inmate did not see a specialist until after she had complained of ear infections on numerous occasions:
— Legal Aid solicitor

A Legal Aid solicitor cited an example of an inmate who had incurred an injury whilst carrying out duties as part of their prison employment. The inmate had reportedly suffered from significant ongoing pain and, as a result, had sought legal advice from the solicitor about bringing action against DCS. The solicitor's assessment was that the case had merit.

Injury arising from assault

According to our interviewees assaults amongst inmates are commonplace (see also Chapter 9). Interviewees indicated that prison officers would respond to these assaults by taking inmates to receive medical treatment and by offering them the opportunity to have their attackers charged. However, a few inmates suggested that the incidence of assaults often arose because custodial officers had failed to adequately protect inmates from being assaulted or attacked by other inmates. One inmate specifically referred to an incident where he had been attacked in a prison yard, but claimed the surveillance camera that normally kept watch over this area was not facing the yard at the time of the incident (Dean, male sentenced prisoner on protection, 35+ years, Aboriginal, rural prison).

Different sources of information about assault, injury and violence in prisons provide vastly different pictures of this issue. The Productivity Commission provides annual statistics on the incidence of reported assaults in Australian prisons. The reported rate of prisoner on prisoner assaults in NSW prisons in 2005–06 was 15 per cent of prisoners with a further 0.4 per cent for 'serious assault' (SCRGSP, 2007, Table 7A.14). However, while these statistics are provided each year, and are used as an official measure of prison safety, the reliability of these figures is uncertain, due to the likely underreporting of assault in prison (see Chapter 9 and Butler & Allnut, 2003).

Another indicator of the level of assault in prison is the IHS. This survey reported that twenty-eight (19%) women and 123 (18%) men had sustained at least one injury in the three months prior to the survey. The most common cause of injury for both sexes was being struck by an object or person (32% (women) and 42% (men) of all causes). Twenty-eight (90%) injuries reported by women and 125 (80%) reported by men had occurred in prison. Hospitalisation was required by three (10%) women and seven (4%) men (Butler & Milner, 2003, p. 68). Assaults are the second most common form of injury treated in NSW prison clinics (Schofield et al., 2006, p. 499).

A more recent survey of prisoner drug use and associated violence indicated that 21.4 per cent of inmates reported being assaulted by an inmate and nine per cent by a prison officer during their current prison term (down from 35.6% and 11.5% respectively in 1998). Most inmates reported having witnessed a fight (84.2%) during their current prison term and 36.8 per cent had witnessed more than five fights (Kevin, 2005, pp. 20–21).

In terms of sexual assault, 23 per cent of females and 15 per cent of males interviewed in the IHS reported that they were 'aware of sexual assaults in prison in the past twelve months'. However, as the question was deliberately asked so as not to relate to their own personal experiences, it is possible that a number of inmates' responses may be describing the same incidents (Butler & Milner, 2003, p. 134) and therefore these statistics may be subject to (at least) double counting. The Framework Report, which examined the needs of intellectually disabled offenders (Simpson et al., 2001) described threatened and actual physical and sexual violence as one of the main issues of concern to prisoners with intellectual disabilities. In an earlier survey of NSW prisoners aged 18–25, Heilpern (1998) identified a high incidence of sexual (and other) forms of abuse, especially amongst male respondents in NSW prisons.

Media

Three inmates in this study reported being concerned about the way in which their offence had been depicted by the media. One solicitor interviewed for this study provided an example of an inmate who had committed a highly publicised crime. She said that negative news articles had been published in the media about this inmate, who was concerned about the impact of the publication on her family outside prison:

— Legal Aid solicitor

One of the issues raised by this solicitor's client was that the publication of details relating to her case impacted negatively on her interactions with other inmates. The law of defamation regulates the publication of material that can potentially damage a person's reputation. However, in NSW defamatory material can be published if it is true, particularly if this has been proved in court (Barry, 2004, p. 866). Accordingly, it appears that inmates with such issues would have difficulties pursuing this issue under defamation laws or preventing the publication of such stories in the media. As this solicitor stated:
— Legal Aid solicitor

Two other inmates from this study who had been arrested at the airport, expressed concern that their arrest had been televised on a reality television show:
— Carlos, male sentenced prisoner on protection, 35+ years, NESB, rural prison

'Open justice' is the notion that the public be informed of legal issues arising in the criminal and civil courts, which allows the media to observe the majority of court proceedings (Barry, 2004). However if a publication in the media is found to interfere with the course of justice, it is held to be 'contempt of court', which is a punishable offence. Hence it is possible that the issue facing these two inmates is covered by sub judice rules in NSW, rules which prohibit the publication of material that could prejudice the outcome of a matter before the courts. This includes material that reveals photographs or drawings of the accused, evidence not shown before the court, confessions, or prior convictions or charges (Barry, 2004, p. 871).

Material that can be published includes the 'bare facts' of the case as well as a 'fair, accurate and contemporaneous' report of the court proceedings (Barry, 2004, p. 872). A case is affected by these rules once a person is arrested until their appeal rights are exhausted (Barry 2004, p. 871). However, the bare facts, the name of the person charged and what they have been charged with are not prohibited (Barry, 2004, p. 872). An analysis of whether these rules affected the above two interviewee's cases, should take into account whether the show went beyond the facts and whether a physical depiction (photographs, pictures or video footage) occurred before the offender's appeal rights were exhausted.

Immigration

Non-Australian citizens (including permanent residents) imprisoned in NSW may face the prospect of being deported upon release. Indeed, the Immigration Advice and Rights Centre (IARC, 2006) identified prisoners in five situations who are most commonly affected by the risk of deportation. These are:


IARC (2006) advises that 'as a general rule, if the prisoner has committed an offence within ten years of being in Australia as a permanent resident, and is sentenced to a period of imprisonment of at least twelve months, the prisoner may be deported' (p. 3).

Several inmates that we interviewed, who were not Australian citizens, had been served a deportation notice by DIAC. Others had not received such formal notification but had concerns they would suffer a similar fate. Those inmates who had been living in Australia for many years or who had children and family here were particularly anxious about the prospect of being deported:

— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area

Stakeholders also provided examples where inmates had been deported once their sentence had finished, despite having lived here for the majority of their life and having children or other family here.
— Official Visitor, urban prison

It has been suggested that a recent decision regarding the cancellation of an offender's permanent visa in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 (20 December 2006), may impact on future decisions made by the DIAC regarding such visa cancellations. This case involved a permanent visa holder imprisoned in Australia having his visa cancelled despite having lived in Australia since he was three years old. In the decision, Allsop J held that the visa holder had been denied procedural fairness in relation to the cancellation of the visa because of his inability to get legal advice about the cancellation of the visa from prison. This decision has led the Department to revoke the cancellation of a number of permanent visas held by offenders (Irish, 2007, p. 5).

There were also cases in this study where the inmate actually wanted to be returned to their country of origin. Once sentenced, arrangements can also be made for sentenced inmates, who are nationals of countries with whom Australia has a prisoner transfer agreement, to be transferred to their country of origin to serve the remainder of their sentence (Cth AGD, 2006). One inmate who was currently on remand at the time of the interview discussed her wish to be transferred back to her country of origin after she had been sentenced:

— Karla, female remandee, minimum security, 25–34 years, NESB, urban prison

Summary

As described above, prison inmates commonly face a range of civil law issues. Not only may inmates go to prison with outstanding debts, housing and social security issues, but their often sudden and relatively comprehensive removal from society, itself raises a raft of potential legal problems. Inmates have difficulties settling and/or meeting existing obligations, such as business or employment arrangements, debts and tenancies. In addition to the very practical barriers to settling their affairs, they may not know for how long they will be in prison, making pre-emptive action difficult, lest they be released. Finally, the experience of being incarcerated can lead to further civil law issues, claims for injury in prison, media-related legal issues such as defamation, the requirement to pay victims compensation restitution and immigration issues. The effect of incarceration can also lead to problems once prisoners leave prison such as discrimination in employment.

Family issues

As indicated in Chapter 2, while 59.2 per cent of inmates have never married (Corben, 2006a, p. 20), 47 per cent of male inmates and 57 per cent of female inmates completing the IHS reported having one or more children under the age of 16 (Butler & Milner, 2003, p. 28). DCS has recently begun registering the numbers of child visitors to correctional centres and their relationship to the prisoner they are visiting. Since January 2004, over 25 000 children were registered as visitors to NSW correctional centres, with 47 per cent of these child visitors aged under ten years and 65 per cent visiting a parent in custody (NSW DCS, 2005a, p. 24). These data highlight the number of children affected by having parents and other close relatives in custody. The sheer number of inmates who have partners and or children would suggest that there is potential for inmates (in the same or greater proportions to families outside the correctional system) to experience, while they are in custody, family law or care and protection issues relating to children. Similarly, the level of domestic violence experienced by prisoners, particularly women prisoners (see Chapter 2) would suggest this as another area of legal need.

Family law

Several inmates interviewed for our study reported having family law problems. Two inmates in our sample who were currently in prison reported going through divorces. However, overwhelmingly, family law problems related to access and residency of children. These appeared to occur whilst inmates were currently incarcerated as well as occurring after being released from prison. Approximately two-thirds of inmates and ex-prisoners interviewed for this study reported having children, although many did not have those children in their care at the time of arrest. Most male inmates with children (where those children were housed with family) said that the children were with the mother, while female inmates tended to have their children staying with extended family, often parents. In cases where children were placed with family, most inmates said they were satisfied with those arrangements in the circumstances:

— Pedro, male sentenced inmate, minimum security, 35+ years, NESB, urban prison

Arrangements for the care of children may predate imprisonment or may have been, as noted earlier, entered into once one parent had been taken into custody. A few stakeholders reported instances of inmates having existing family law matters when they were arrested which they continued to negotiate once they were remanded in prison:
— Legal Aid solicitor

A number of interviewees also stated that inmates sometimes had difficulties accessing their children (by letter, telephone or by the children visiting the jail), as well as difficulties with access once they were released (see 'Accommodation post-release'):
—Probation and parole unit leader, rural area
— CEO, Shine For Kids

Other examples were provided of partners outside moving house with the children and the incarcerated parent leaving prison, not knowing where their children were:
— Manager, Centrelink

There were also instances of where an inmate had previously had custody of their children, but had lost custody when they were arrested and imprisoned. For example:
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison

In a Canadian legal needs study, family law matters were identified by 70 per cent of prisoner interviewees as a critical area of legal need (Lajeunesse, 2002, p. 2). There is also an increasing amount of Australian research on the issues facing inmates and their families (see Flat Out & VACRO, 2006; Woodward, 2003; Lawrie, 2002; Brookes, 2000).

Substitute care for children

Care for children through DOCS was another legal issue encountered by inmates interviewed for this study, particularly when people, often women, are first incarcerated:

— Non-custodial staff member, Offender Services and Programs

Of inmate interviewees who had children, a small number reported that DOCS was involved in trying to place children with family members or into DOCS care itself when they came into prison:
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

Once sentenced, inmates with families may continue to experience problems related to children in the care of DOCS. For example, inmates, DCS workers and other service providers reported that parents in prison who have children in DOCS care may have difficulties both negotiating access arrangements and in actually gaining access to the children:
— DCS client services officer, head office

Examples were given in our interviews of prisoners wishing to report matters to DOCS in situations, where he or she had concerns over the welfare of children in the care of partners or family members on the outside:
— Throughcare officer, rural prison

In circumstances when DOCS is removing a prisoners' children from an ex-partner who has custodial rights, DOCS must inform the inmate of the situation. There was a suggestion, however, that under these circumstances, the incarcerated parent has little involvement in the process:
— DCS welfare officer, urban prison

Research undertaken concerning the children of imprisoned parents by the Children of Prisoners Support Group (now Shine for Kids), touched in part on the capacity of parents who have children in substitute care to participate in legal processes related to care proceedings (Brookes, 2000). The survey of 200 imprisoned parents reported that 16 respondents had children in substitute care (i.e. foster care, children's homes, etc.). In half of these cases, the children were moved into care after the parent went to prison (Brookes, 2000, p. 17). Most of these children were made Wards of State or were committed to the care of a 'private person' (p. 18).

It is noteworthy, that the parents whose children had been taken into care since going into custody, appeared to have more involvement in the legal proceedings concerning their children's care than the parents whose children had been in care before they went into custody. The survey found that the former group were more likely to know that their children had been before the court (for care proceedings), had been present at the court hearing and had a lawyer at the court hearing (Brookes, 2000, p. 18).

Custody issues and housing

From our interviews, it also appeared that inmates had difficulties regaining custody of or contact with their children once they had been released. Our interviewees indicated that contributing to these difficulties were issues such as inmates not being able to find suitable accommodation and the children having been removed from their parents for long periods:

— Project workers, ex-prisoner mentoring program

Baldry et al. (2003) examined whether the availability of post release housing made any difference to recidivism levels and the chance of inmates returning to prison. They identified sole parents (usually women) as being particularly disadvantaged in securing housing for themselves and their children (p. 25). Ogilvie (2001) also described released women's vulnerability to returning to violent partners in order to house themselves and their children (p. 4). One social worker interviewed for this study reported that housing debts could also prevent ex-prisoners from being rehoused and regaining custody of their children:
— SAAP worker, urban area

Summary

Accordingly, whilst some data indicates that more than half of the inmates in jail have never been married, many inmates do have children. As well as pre-existing legal issues arising between partners and concerning the care of children, our data suggests that the incarceration of a parent or partner may itself precipitate family law and child custody issues. As well as the acute child custody issues that may arise upon a prisoner's arrest, inmates may need assistance with family related issues throughout their custody and upon release. Post-release child custody issues may also be affected by housing difficulties.

Conclusion

Interviewees in our study suggested that although inmates come into prison with pre-existing civil law issues (e.g. debt, fines and housing), family matters and, of course, their criminal legal needs, there is also a range of legal issues experienced by inmates and ex-prisoners that arise from imprisonment. The interruption to a person's life brought about by sudden incarceration affects inmates' housing, child care arrangements, personal effects, employment, financial obligations and social security payments.

Certain legal issues may also arise as a direct outcome of imprisonment such as prison disciplinary action, deportation or discrimination. Once released, ex-prisoners report problems with parole, policing, warrants and discrimination, as well as those problems that remain from before or during their incarceration. It appears that the confluence of legal problems on release from jail may affect inmates' capacity to successfully reintegrate into the community.

These findings suggest that inmates not only need access to criminal law assistance while in prison, but also to assistance with a broad range of civil and family law matters. Indeed the provision of legal assistance in jail may have benefits well beyond an inmate's term in prison. So what are the opportunities and mechanisms available to inmates whilst in prison? Given the very literal barriers and restrictions imprisonment imposes on inmates, how do inmates address existing legal problems and prevent other significant problems from occurring? Chapter 5 will describe the opportunities for inmates to get legal assistance and to participate in relevant legal processes — criminal, civil and family. It will also summarise some of the immediate barriers encountered by our interviewees in using these mechanisms.



Ch 5. Opportunities and Barriers to Access Justice


The previous chapter has demonstrated that inmates have a considerable number of legal problems that require attention whilst in prison including but by no means restricted to, a serious criminal problem. Many of these legal issues require immediate attention lest they compound or generate new legal issues. Accordingly, access to legal assistance is an important concern for prisoners and critical to limiting the volume and severity of the legal issues inmates may face. Throughout our interviews with both stakeholders and inmates (current and past), it emerged that there were opportunities for inmates to access legal information, advice and representation and to participate in legal processes despite the challenge of the prison environment. This chapter will provide an overview of the common means by which prisoners can access legal information, advice and legal processes and the steps they need to take to achieve this access.

As already discussed in the introduction to this report, the ability to access justice among prisoners as it is being examined by this report not only includes 'end product' events such as an advice session, a court appearance, or obtaining a piece of legal information, but also the steps in the process leading to those 'end products', such as being able to obtain the requisite form, making an appointment, getting access to a library, or just getting some assistance to know what will be the next step in a process. Indeed, it appears many of the difficulties inmates have in servicing their legal needs occur within these intermediary steps.

The purpose of this chapter is to summarise the barriers encountered by prisoners in the context of the steps they need to take from prison in order to access legal information, advice, and representation and to participate in legal processes.. This will then form the background to the subsequent four chapters, which describe in detail the circumstances that generate, maintain or ameliorate the problems inmates have with addressing their legal needs, supported by quotes from our interviewees.

Legal information

In this report, 'legal information'31 refers to the information found in legal text books, case law and legislation. It also covers plain language legal information32 including material produced by DCS where it contains some legal information (e.g. the Inmate Handbook contains contact details for Legal Aid NSW and the ALS) and brochures/ cards/posters produced by legal services for distribution. Information may be about specific laws, legal problems or legal processes, or about where to get legal advice or representation for criminal, civil and family law matters. Accordingly, legal information in this context refers to specially produced legal information materials not given verbally. Information given by non-legally trained people are considered intermediary steps to legal advice and information and as such are discussed as they arise, but is not considered in this context as legal information.

Legal information in prison

Among the inmates and ex-inmates interviewed for this study, legal information was sought for a range of reasons: in order to progress a legal matter such as a bail application or an appeal; or, to participate in the running of their criminal matter by drawing on materials such as specific legislation and case law. Inmates also sought legal information to gauge what to expect at a sentencing, to judge the fairness of their sentence, or to gauge the perceived competence of their lawyer. Further, although the topics mentioned by interviewees revolved predominantly around criminal matters, inmates also sought legal information on family matters (child custody and divorce), immigration and financial issues. It would appear from our interviews that the legal information sought not only helped inmates to understand their legal position but also afforded an autonomous perspective on the legal processes of which they were the subject. In this way, legal information provided an opportunity for inmates to more fully participate in legal processes as well as a means by which (in their view) they could assess the fairness of those processes.

Despite their real and sometimes urgent legal needs, people in prison are much more limited in how and where they can obtain legal information because they cannot actively seek it in the same way someone not in prison can (see Figure 1, p.32). Specifically, their range of choice of sources of information is narrower (for example, inmates cannot go to a public library or access the internet) and the opportunities to consult those sources they can access may be subject to strictures generated by other prison functions.

According to the inmates interviewed for this study, the major sources of written legal information for prisoners were the prison library, their legal advisers and DCS staff (for DCS-produced materials and written materials produced by legal service agencies such as brochures and posters). According to our interviewees, the success with which those sources yielded the required information varied. Issues associated with obtaining information from legal advisers are covered under 'Legal advice and representation' in the current chapter and from DCS staff under 'Professional intermediaries' in Chapter 8. However, it should be noted that the issues raised in those sections could also be applied to obtaining legal information.

All NSW correctional centres have at least one library (which can vary in size from a cupboard of books to a fully functional library), which may contain some legal information as well as recreational and other reading material. However the main law library is located at the Metropolitan Remand and Reception Centre (MRRC). Inmates not at MRRC may order articles from the law library via the loans service. They must complete a written request form detailing the information needed and then submit the form by fax to the MRRC law library. The librarian gathers the relevant material and sends it to the prisoner. In terms of holdings, all libraries are required to at least have copies of the DCS Operations Procedures Manual, an up-to-date copy of the Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation; up-to-date copies of 'any other relevant legislation';33 and approved journals and reference books (NSW DCS, 2006c, s. 5.6). It should be noted that since our interviews DCS has funded plain language legal resources from the State Library's Legal Information Access Centre (LIAC) have been placed in all NSW jails. These are described in more detail in Chapter 7.

All inmates, including those on segregation, protection limited association, protection non-association and on special management area placement are supposed to be informed about the library services, and have the library or library services made available to them (NSW DCS, 2006c, s. 5.6). There is no access to the internet in any DCS correctional centre.

Problems/barriers to obtaining legal information in prison

Although a number of interviewees in this study were satisfied with the use they had made of the prison library services, other interviewees noted a number of difficulties in obtaining legal information from this source. These were:


It would appear, consequently, that inmates would like, and can (albeit it with some difficulty), utilise the library facilities that are on site at the prisons as well as the borrowing service provided at the central law library at MRRC. However, there was a suggestion that the material available through these locations may be of limited utility because it may be incomplete or outdated. These comments were supported by a survey about library services conducted by DCS in 2005 to which 97 inmates from nine NSW prisons responded. The concerns in all of these prisons reflected those from the current sample, namely, as already mentioned: out-of-date resources, little information about how to best find materials, no or slow response to requests for information; and, too restricted opening hours (NSW DCS, 2005b).

Legal advice and representation

In this report, legal advice refers to a lawyer acting in their official capacity34 offering or providing a solution to an individual's legal problem. Legal advice can be given face to face, by telephone, AVL or in some cases, by mail. An example of legal advice is when a solicitor tells a client what his or her options are, after he or she has received a letter of demand to pay a debt.

Legal representation covers services provided by legal professionals that go beyond providing legal advice. These services may include drafting documents (e.g. wills and contracts) and representing a person in a legal matter (e.g. negotiating child residency and contact agreements). Legal representation also includes preparing documents for court appearances (e.g. statements of claim and affidavits), and representing people in court and tribunal processes.

As with any person facing court on a criminal charge, prisoners often seek to engage the services of a lawyer. A lawyer may be funded either publicly, for instance partly or fully by Legal Aid or the ALS, or privately, where the cost is borne solely by the individual, their friends or family. The majority of the prisoners and ex-prisoners interviewed for this study had, at some point, used a publicly funded solicitor.

Securing advice and/or representation from a lawyer is clearly not unique to people defending a charge who are also in prison. However, imprisonment means that it is likely that the process of accessing a lawyer and/or interacting with an advocate would differ from that which would occur out of prison. The following paragraphs describe the major means for obtaining legal advice and representation whilst a person is in prison. The information flows from our interviews and is confirmed by the relevant service providers.

Prisoners Legal Service (PLS)

As briefly mentioned earlier in the literature review, the PLS provides, in the main, representation to inmates at Parole Authority hearings, life sentence determinations, segregation appeals and visiting justice hearings. The PLS also coordinates a visiting legal advice clinic to prisons. In urban areas, the service is mainly staffed by PLS solicitors, while in rural areas the clinic uses lawyers from the regional offices of Legal Aid or private solicitors acting for the PLS. PLS solicitors do not represent inmates in court for matters relating to their criminal charge. While run by Legal Aid, the PLS functions as a separate service to the Legal Aid Duty Lawyer Scheme (which operates in most local courts), and to other Legal Aid services.

The PLS represent prisoners at parole board hearings who are either seeking parole or who have had their parole, home detention order or periodic detention order revoked. Prisoners can indicate on a form sent to them by the Parole Board whether they would like PLS, the ALS or a private lawyer to represent them at the hearing.

The PLS also coordinate an advice service to almost all of the prisons in NSW. The frequency with which the PLS is scheduled to hold the legal advice clinics varies from prison to prison, from weekly visits at the major remand centres to monthly visits at most country jails. Inmates book for an advice session with a PLS lawyer by asking their wing officer to put their name in a 'Legal Aid book' at the prison. On the day the legal advice clinic is run the inmate could be paged to the visits area to meet the attending lawyer. Appointments do not take place if the prison is in lockdown. Appointments usually run for approximately ten minutes and are in the form of 'minor assistance' (less than one hour's work). The advice usually concerns inmates' current criminal proceedings, but can also be about other legal problems. If the inmate requests assistance with something beyond the service's scope, the PLS will try and refer them on to another section of Legal Aid or a community legal centre (CLC).

Every inmate at a prison faces or has faced a criminal law issue. Not surprisingly, many of our inmate interviewees sought the assistance of the PLS visiting legal advice service and many of the concerns they and other interviewees raised pertained to this service. The issues raised by interviewees specifically in relation to the PLS visiting legal advice service included:


It is important to note that many inmates did not themselves often make a distinction between the legal advice service provided by PLS, the lawyer they may engage specifically for their case, or the duty lawyer at the court. Perhaps one indicator of this conflation is the fact that the book where the names of inmates seeking advice are noted is commonly called 'the Legal Aid book'. Consequently, it is not clear whether many of the above noted concerns inmates expressed about 'their lawyer' not turning up at prison, or having a different lawyer at court from the one they consulted in prison, or always getting a 'different' lawyer each time they appear, is either a consequence of this confusion or an indication of a genuine disruption to one or more of these services.

Legal representatives: Legal Aid, ALS and private solicitors

After arrest, police may allow inmates a telephone call to contact a lawyer. However, the process for obtaining representation from Legal Aid typically occurs when a person is arrested and they appear in court for their bail hearing. Unless they have secured a private solicitor, a defendant may see the Court Duty Solicitor35 (a service provided by Legal Aid) to represent them at their bail hearing at court. This may involve a short visit by the lawyer to the inmate as he or she is held in the cells at the court. They may also apply, through the Duty Solicitor, for a Legal Aid solicitor to represent them in their criminal matter. Alternatively, an inmate may make this application in the correctional centre through the PLS visiting legal advice service, or by calling Legal Aid themselves (see below 'Contacting legal representatives from prison'). After making an application for Legal Aid, if successful, an inmate will be appointed a Legal Aid solicitor who will contact the inmate by post. Alternatively, an inmate may find his or her own legal representative who may apply for a grant of Legal Aid. It is also possible for an unrepresented inmate to attend court for the hearing for their criminal matter and use the services of the Duty Solicitor at court for that day.

If an Aboriginal or Torres Strait Islander person comes into custody, police must, by law, contact the ALS on their behalf (Manager, Aboriginal Legal Service). The ALS has a dedicated 24-hour telephone custody notification service and once contacted, the ALS lawyer will give legal advice and will ask some basic questions about safety and family contacts (personal communication (email), Policy officer, ALS). At court, there may be an ALS lawyer who, on list days, can provide representation to Aboriginal people. The presence of an ALS solicitor will depend upon the business of the court (e.g., how busy the court is, the number of Aboriginal defendants appearing before that court) and resources. Aboriginal defendants can also approach the Legal Aid duty lawyers for assistance if no ALS lawyer is available. ALS lawyers and field staff36 regularly visit prisons and assist Aboriginal inmates whether they are ALS clients or not.

Inmates may also fund their own solicitor. It appeared that most inmates in our sample who chose to have private representation selected their solicitor through either previous contact with that lawyer, the recommendation from another solicitor they had contact with but who may not have had the expertise they require, recommendations from other inmates or by asking family or friends to find a lawyer. DCS staff may also give inmates access to a telephone book for this purpose, but according to our interviews with DCS staff, they do not give referrals other than to Legal Aid.

Problems/barriers to obtaining adequate legal advice and representation

Interviews for this study raised a number of general issues in relation to obtaining advice and/or representation from lawyers whilst in prison (problems concerning contacting lawyers are covered in the section immediately following):


Contacting legal representatives from prison

The Legal Aid number (amongst others) is automatically programmed into the phone cards inmates use to make all their telephone calls and are free for all inmates.38 There is also the option for inmates to have up to three other lawyers' telephone numbers programmed into their telephone system account. Calls to these other numbers are charged to DCS if the inmate is unconvicted, however convicted inmates must pay for their legal calls. In order to have a lawyer's number entered onto their card, an inmate must submit the contact details for the lawyer to DCS and a DCS officer then calls the lawyer's office to validate the number as genuine and to confirm the lawyer is representing the inmate applying to have the number put on his or her card.

A separate form must be completed to place money onto the telephone account. This process may take a few days or even a couple of weeks and must be repeated should the inmate move to another correctional centre. Women receive 15 minutes for legal calls whereas men have ten minutes. Welfare can also facilitate telephone calls from their office (NSW DCS, 2006c, s. 3.2.11) an option often used by inmates in the interim period before their numbers are programmed into their card.

An inmate is entitled to a visit by their legal practitioner in addition to their personal (family/friends) visits. Most prisons have a separate area with designated 'legal visits rooms' for legal visits and have set hours (generally seven days a week) during which legal visits may occur. The legal practitioner must hold a current practicing certificate and hold a current valid identification card, issued by the governing body of their profession, which must be shown on entry to a prison. Legal practitioners are given priority over non-legal visitors during the week when being processed for visits (NSW DCS, 2006c, s. 15.11). After a lawyer has been processed at the prison gate, the inmate is paged over the intercom or escorted to the legal visits area by an officer. An in-person legal visit may also take place in the holding cells under the court before or after an inmate appears in court.

Lawyers who have access to AVL may also make a request 48 hours ahead to see their client via AVL. Generally, it is Legal Aid lawyers who have access to this facility.

Inmates may also correspond by post with their lawyers. Letters from lawyers are required to be stamped 'legal mail' to maintain legal privilege. All other letters and parcels are opened and inspected when considered necessary. Inmates have to meet the cost of sending their post, including legal mail, although inmates without money may send two letters a week at departmental cost (NSW DCS, 2006c, s. 3.1).

Problems/barriers experienced contacting a lawyer from prison

Difficulties with contacting a legal representative whilst in prison was a common theme in our interviews with stakeholders and inmate interviewees. Many interviewees felt that making contact with legal representatives was problematic, irrespective of the method used. The problems cited by our interviewees in relation to contact with legal representatives were:


Participating in legal processes

In this report, participation in legal processes extends from the time an inmate first engages with the official process of a court, tribunal or government agency, to the point of legal resolution (if there is one). Activities covered may include: going to court for a criminal matter; commencing a legal action to recover a debt (or being subject to an action); participating in conciliation for a family law property dispute; appealing a Centrelink decision to the Social Security Appeals Tribunal (SSAT); or appealing a fine in writing to the SDRO. A person may actively participate (e.g. when they are an appellant in a criminal appeal or the applicant to a divorce) or they may be the subject of a legal action against them (e.g. being a defendant in a criminal matter).

The legal process originates at different points depending on the nature of the matter. For example, the legal process begins at the time of arrest for a criminal matter; when a person lodges an application for a family law matter; or when a person sends off a written appeal to the SDRO concerning an unpaid fine. The legal process then extends to the point of resolution (e.g. when a person is sentenced in a criminal matter, when a judge hands down his or her decision in a civil or family matter or when an inmate receives a letter back from the SDRO informing them of its decision). A legal process does not include informal inquiries made to authorities about a legal process or the activities leading up to the lodgement of a form, however, these actions may form the preparatory steps that make participating in a legal process possible and are consequently part of this analysis.

The following discussion on opportunities and barriers for prisoners to participate in legal processes is divided into three parts: the initiation of legal processes; preparation for legal processes; and, participation in a hearing or legal transaction. Note that among our inmate sample, by definition all were involved in participating in a hearing as defendants in their criminal matters. However, in many cases, civil and family matters had only reached the initiation and preparation stages.

Initiation of legal processes

In order for a prisoner to participate effectively in a legal process he or she needs to be aware the process exists, know what he or she must do to become part of that process and/or signal that intention to the relevant authority. Barriers to inmates' effective participation in this initial phase of the legal process raised in our interviews include:


Preparation for legal processes

It also became clear from the interviews that in the situation where a process was initiated, preparation for the resolution of a legal problem may also be undermined or at least constrained by being in prison. Preparatory activities include reading briefs of evidence for criminal matters, making inquiries about the status of a matter/application, or completing courses to establish eligibility for parole. Problems reported by interviewees with respect to preparing for legal processes were:


Participating in a hearing/legal transaction

The final stage in participating in a legal process (apart from experiencing the outcome of a decision) is the hearing or conduct of the legal transaction. This may be where the case for a complaint or restitution is argued and a resolution is negotiated/handed down. Examples include court attendance, signing contracts and parole hearings.

For inmates in this study, a major part of participating in legal processes involved attending court. According to our interview with a custodial officer at an urban prison, when an inmate is required to go to court, the court issues a warrant for them to appear on a particular day. Court warrant files are kept in the general office at the prison on the DCS Offender Integrated Management System (OIMS). Each day a court list is generated for the following day. The warrant should stipulate whether the inmate is to appear via AVL or in person. A prisoner must physically appear before the court for certain relevant criminal proceedings, such as a committal proceeding, fitness to stand trial proceeding, any trial or hearing of charges, any sentencing hearing (including a redetermination of sentence), any hearing of an appeal arising out of a trial or hearing or a person's first appearance before a court in relation to an offence (section 5BB of the 1998 (NSW)).

The process for transporting inmates to court was uniformly described by inmates and staff from all prisons. On the day of court, officers wake inmates at approximately 5.30 am and escort them to the prison's reception area where they are given their civilian clothes. Travel to court requires being transported on a truck to the court with other inmates from their own jail and, more than likely, a number of other prisons. Inmates are then held in court cells located within the court complex and are then returned to their prison mid to late evening the same day.

Increasingly, AVL is being used in place of an inmate attending certain hearings in person. In most parole hearings an inmate appears via AVL, however, the prisoner can make an application to appear in person. AVL is routinely used for preliminary criminal proceedings including bail applications, proceedings relating to the prisoners' remand, interlocutory proceedings and any arraignment on a day other than the day appointed for the trial. If AVL facilities are not available at the prison in which the inmate is usually housed, they may be transported to the nearest correctional facility that has AVL available. In the courtroom, there are a number of cameras, one on the judge, one on the lawyer and one on the public gallery (for family). In the AVL booth at the prison, the inmate sits before a number of television screens showing the different views of the courtroom. There is a telephone in the booth that the inmate can use to speak directly to their lawyer during the matter. During these calls, the AVL sound is automatically muted in the courtroom so that the lawyer and the inmate may communicate confidentially. There are also additional studios in the court building so that lawyers can speak to their client before or even after the hearing.

Inmates may also participate in 'legal transactions'. A legal transaction is an exchange or agreement undertaken according to law, such as the signing of a lease or contract. While a transaction may not be strictly a legal process, as defined above, it is a transaction that is legally binding and has legal implications. Inmates may wish to conduct legal transactions in order to be eligible for parole, or make financial arrangements for bail or business transactions.

Problems identified by interviewees with this final phase of participation in a legal process were:


Particular access issues identified as arising from AVL included:
Conclusion

Although the opportunities for obtaining legal information and representation and to participate in legal processes are technically available to prisoners, there is evidence from our interviewees that some of the consequences of imprisonment can lead to these opportunities being missed or compromised. For example, although there are prison libraries not all prisoners can access them; although lawyers visit prisons to provide advice inmates do not have long enough to receive satisfactory assistance; and, although hearings may be attended, inmates may not understand what has transpired.

What underlies barriers to inmates' access to justice? The previous section described mechanisms that aid inmates to address their legal needs and the barriers that inmates encountered in using them. However, it is not sufficient to simply say that certain opportunities for addressing such legal needs had failed to occur, or had occurred in an unsatisfactory way. Rather, we need to investigate where the points of weakness occur in prisoners' pursuit of justice as prisoners, and further explore how they come to be weakened. From such an analysis it will then be possible to propose how the pathways through which prisoners address their legal needs may be strengthened. The following four chapters will analyse in depth the factors that appear to underlie the barriers to inmates addressing their legal needs and accessing justice identified in the current chapter. Briefly, the discussion will analyse the role of:


The final chapter (Chapter 10, 'Discussion') will describe the broader effects of the action and interaction of these factors upon inmates' legal needs such that a framework for developing strategies to address weaknesses and capitalise on strengths may be outlined.


Ch 6. Prisoner Capacity


Introduction

A prisoner's capacity to identify and deal with legal issues they are facing and to actively participate in legal processes to resolve those issues whilst incarcerated is affected by a complex interplay of factors. Some factors relate to systems (legal, bureaucratic and custodial), some to individuals within these systems (inmates, lawyers and prison staff) and some to the prison culture. This chapter focuses on those factors that are related specifically to the prisoner. In particular, it examines how the capacity of inmates to address their legal needs is affected by their own:


Importantly, these factors should not be considered in isolation from their systemic context. Some of the characteristics identified as relating to the inmate are influenced or exacerbated by their environment. For instance, a lack of motivation to address outstanding debts must be considered in the context of limited financial resources and the difficulties they face in dealing with them from prison (Stringer, 1999). It is important to shed light on those aspects of a prisoner's life and skills that may affect their ability to access justice.

Histories: lives before prison

— DCS welfare officer

Among the more than 9 000 inmates in NSW jails are men and women with diverse backgrounds, histories, abilities, experiences and traits. Yet there are certain histories and characteristics that are commonly reported among the prisoner population, which can have a direct bearing on the capacity of inmates to address their legal needs. Chapter 2 provides a picture of the overall characteristics of the NSW prisoner population in terms of gender, age, ethnic or Indigenous background, education level and health status. The following analysis examines the personal characteristics of prisoners and their lives which were identified in this analysis as having an impact upon their ability to access justice. While some of the features we describe are not unique to prisoners (e.g. poor literacy), they are discussed here because of their prevalence within the prison population and their particular impact on access to justice issues in the prison environment.

It appears from our interviews that it is not uncommon that life prior to coming into custody is chaotic and, for some, spiralling out of control. According to our interviews, for many prisoners this pre-custody period is characterised by unstable living arrangements, poverty, alcohol and other drug misuse, mental illness, damaged or unhealthy relationships with family and friends, and poor histories with government agencies and other services providers. It became clear from our interviews that the impact of these somewhat chaotic lifestyles before prison both contributed to the range of legal issues with which people arrived in prison and continued to affect their capacity to address their legal issues while incarcerated. These legal issues may continue unresolved well into their post-release period.

Chaotic lives

Alcohol and other drug use, mental health issues, transient lifestyles and criminal activity were all commonly reported by our interviewees as precursors to prison. A sample of descriptions given by our interviewees characterise this period:

— Mike, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison
— Malcolm, male parolee, 35+ years, non-Aboriginal, urban area

A lawyer who regularly attends prisons observed:
— Legal Aid solicitor

These comments are supported by the statistics presented in Chapter 2, which indicate a high prevalence of mental disorders (psychosis, affective disorders and anxiety disorders) and substance use disorders among inmates on reception into prison and in the 12 months prior to their incarceration.

As outlined in Chapter 4, inmates interviewed for this study commonly came to prison with a range of civil and family law problems in addition to their criminal law issues. These included accumulated debts and fines, evictions and/or blacklisting from housing, as well as child support and custody residence issues. Indeed, our research has suggested that incarceration is not just a marker of criminal law issues, but is often an indicator of crisis more generally.

One impact of inmates having pre-existing legal problems when they enter prison is that, when they are removed from the community, their legal issues often remain. Family on the outside may be directly affected by these issues whilst the inmate is in prison (Woodward, 2003). However, it is often not until release that inmates themselves feel the full effect of these unresolved issues, which may have by then compounded and generated further problems:

— Probation and parole officer, urban area

If the legal issues accumulated through their chaotic lifestyles prior to prison are not resolved during imprisonment, as the quote above suggests, people are likely to return to the community with debts, fines, housing and other non-criminal legal issues dating back to pre-prison life. These unresolved issues add to the difficulty of people re-establishing themselves in the community after a period of custody.

Damaged and damaging relationships

Adding further to the challenge of dealing with outstanding legal problems from the period before custody, prisoners may also have severed and/or damaged relationships with family and friends, government agencies (e.g. DOH or Centrelink) and other support services that could assist them with these problems in their post-release life.

Personal relationships

— Custodial officer, urban prison

It would appear from our data that the chaotic and often desperate lives inmates lead prior to incarceration could have detrimental effects on their personal relationships, and the resulting level of support they could draw on to address legal issues. For example, one inmate, Frank, commented on his difficulty in obtaining work because of the reputation he has with family and friends:
— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

A DCS officer noted that, while families can and often do play a vital role in supporting prisoners to avoid and address legal problems, their willingness and capacity to provide ongoing support may be compromised by the inmates' behaviour:
— Non-custodial staff manager, urban prison

Inmates' expectations of the support they may receive — and of their legal options — may also be quite unrealistic, given the toll that their pre-prison lifestyle has taken. The following example relates to the difficulties involved in regaining access to, or custody of, children:
— Legal Aid solicitor

For other prisoners, families and close friends have been integral to the chaotic lifestyle they were living. In these cases, inmates and workers spoke about the need for people to break ties with particular family members and situations in order to move away from illegal behaviour.
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

However avoiding this situation can be difficult when other sources of support are limited.
— Probation and parole officer, urban area

Relationships with agencies

Poor histories with government and other support agencies can also make it difficult for inmates both to resolve their civil and family law issues and to re-establish life post-release. As described in Chapter 4, service providers reported the difficulties they faced trying to re-house ex-prisoners when they had been banned by the DOH, placed on tenancy default databases (blacklists) or excluded from support services due to their previous histories:

— Legal Aid solicitor

However, the breakdown between inmate and agency may be a two-way street: with prisoners also distrustful of or reticent to re-engage with government and other agencies:
— DCS welfare officer, urban prison

This is consistent with previous research which has indicated that some ex-prisoners did not attempt to resolve DOH debts because they believed, based on past experience, that doing so would be 'wasting their time' (Baldry et al., 2003, p. 14; see also Stringer, 1999). Having a poor history with agencies also appeared to increase the isolation of inmates from the conventional world and drew them back to seeking more marginal sources of support:
— Financial counsellor

Accordingly, through often erratic and dysfunctional lifestyles inmates may have 'burnt their bridges' with those who could potentially support them during the post-release period. However, not only are family members and mainstream support services sometimes wary of inmates, but prisoners themselves can be reticent to draw on these groups for support. Having compromised their options for assistance and support, inmates may instead be drawn back towards the networks associated with their offending behaviour, thereby undermining their attempts to re-establish their lives after being released from prison.

Awareness of the damage done

An unstable lifestyle prior to custody, particularly when alcohol and other drug misuse or mental illness have been factors, may also mean that inmates are not fully aware of the extent of the legal problems that have accumulated during the period before they went into custody. Frequent changes in address prior to their imprisonment may also mean that notices and letters are not received or become lost in residential moves. In other cases, through their disordered life before prison, the person may have simply forgotten specific events or issues that have developed into legal issues. As one support worker observed:

— Homelessness worker, urban area

Ricky, a long-term inmate noted:
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison

Not only may inmates have accumulated legal issues through their chaotic lives prior to custody, they may not be aware of the full of extent of these issues when they are in prison. Events may also be forgotten with the length of time people spend in jail, separated from their former lives. Consequently, legal problems may accumulate but not become apparent to the inmate until they leave prison and start to re-engage with their former lives.

Informality in personal affairs

A further feature of prisoners' lives before custody that was relevant to an examination of prisoners' legal needs was a tendency for inmates to manage their financial affairs and family arrangements without recourse to formal legal transactions or processes. Examples raised in our study included informal money lending between family, friends and acquaintances, unofficial custody arrangements for children and the unauthorised sub-letting of housing. Inmates interviewed commonly reported having made relatively informal arrangements with their housing, allowing friends to occupy their accommodation while they were in custody or when they had moved elsewhere:

— Frank, male parolee, 25–34 years, non-Aboriginal, rural area

This may be because, as perhaps is the case for people who are not inmates, informal arrangements may seem simpler, develop slowly over time, or are emergency measures that become permanent. There was also the suggestion that informal arrangements were preferred because inmates had negative perceptions of the legal system. For example, it was evident during the interviews that prisoners and ex-prisoners were often quite suspicious of the law and legal process and its capacity to deliver positive outcomes for them. This appeared to contribute to the tendency towards informal arrangements:
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

One father indicated he would deliberately avoid using legal processes to gain access to his children because of the perceived impact of the system on them:
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

Toby also indicated that he would not go to the police when he had been a victim of crime, even though this affected his capacity to be compensated for his injuries:
— Toby, male remandee, 35+ years, maximum security, Aboriginal, urban prison

Accordingly, some inmates spoke of the legal process as potentially damaging to what were already fragile relationships and sought to avoid these processes, even if they recognised that these processes may yield benefits to them. Inmates may also be isolated from conventional processes by a history of exclusion from the mainstream community:
— Financial counsellor

In some cases, these informal arrangements may be entirely consistent with customary practices (e.g. among Aboriginal people) and is also apparent among people who have not been in jail. However, incarceration brings to these arrangements particular difficulties and consequences. One impact is that informal arrangements may result in additional legal problems because the inmate cannot protect their interests whilst in prison.
— Welfare officer, urban prison

This theme is further discussed in Chapter 8 concerning prisoners' dependence on intermediaries.

Another impact of inmates having informal personal arrangements that are made outside the law is that, if the informal agreement fails, it is more difficult to use the law to assert an inmate's rights and preferences, particularly from prison. In part, this is because inmates have little or no documentary evidence of the arrangements they have made. For instance, Sharon described the care arrangements for her two older children, who had been living with her Aunt while she was been in prison:

— Sharon, female parolee, 25–34 years, Aboriginal, urban area

Without any formal agreement, Sharon's contact with her children now she has been released from prison is contingent upon her Aunt agreeing to allow access:40
— Sharon, female parolee, 25–34 years, Aboriginal, urban area

Finally, in our interviews we also found that this preference for informal processes was also manifest in examples of violent retribution, some of which led to the inmates being incarcerated for their actions. The use of violence by inmates to resolve issues whilst in prison is discussed in detail in Chapter 9.

Consequently, our research indicates that prior to coming to prison, prisoners tend to have arranged their affairs without recourse to formal legal transactions or processes. This can manifest as informal money lending, sub-leasing of housing, unofficial care arrangements for children and the use of violence to settle matters. The tendency towards having informal rather than formal arrangements appears to be, at least, partly the result of a suspicion of the legal processes and a general isolation from conventional opportunities and processes. The impact of this separation from formal processes is that, in the absence of defined arrangements (including contractual documents), it may be difficult to negotiate resolutions when disputes do arise while one party is in prison. In this way, prisoners' ability to use the law to address problems may be somewhat compromised. Without — as they see it — being able to call upon the law, inmates may be drawn towards less conventional resolutions to their problems.

Financial capacity/resources

— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

Prisoners' financial capacity and resources emerged from our analysis as a second broad characteristic to affecting how inmates meet their legal needs. According to previous research, most prisoners come from economically disadvantaged backgrounds (Butler & Milner, 2003, p. 23–24; Stringer, 1999). Incarceration further interrupts the income flow as people lose their jobs and, in some cases, their businesses when they go to jail (see Chapter 4). Once in jail, inmates' earning capacity is very limited, ranging from $12.60 a week for 'unemployment benefits' to $63.30 per 30-hour week (including a 'performance component') for highly skilled jobs in the 'business units' (prison industries). More commonly, inmates earn between $20–$30 per 30-hour week in business units and $14–$3241 per week in service industries (NSW DCS, 2006c, ss. 4.6–4.8). In addition, for some inmates, financial resources on the outside are frozen after their arrest and are subject to confiscation:
— Financial counsellor

Lack of financial resources interacts with access to justice in a number of ways. Firstly, as noted in Chapter 4 a person can be kept in jail simply by virtue of an inmate or his family not being able to raise bail:
— Custodial manager, rural prison

Inmates incarcerated multiple times may also find their family less able to assist:
— Official Visitor, urban prison

Secondly, legal representation and expenses drain inmates' and their families' financial resources. While many inmates are represented at a heavily subsidised rate or at no cost by Legal Aid or the ALS, there is a sizeable group of people who are not wealthy, but have enough income or assets to render them ineligible for legal aid for their criminal matter (Legal Aid NSW, 2006b):
— Probation and parole officer, urban area

With their freedom at stake, some inmates were reported to choose private representation in preference to Legal Aid or the ALS, even though it financially depleted them or their family:
— Probation and parole officer, urban area
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

Thirdly, the depletion of financial resources through the criminal legal process also affects the type of legal support an inmate can obtain if they have any further legal problems after their initial incarceration:
— Geoff, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, rural prison
— Official Visitor, urban prison

Consequently, consistent with earlier research (e.g. Stringer, 1999), it was clear from our study that most inmates left jail in a weaker financial position than when they went in. This in turn affected their capacity to re-establish themselves during the post-release period:
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Upon release, prisoners may also face additional debts arising from court costs and any victims compensation restitution for which they are liable (see Chapter 4, 'Legal Issues affecting Prisoners'). Indeed, debt is one of a number of factors (including homelessness, unemployment, addiction issues, as well as being female and being indigenous), which has been associated with returning to prison (Baldry et al., 2006, pp. 28–9). Baldry et al. (2003) found that ex-prisoners who had debt were statistically more likely to return to prison (50%) than those without debt (30%) (p. 14).

It would seem that inmates tend not to enter jail in a strong financial position. While some will be eligible for subsidised assistance from Legal Aid or the ALS, others will have to (or may choose to) engage private representation. As the additional costs of legal representation come at a time when a source of income has been lost because the inmate is incarcerated, prisoners and their families may become further impoverished through the legal process. As inmates cycle through the system for the second or third time, their financial resources, the goodwill of family and friends, and the range of options available to them for legal representation are only further exhausted. Meeting legal needs during successive terms in prison becomes more difficult to sustain and consequently any legal problems not demanding to be resolved tend to go unattended.

Prior experience of legal processes

The third area that affects inmates' capacity to access justice is their prior experience with legal processes. In our interviews, lawyers, DCS staff and inmates alike maintained that inmates were able to draw on their previous experiences with the law to better negotiate legal and custodial systems. However, it will be argued here that the level of knowledge among inmates of the laws and legal processes is not consistently high, accurate or broad enough to cover the range of criminal and civil matters they may face.

Criminal law processes

Lawyers, custodial staff and inmates all commented on the apparent depth of knowledge of the criminal law process displayed by some of the more experienced long-term inmates:


One interviewee specifically linked this knowledge with their prior experience:
However, the confidence and familiarity of some prisoners with the law and legal processes can mask gaps or inaccuracies in their knowledge. By way of example, one very experienced inmate spoke of his anxiety when faced with a legal process he had not encountered before:
A parole officer who works at a court noted how having partial knowledge, and possibly overestimating that knowledge, could work against an inmate:
Consequently, inmates' knowledge of criminal legal processes is likely to be biased towards those of their own experience. However, even with 'experience' as indicated by multiple incarcerations, inmates may not have developed the level of knowledge they are attributed with by stakeholders. Their previous experiences may have been tainted by the effects of such issues as limited education, poor literacy, mental illness, alcohol and other drug misuse, and/or the anxiety and stress of the experience itself. As will be illustrated in the next section, these characteristics militate against knowledge and skill being acquired and retained. Further, the presence of an apparently highly informed group of inmates obscures the fact that there are many other inmates who have very little understanding of the law and legal processes in general, let alone the possible course of their own legal matters.

Among the current sample, many inmates indicated that they had limited knowledge about: how to get legal information and advice within jail; what was the likely progress of their own matter; how to interact with their lawyer; and, what were the possible outcomes concerning their matter:


Another issue is that, to access legal help from inside jail, inmates must also be able to find their way through the correctional system. As described in greater detail in Chapter 8, the route to getting legal help from within jail may be convoluted, with no single obvious starting point. This is particularly confusing to inmates who have never been in custody before:
As suggested by Mike, those who have not been through legal or correctional systems before rely more heavily than more experienced inmates on support and assistance to access legal help and to participate in the legal processes.

Civil and family law processes

The inmates we interviewed appeared to have less experience and knowledge about civil and family law, than they do about criminal law:


How to engage with bureaucracies and how to appeal their decisions were two areas particularly relevant to inmates, but about which they appeared to have limited knowledge. For example:
Thus, in contrast to criminal law processes, which by definition all inmates have been subject to, prisoners may not have previously participated in a civil law process. The tendency, discussed earlier, to not arrange personal matters through the law, only contributes to this lack of experience. The gap in inmates' knowledge may be further perpetuated by a tendency to focus purely on their criminal law matter when on remand. Attention to their civil matters may be further postponed once they are sentenced, as inmates focus on surviving or making the best of prison life:
Consequently, some (usually long-term) inmates with a lot of experience with the criminal law process appear very 'savvy' about the law and legal processes, particularly criminal law. However, their familiarity and confidence about the law can mask both the gaps in their own knowledge and the presence of many other inmates with considerably less familiarity with the law and legal processes. Notably, the level of knowledge among our sample of inmates about civil and family law processes was considerably less than about criminal law, to the point where, in our interviews, the term 'legal' was commonly taken to only refer to 'criminal law'. This is consistent with inmates having less experience with civil and family law processes and the prioritisation of criminal matters over other legal issues.

At the beginning of this chapter we identified six broad characteristics of prisoners and their histories that can affect the capacity of inmates to access justice. We have discussed the impact of inmates' chaotic lives prior to prison, their financial capacity and previous experiences with the law. We now turn to issues relating to cognitive capacity, literacy and comprehension, before we turn to styles of interaction common among inmates and the impact of prison on life skills.

Cognitive capacity, literacy and comprehension


While prisoners are by no means the only people to face difficulties in reading and understanding legal documents, as a group, they are disproportionately affected by cognitive impairment and poor comprehension skills. Contributing to the high levels of cognitive impairment within the prisoner population are inmates who experience one or more of the following problems: intellectual disability; limited educational opportunities; poor literacy; acquired brain injury (ABI); alcohol and other drug impairment; and, mental illness. Limited proficiency in English is also an issue for a significant minority of inmates. Details of the prevalence of each of these issues among the prison population are outlined in Chapter 2.

A key point to make here is that within the inmate population are people who experience more permanent or long-term forms of impairment (e.g. intellectual disability, poor literacy and ABI) and people with short-term forms of impairment (e.g. alcohol or other drug intoxication or withdrawal, the impact of severe mental health episode or medication, anxiety and stress). Further, as this section will illustrate, some of the temporary forms of impairment tend to coincide with crucial points in the legal processes, such as at the time of arrest and police interview, and attending initial court hearings. This is critical because it is at these times when inmates must draw on their skills to engage with the process when they appear to have the least capacity to do so.

The capacity of an inmate to comprehend legal material and engage in legal processes may be affected by either one or more problematic issues, such as poor literacy, limited educational opportunities, limited proficiency in English, intellectual disability, ABI, substance misuse, mental health issues, anxiety and stress. The major effects of inmates not being able to comprehend legal information, advice or processes, identified in our interviews were:


Each of these issues is discussed below.

Understanding and participating in legal processes

It was evident from our research that inmates often did not comprehend the legal processes that they are subject to, commencing from the earliest stages of arrest and incarceration. Of note was the prevalence and impact of intoxication and acute mental health issues at these early stages, over and above the longer term effects of limited education, literacy and intellectual disability. For example, Ricky and Karla describe their experience of arrest and their cognitive capacity at the time:


Comments made by prison reception staff suggest that the types of impairment described by Ricky and Karla are not uncommon among prisoners first coming into prison from police custody:
There are a number of implications of the above situation. Firstly it raises questions about the competence of impaired individuals to participate in the legal processes that directly precede their custody (e.g. police questioning, etc.). Second, the capacity of inmates to identify and address legal issues arising from being taken into custody, such as housing and child custody issues, is also likely to be impaired. Finally, delaying the screening process until they are competent may mean that important criminal, civil and family law matters may be identified too late.

Inmates' lack of cognitive competence in these early stages of incarceration continues to interfere with their access to justice when they attend court. For example:


Consequently, it would seem that inmates, whether affected by drugs, alcohol, mental illness, shock and/or longer term forms of impairment, find it difficult to successfully negotiate the legal processes they are faced with during the early phases of incarceration. Their ability to absorb and impart information, so that their needs can be met, may be significantly compromised by their cognitive capacity during this period, a time when their legal needs are acute.

However, our interviews also indicated that, as inmates settle into prison, they appear less likely to be affected by alcohol or drugs and more likely to be medicated appropriately for their condition:


Accordingly, even though many inmates have very poor capacity when first incarcerated, it may be that further into their imprisonment there is a period of clarity and, for those incarcerated long enough to stabilise, an opportunity to address outstanding legal needs. However, it must be recognised that for some prisoners, intellectual disability, language barriers, very limited education or poor literacy will continue to affect their capacity to engage with legal processes throughout the incarceration process and beyond.

Using AVL

As was discussed in Chapter 5, AVL is increasingly being used to enable defendants to appear in court, without having to be physically transported to the court house. However, our interviews have indicated that appearing in court by AVL may add an additional layer of confusion for some inmates.


AVL has a particular impact on inmates who may already have difficulty understanding the court process, due to intellectual disability or language difficulties:
Lack of comprehension, whether due to the complexity of the legal process or the comprehension capacity of the inmate or both, may result in some inmates participating in legal processes with little or no knowledge of what is happening. This appears to occur even though these processes can have a profound impact on their lives. In short, the legal process may progress on the false assumption that the inmate has a certain level of knowledge and understanding. This appears to be exacerbated when inmates appear in court by AVL.

Signing documents

The issue of inmates signing legal documents without fully understanding the contents and implications of the transaction was also raised as an issue in our study. Examples were given of inmates consenting to legal transactions such as parole conditions and agreements with government agencies, without being able to read or understand the obligations they had accepted on paper. For instance, inmates had left themselves vulnerable to breaching bail or parole conditions and AVO/ADVOs, as well as contractual agreements such as tenancy documents and Centrelink agreements, because they did not understand what they were agreeing to:


A financial counsellor working with inmates further observed that:
Although again a tendency to engage in legal transactions without fully understanding the terms of that transaction is not unique to prisoners, this group are often subject to a range of obligations and conditions, the contravention of which can have considerable repercussions for them. For example, an inmate agreeing to parole conditions that they have not fully understood could well result in their return to jail.

However, it must be acknowledged that, as Elliot, another inmate identified, this lack of comprehension of the legal process may be as much a function of the language and culture of the law as it is a reflection on the cognitive capacity of inmates:


Exclusion from programs

A further issue related to cognitive capacity and participation in legal processes was raised in relation to inmates with an intellectual disability (although it may apply a little more widely than this group). According to interviewees from the IDRS and CJSN, inmates with an intellectual disability may not have the same opportunity to participate in educational programs that are required for eligibility for parole. They said:


The assertion made here is that because of an intellectual disability, inmates may not be able to join educational programs that are prerequisites for parole and so do not have equal access to early release. The interviewees went on to explain why they believed this situation occurs:
In this way, intellectual impairment becomes a barrier to participating in a legal process, namely an application for parole. It appears that the mode by which certain courses are delivered is not appropriate for such people and this renders them ineligible for the course and in turn indirectly makes them ineligible for parole.

Difficulties in the lawyer–client relationship

As indicated earlier in this report, 'access to justice' implies that, with appropriate support or representation, participants in legal processes understand and can make informed decisions that affect their participation in that process and its outcomes. Lawyers and legal assistance services are key providers of that support. However, the client is still expected to understand and be active in this relationship. For instance, they must instruct the solicitor, take his or her advice, recount details of relevant events and provide documentation. It was evident from our research that because of reduced capacity, some prisoners faced difficulties in this relationship and, in particular, in being able to communicate effectively with their lawyers. Difficulties in communications included both understanding their lawyer's advice to them, as well as articulating their instructions to the lawyer:


In Sharon's case, she took her caseworker to meetings with her lawyer so she could have someone explain what transpired to her at a later time. Workers also recognised the difficulties faced by prisoners in the lawyer–inmate relationship given the various impairments with which this group is often afflicted:
As described earlier, the shock of their situation, together with the anxiety, stress of incarceration and the legal process, a prisoner's capacity is reduced so that it is hard for them to hear the advice they are being given by their lawyers and to act accordingly:
The situation is exacerbated by the systemic constraints that commonly affect lawyer–client relationships involving prisoners:
Aspects of the systemic environment that severely compromise communication between lawyers and their prisoner clients are further discussed in Chapter 7.

A number of interviewees reported that, when inmates did not understand what they had been told by their lawyers, they did not necessarily admit to their lawyer that this was the case:


As these quotes indicate, solicitors may leave an inmate unaware that their client has not understood the advice they have been given. Consequently, not only is the client left with an incomplete picture about their case, the lawyer may also be labouring under the false impression that he or she has all the relevant facts about the matter. This is because they are not aware that the inmate could either not express themselves properly and/or did not understand that there were some particular facts they should have disclosed. Effective participation in the legal process in such circumstances is clearly undermined.

Withdrawal from assistance

Our research has indicated that as a result of not being able to read or comprehend legal material, advice or legal processes, some inmates withdraw from legal help. In some cases inmates did not to seek out legal information and assistance while, in other cases, they actively avoided help:


One worker described an instance when an inmate hid from her legal counsel because she did not understand what he was telling her:
As a result, inmates can become further alienated from the services that are there to support them:
Consequently, an inability to comprehend legal information or advice, whether because of low literacy levels, anxiety, intellectual disability or limited English, may result in inmates avoiding assistance. Perpetuating this problem is a sense of shame. Consistent with participants in other Foundation research (Forell et al., 2005, p. 122–123), some inmates in this study reportedly masked their inability to read or understand information and advice relevant to their legal problems. As a number of workers noted:
Accordingly, not only does the person avoid assistance because it is confusing, they are unlikely to be open about the real reason for avoiding help due to a sense of shame. Lawyers and workers may not be aware of, or may misunderstand the inmates' motivations for not seeking assistance, adding to the challenge of addressing their concerns.

Dependence on others

A final impact of not being able to read or understand legal documents or processes is a dependence on third parties for assistance. Inmates who cannot read or understand material often rely on others to pass on legal information, to read legal documents or to explain contracts or legal agreements (e.g. parole conditions). A good example includes inmates from non-English speaking backgrounds.


While inmates who do not speak English may have access to an interpreter at court or in formal conferences with their lawyers, they are often dependent on DCS staff and other inmates from the same language background to explain prison processes, legal processes and to interpret documents in their day-to-day life in prison. Details of the particular vulnerabilities of being dependent on a third party in a correctional environment are further discussed in Chapter 8.

Summary

Effective participation in the legal system demands a cognitive capacity, which many inmates do not have. Their lack of such capacity may be either temporary – due to acute mental illness or because of their alcohol or drug related issues – or it may be a more permanent problem because they are suffering from an intellectual or other disability. Effective participation also demands an ability to communicate relevant information succinctly (e.g. in a short conference with a lawyer before court) and to comprehend relatively complex written text and at times complicated legal language, in a very formalised and intimidating environment. The prevalence of poor literacy, low levels of education and limited English among prison inmates reduces the likelihood that the inmates will meet these demands and participate fully in legal processes.

Of further concern was the ease with which the inability of inmates to fully comprehend legal information, advice or outcomes could be overlooked. Previous experience or time inside can be taken as a proxy for knowledge, even though intellectual disability, anxiety and stress, or other cognitive impairment may have prevented information about the legal process being assimilated and retained. Lack of capacity can also be masked by bravado or silence as an inmate may be too embarrassed to admit that they did not understand or cannot read. Finally, people can be so intimidated or overwhelmed that they withdraw from legal help and, as will be demonstrated in the next section 'Life Skills', simply 'take what comes'.

Life Skills

A final aspect raised by interviewees in this study was the issue of life skills. In the context of this report, 'life skills' mainly refer to interpersonal skills (such as the way inmates interact with each other and the authorities) and their daily living skills (such as managing finances and using new technology). It became apparent that the ability of inmates to prevent and address their legal issues was dependent on having appropriate and effective interpersonal skills as well as general living skills. However, there were many examples given where inmates' capacities on these two fronts were inadequate and in some ways a function of their incarceration.

Interpersonal skills


Our interviews have suggested that some inmates are excellent at accessing services and utilising legal and administrative systems, for example: finding a lawyer, organising with SDRO to repay fines, running an appeal against their conviction or facilitating visits with children from which they have been estranged. They are skilled at dealing assertively and appropriately with government agencies and can effectively engage with and instruct their lawyers. At a roundtable of solicitors and barristers, observations included:
However, while some inmates are extremely effective at accessing legal help, other inmates are not so able to achieve the tasks necessary to effectively participate in the legal system. Two dominant styles of inmate interpersonal behaviour were identified as pertinent to inmates' access to justice in the present research. The first was a tendency to passive behaviour and withdrawal from problems and assistance. Aggression was the second style of behaviour, with appropriately assertive behaviour being less evident.

Passivity

The persistence and success of some prisoners in pursing their rights appeared to mask the fact that many more inmates are not assertive and will not take action concerning their legal issues or seek redress. Resignation and acceptance of situations, even when that situation was less than satisfactory, seemed to be one reason behind this absence of action:


Some people appeared to accept the situation as it is, because they believed any action they undertook would not make any difference:
Previous experiences have sometimes fuelled this perception that taking action is not effective:
Others felt that the process for taking action was just too difficult or felt worn down by the process:
Interviewees also identified certain subgroups of inmates, such as those with intellectual disability, as being less assertive than others. For instance:
Motivation was also reported to be impaired, for some, by medication or illicit drug use:
There were also examples of this passivity pervading inmates' relationships with their lawyers. This is problematic, as the inmate should be instructing their lawyer and their lawyer should be acting accordingly:
A theme that runs through the comments made above is that, in the view of some inmates, the odds of achieving fair outcomes through taking action were low. The passivity of inmates appears to be fuelled by the view that either there was nothing that could be done to address the problem, that the problem is too difficult to address or that the situation is just 'the way things are' and/or is what they deserved in the first place. It may also be that the depression and despondency among inmates described below contributes to these views. Further, as discussed in Chapter 9, passive behaviour — following orders and accepting the routine — appears to be reinforced by the jail culture.

Depression and despondency

It was evident from the interviews that depression and despondency contributed to prisoners' passivity in addressing their legal and other needs:


Not surprisingly, the situation inmates find themselves in can contribute their feelings of depression and despair:
Workers described the impact of depression and despondency on the capacity of inmates to ensure that their matters were progressing:
Shame

One other emotion identified by a number of inmates as reducing their preparedness to seek legal help, was the sense of shame and embarrassment about the trouble they were in, particularly when they first came into custody:


While some inmates were very active in pursuing their legal and other needs, many inmates were not so assertive. Feeding into this passivity were feelings that taking action would make no difference, that it was too hard or that they 'deserved' the situation in which they now found themselves. Low self-esteem, a depleted sense of entitlement and a sense of shame, together with depression and anxiety, also appeared to act as barriers to inmates taking action to address their legal issues. Certain groups of inmates, such as Indigenous inmates and inmates with cognitive impairment may be particularly vulnerable to this passive, defeated state. Finally, the broader literature has suggested that prisoners' levels of passivity may also increase and that they may become more socially withdrawn as they settle into prison life (Paulus & Dzindolet, 1993, p. 164).

Aggressive, not assertive, behaviour


Inmates' lack of assertiveness was a common theme raised during our interviews. In some circumstances this appeared to result in the passivity described above. However, in other cases inmates were reported to revert to more agitated and aggressive behaviour:
Some inmates described aggressive forms of behaviour as 'their way of doing things' or the way to achieve a result:
The boundaries between assertive and aggressive behaviour may not always be clear and for some inmates, aggressive behaviour had assisted them to achieve their goals. Indeed, like passive behaviour, it appeared that aggressive behaviour can be reinforced in custodial settings (see Chapter 9). In this case, aggression can aid survival in prison, to maintain status among other inmates or gain attention from service providers:
With a tendency towards either passive behaviour or aggressive behaviour, inmates were reportedly poorly practised at being assertive in order to gain assistance. Further, the behaviours that are conventional in the prison context, such as, aggressive 'survival' style habits suited to the prison yard, are likely to be counter productive in non-prison settings.

Impulsivity

Another factor contributing to more aggressive styles of behaviour, according to a small number of interviewees, was a degree of impulsiveness and impatience evident among inmates:


Impulsiveness also presents a particular challenge for inmates once the physical boundaries and routines of prison are lifted post-release. Inmates report not always being able to cope with the loss of these boundaries after their release. This may leave them vulnerable to re-offending:
Previous research has identified impulsiveness as a characteristic of those committing certain types of criminal offences and, by association, a trait of certain subgroups of prison inmates. For instance, Makkai and Payne (2003) reported from their study of incarcerated drug offenders that:
In a discussion of the epidemiology of prison violence, Butler and Kariminia (2005) assert that 'the link between impulsivity and offending has long been established in the criminology literature'. International literature reports high levels of Attention Deficit Hyperactivity Disorder (ADHD) among adult prisoners (e.g. Roesler et al., 2004 and Rasmussen et al., 2001). Having reviewed relevant studies, Barkley, Murphy and Fischer (2007) concluded that 'adults who engage in antisocial activities, especially as reflected in adult prisoners, are more likely to have ADHD than would be expected by chance alone' (p. 309). Butler and Milner (2003) also draw a link between impulsivity and brain injury in their research into the health of NSW inmates. Their data on the prevalence of high brain injury among NSW prisoners is outlined in Chapter 2 of this report.

In summary, our analysis suggests that inmates tend towards both passive behaviour and/or aggressive behaviour and appear least practised and less skilled at dealing with issues assertively. Further, these behaviours, although generally maladaptive, may actually reflect modes of behaviour that achieve inmates' goals in the prison environment (see Chapter 9).

Preferred modes of communication

Another aspect of interpersonal skills concerned the modes of communication in which inmates best preferred. It became evident in our interviews, that some inmates had difficulties with certain forms of communication. For instance, one officer identified many male inmates as being poor at communicating effectively by telephone:


We identify the mode of communication as an important issue because telephone based services probably represent the most direct, accessible professional legal advice available to inmates. Face-to-face legal advice was identified as the preferred mode of communication for most inmates, but due to the systemic barriers identified in Chapter 7, this form of advice is less readily available, particularly for civil and family law matters.

The other mode of communication open to inmates is by letter. However, as identified earlier, the low literacy and education levels within prison reduce the utility of this form of communication for some inmates. Accordingly, inmates' own variable personal skills and styles of communication add another layer of complexity to the provision of legal assistance in prison.

Summary

Styles of interaction used by the inmate population, namely passivity and aggression, and inmates' preferred modes of communication (e.g. face-to-face, or at times, fist-to-fist) interact with the issues identified earlier in this chapter, which affects inmates' capacity to ask for legal assistance, understand the advice or information given, and to appropriately participate in legal processes. While some inmates are very effective at getting their needs heard and addressed, many more inmates are not so assertive, to the extent that they will not seek to address problems they are facing or get any assistance to do so.

In contrast, other inmates may resort to behaviour patterns that have been adaptive in the prison or other contexts and are aggressive in their attempts to address their needs. Again, the frustration of trying to get information about the progress of their legal matters and to address legal problems from within jail may further encourage this type of response. Once the very defined boundaries, routines and support networks of prison are removed, some inmates find it difficult to successfully modify these behaviours to those more conducive to receiving assistance on the outside. While this may also be true of people institutionalised in other settings, it remains a pertinent issue for prisoners.

General living skills

Having operated outside the mainstream before coming to prison, as argued earlier in this chapter, some inmates come to jail not highly skilled or practised at effectively managing their personal affairs or dealing with conventional society:


This is particularly the case if people had led the types of chaotic lifestyles described earlier:
While inmates may undertake education courses in jail to improve particular skills, there is little scope within the routine of prison for inmates to make decisions about or take responsibility for their day-to-day lives. Furthermore, inmates are detached from day-to-day responsibilities of the outside world such as budgeting, paying bills, caring for children, arranging work or finding accommodation. A number of stakeholders suggested that inmates lose the confidence and capacity to perform some of these daily tasks:
For those who have been in the system a long time, some may fear their release because of their lack of skill:
— Dan, male sentenced prisoner, 35+ years, Aboriginal, rural prison

In an analysis of the effects of long-term incarceration, MacKenzie and Goodstein (1985) described a process of prisoners becoming 'institutionalised':
The separation of prisoners from their issues 'on the outside' has also been identified in the literature as an effect of time in prison (Paulus & Dzindolet, 1993, p. 149 and MacKenzie & Goodstein, 1985). This description appears to combine a number of other characteristics of inmates described in this chapter — the increasing passivity and the loss of confidence and skill — demonstrating how these characteristics and phenomena interact and confirm one another.

Yet it is not just the case that an inmate becomes deskilled at managing themselves and their affairs while in jail. While inmates are incarcerated, technology in the outside world is rapidly changing and moving on. By the time they are released, inmates may not be familiar with, or at least not confident to use, technologies and communication mechanisms, which have advanced since their incarceration.

For instance, recognising that prisoners have no access to mobile phones or the internet, an inmate jailed for, say, five years may have no experience of internet banking, have never used BPAY, or filled out an application form online. They would not be familiar with SMS messaging or third generation mobile phones. An inmate who has been incarcerated for 10 years may have never seen the 'Google' search engine, and may be alarmed at the extent of information that is available on the internet. All inmates are coming out into an environment where mobile phones are replacing landlines as a primary form of contact/communication. Thus inmates may be uncomfortable or at least unfamiliar with technologies that are helpful in accessing legal assistance.

Conclusion


This chapter has outlined how the personal histories and experiences of inmates, their cognitive capacities and personal characteristics all contribute to the legal issues faced by prisoners and their capacity to resolve their legal needs. It seems opportunities to access justice may be missed because of (among other things) barriers relating to the inmate's personal capacities.

Prisoners commonly reported that their lives had been spiralling out of control prior to their coming into custody. They had commonly experienced mental illness, alcohol and other drug misuse, difficult and unhealthy family relationships, criminal activity, prior custody and poverty. As a result, inmates often had gone to jail with multiple legal issues (criminal, civil and family), the extent of which they were not necessarily aware. Further, inmates had tended to have made financial, family and living arrangements outside formal legal processes. Having severed or damaged connections with sources of assistance and lacking trust in formal legal processes, some inmates were also reported to be drawn towards more marginal solutions to their issues. Some prisoners saw the most ready course of action to resolve issues as being those outside the law (e.g. informal negotiations), and in some cases, against the law (e.g. violent retribution or 'settling' of a score). The range of options that inmates saw as open to them appeared further limited by their usually depleted financial resources and lack of appropriate documentation.

To successfully address legal issues, it helps for inmates to be motivated, tenacious, articulate, patient, organised and familiar with the law and the relevant legal processes. In contrast, the profile of the prisoners in NSW is characterised by poor literacy, mental health issues, histories of alcohol and other drug misuse and cognitive impairment. Many prisoners have had limited or interrupted education. Periods in custody, separated from society and its processes, only lessen inmates' confidence and skills at being able to function constructively when they return to the community. Without recourse to the necessary skills or support to address legal issues, inmates tended towards maladaptive interpersonal styles.

A particular concern raised in this chapter was the ease with which an inability of a prisoner to comprehend legal information, advice or outcomes could be overlooked. Assumptions can be made about how much a prisoner has learned and understands about the process, from their previous interactions with the law. These assumptions may be wrong, particularly if the inmate did not have the capacity to 'take in' what was going on during those earlier processes. Further, inmates may mask any lack of capacity by bravado or by silence, because they are too embarrassed or overwhelmed to admit that they do not understand the advice or cannot read the information. Difficulties understanding and engaging with lawyers and the legal process also appeared to alienate inmates from using the law in their interests, with some prisoners actively avoiding legal help. Inmates were reported not to use the legal system to redress injustice because, in their experience, it was intimidating, incomprehensible and unlikely to operate in their interests. When compelled to participate, some people did so in a state of ignorance and ensuing anxiety.

While many of the characteristics identified in this chapter — intellectual disability, alcohol and other drug related impairment, passivity, aggression and a tendency to shy away from formal legal processes — are not unique to prisoners, the impact of each of these characteristics on access to justice is exacerbated in a custodial setting. When prisoners are released from jail, their prison time adds another layer to their increasingly complex histories. Inmates return to the community carrying their status as 'ex-prisoners', with attitudes, demeanour and skills that undermine their chances of surviving in the mainstream world.



Ch 7. Systemic Environment


As outlined in the Chapter 6, prisoners arrive in prison with a range of characteristics and experiences which affect their own personal capacity to access justice. This chapter focuses on how the capacity of an inmate to access justice is affected by the formal systems with which they come into contact as a consequence of being in prison and having legal needs. These systems include the legal system (legal services, courts and tribunals), the custodial system (prison and parole services) and bureaucratic systems (government departments such as Centrelink, DOH and the DIAC). In this report we refer to all these systems collectively as the 'systemic environment'. While there are other systems that prisoners are likely to come into contact, the systems highlighted above are the ones most commonly referred to by our interviewees.

Chapter 5 describes the ways in which prisoners access legal information and assistance and participate in legal processes. However, interviews for this study suggest that there are a number of features of these systems, which in practice may undermine inmates' access to legal help and participate in legal processes. Broadly speaking, our analysis indicated that barriers arise from:


Before describing the impact of systemic resources and processes on inmate ability to obtain legal assistance, we will briefly review the systems in place to facilitate inmates' access to justice.

Systems in place to access justice

As discussed at the outset of this report, DCS aims to 'manage offenders in a safe, secure and humane manner'.42 Complex systems are in place to achieve these aims including: prison security, protection and segregation facilities, and the classification system, which classifies inmates according to their security risk and 'developmental needs'.

DCS also has systems and resources that address the welfare needs of inmates, including those that may help with the resolution of legal problems. In brief, those that facilitate (although are not dedicated to) access to legal information and assistance include: prison libraries; the 'visits' system; the telephone system; and, education and training. Prison staff, although not strictly a 'system', is also part of the wider systemic environment that supports the welfare needs of inmates, including their legal needs. Further details of these systems are contained in Chapter 5.

Legal services intersect with custodial systems in the provision of legal advice services in prisons and at courts (e.g. Legal Aid, the ALS and private lawyers). Prison inmates also contend with the legal system (various courts and tribunals) and bureaucratic systems (including the SDRO, Centrelink and DIAC) in order to resolve their legal problems.

Systemic resources

As summarised above, formal legal information and advice services are made available to prisoner inmates. However, our analysis suggests that these limited resources are strained and accordingly undermined by the high demand placed upon them. The following section examines how the ability of inmates to access legal information, contact their lawyer or participate in a legal process may be constrained by limits on the resourcing of:


Legal services

Both Legal Aid and the ALS are important providers of legal advice and representation to NSW prisoners. Our interviews indicated, however, that the demand placed on Legal Aid and ALS lawyers both at court and when they visited prisons often outweighed their capacity to meet this demand.

PLS visiting legal advice service

Once in custody at a remand or sentenced jail, inmates may access the PLS (Prisoners Legal Service) legal advice service provided in all prisons.43 The ALS also runs regular field officer advice and support services to Aboriginal prison inmates.44 Many interviewees for this study commented on the high number of inmates that lawyers from both Legal Aid and the ALS would typically have to see. Often this meant that the time available for each inmate was brief:

— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

It was also reported that even when an inmate had put down their name for an appointment to see the Legal Aid solicitor or ALS field officer, they were not always able to see them on the day they attended the prison because of the large number of inmates booked to see a lawyer:
— DCS welfare officers, urban prison
— Liz, female remandee, maximum security, 25–34 years, Aboriginal, urban prison

Even when an appointment is kept, some inmates felt that they did not have enough time to fully explain to the lawyer their case. Further, as suggested by the following quote, in the rush to impart information quickly, some inmates reported forgetting to tell the lawyer all the facts relevant to their case:
— Luke, male remandee, medium security, 25–34 years, Aboriginal, urban prison

As raised in Chapter 6, the limited time available to see lawyers particularly affects those inmates who, through disability or impairment, may have trouble communicating succinctly and effectively with their lawyer.

With high caseloads, opportunities for lawyers to address inmate's legal needs beyond their criminal matters, such as to answer a question about a debt problem were also reduced. As one solicitor commented:

— Legal Aid solicitor

Some interviewees also noted that the advice service could not always assist with civil or family matters, if those issues were outside the expertise of the attending criminal lawyer. As one stakeholder explained, however, the complexity of different areas of law makes it difficult for those staffing the visiting legal advice service to be able to cover all areas of law to the depth required by the legal problems faced by the inmates:
— Financial counsellor

Inmates can also use the advice session with a Legal Aid solicitor in prison to arrange for Legal Aid representation when they go to court. However, in some circumstances, as the following quotes indicate, inmates reported that they were not always able to see a representative from Legal Aid before they attended court:
— Jason, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Inmates felt that by not getting to see their legal representative, or only seeing them for a short period of time, their cases were not given the best possible chance:
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

The regularity of the legal advice service was also raised as an issue. Workers at a regional correctional centre reported that local solicitors providing the legal advice service on Legal Aid's behalf at that particular prison did not always attend when expected and that, periodically, there were significant lapses between the times they did attend. One DCS worker speculated:
— Non-custodial staff manager, rural prison

As this quote would suggest, prolonged periods between legal advice clinics only exacerbates the demand on lawyers' time when they do finally attend the prison. It should be noted that these issues are not necessarily particular to visits to NSW prisons. Similar concerns were voiced in a 2004 study of Legal Aid services in to women prisoners in Queensland (de Simone & d'Aquino, 2004, p. 5). Consequently, the shortage of legal resources in terms of lawyers with the PLS does impact upon inmates' ability to obtain comprehensive and timely legal advice.

Legal Aid: rural areas

Inmates are able to obtain a grant of Legal Aid to secure representation from a private lawyer or from a Legal Aid solicitor. However, our interviews suggested that limited numbers of solicitors were available to conduct Legal Aid work for inmates in regional correctional centres. This is illustrated by the following quote:

— DCS welfare officers, urban prison

One factor limiting the availability of lawyers in rural and regional areas is the potential for conflict of interest issues, for instance, when the lawyer is already representing another party in the case and no other lawyers are available. An ex-prisoner living in a regional and rural area of NSW said:
— Barney, male ex-prisoner, 35+ years, non-Aboriginal, rural area

The view was also expressed that, with fewer lawyers in rural areas, the range of expertise available was also narrower:
— Chaplain, correctional centre

Limits on the funding of Legal Aid services and ALS, and the corresponding difficulties in meeting the demand for their services, was acknowledged by the Senate Legal and Constitutional References Committee 2004 inquiry into Legal aid and access to justice (pp. 4–8, 76). Submissions to the inquiry also suggested that legal aid services are 'spread too thinly' in rural and regional areas and that people living in such areas are 'disproportionately disadvantaged by gaps in the legal aid funding scheme' (Senate Legal and Constitutional References Committee, 2004, pp. 114–115).

Legal Aid: duty lawyers at court

As alluded to above, an inmate may not get to speak to a lawyer or ALS before appearing in court. Consequently, the first lawyer they may get to speak to is the Legal Aid duty solicitor45 who is at the court on the day of their hearing (e.g. for their bail hearing or concerning the matters for which they are being incarcerated). Our interviews suggest that, as with the PLS in prison, the high demand for the services of the duty lawyers at court has impacted on the amount of time they have to provide advice to clients before their matter was heard. Typical of the many comments made to this effect was:

— Barney, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Further, there can be little confidentiality under circumstances where there is such a press of demand:
— Dan, male sentenced prisoner, 35+ years, Aboriginal, rural prison

Consequently, while systems are in place for Legal Aid to provide legal advice and assistance to prisoners, our research suggests that the capacity of these services to provide the range and depth of legal assistance required by some inmates is restricted by limited available resources.46 In particular, inmates felt they needed advice beyond that pertaining to criminal law and that they needed more time and privacy with their legal advisers in order to engage fully with the process of resolving their legal issues. Yet the number of prisoners seeking advice has far outweighed the number of lawyers available. In our research, Legal Aid emerged as a key resource upon which many inmates relied, but one apparently stretched well beyond its capacity.

Legal assistance on civil matters

A final area that arose in our interviews in relation to legal service resources was an apparent imbalance in the availability and integration of legal assistance for civil matters and those for criminal charges. It is clear from the descriptions given in previous chapters that prisons, as an integral part of the criminal justice system, have a range of mechanisms that serve the resolution of inmates' criminal matters. However, in the case of civil matters it appears that access to assistance and the ability to participate in legal processes is more difficult from prison. One reason for this is an apparent lack of ready access to legal advice on civil issues:

— Solicitor, IDRS and CJSN
— Manager, ALS
— Financial counsellor

At the time of writing, there were a small number of strategies to assist inmates with civil legal matters, such as the civil law pilot project provided to female prisoners by Legal Aid. There are also strategies to prevent civil law matters from getting out of hand (e.g. the automatic notification to Centrelink when people are received into prison which stops inmates receiving welfare payments for which they are no longer eligible). However, the general impression from the data collected for the current project was that civil matters had less priority in terms of resources.
— Welfare officer, urban prison

A second barrier in terms of resources to help with the resolution of civil matters is the lack of support for prisoners to participate in the legal processes designed to resolve the matters. For example, while inmates are routinely taken to court for their criminal hearings, hearings for civil or family matters are not so readily accessible from prison:
— Legal Aid solicitor
— Malcolm, male parolee, 35+ years, non-Aboriginal, urban area

As one interviewee explained, this may effectively translate to a blocking of access to justice as time limits expire and the chances of finding supporting evidence dwindle:
— Financial counsellor

In Chapter 6 we described how inmates tended to focus on their criminal matters over their civil matters. It would seem that the systemic environment also provides less opportunity for prisoners to address their civil matters, particularly in terms of access to legal advice and participation in the legal processes.

DCS staff

DCS custodial and welfare staff play a central role in assisting inmates when they have a legal problem. For a detailed discussion concerning this role, see Chapter 8. As well as taking on case management roles with inmates, custodial officers carry out a variety of administrative functions, all of which facilitate inmates' access to legal assistance. These functions include processing mail, escorting inmates to legal interviews, providing inmates with forms and information about appealing, and writing their names down in appointment books for legal interviews.

Each government-run prison has one or more welfare officers who provide assistance with personal issues, such as child access, housing, debt management and advocacy on behalf of the inmate. Welfare officers also perform a range of other tasks including assisting inmates with forms, explaining documents and processes, facilitating telephone calls with lawyers and liaising between the inmate and government departments on matters associated with their legal issues.

However, interviews for this study suggested that the capacity of officers to perform these tasks can be undermined by available resources not always matching the high demand. Our analysis identified a number of features of staff roles that affected inmates' pursuit of legal assistance, primarily concerning staff shortages for both custodial and welfare staff.

Custodial staff shortages

Staff shortages were an issue raised by prisoners and stakeholders when identifying the barriers for prisoners to access assistance with their legal problems. There appeared to be two major implications of DCS staff shortages for inmates needing assistance with legal problems: increased lockdowns and the reallocation of staff.

Lockdown

Lockdowns (including locking inmates in their cells overnight) are part of the daily routine of NSW correctional centres. However, if staff shortages are sufficiently severe, the prison may be put into lockdown (over and above regular lockdowns). Inmates are then restricted in their movement around the prison and are effectively prohibited from leaving their cells until the lockdown ceases.

— Custodial staff member, urban prison

Although correctional centres are encouraged to allow legal representatives access to their clients during lockdown, legal visits are only allowed on a limited basis and are at the discretion of the General Manager (NSW DCS, 2006c, s. 15.11.6).

In 2004 DCS introduced a program of correctional workplace reform called The Way Forward which aimed 'to achieve safe and effective correctional centre management and substantially improve operational cost efficiency' (NSW DCS, 2004b, p. 2; also NSW DCS, 2004c). Changes to staffing arrangements were a key aspect of this policy. There was some suggestion in our interviews that aspects of the new staffing arrangements reduced visiting hours, for legal visits:

— Official Visitors, urban prison

Accordingly, lockdown may occur because there may be insufficient staff to cover all of the various operational tasks of a prison. This may impact on inmates meeting their legal needs as they cannot attend the prison library, make telephone calls, and, at times, not be able to meet with their legal representatives during lockdown.

Reallocation of staff

Staff shortages also appeared to result in prisons having to reallocate staff from one task to another. In the main, officers were 'stripped' from certain administrative positions to fill key security positions when staff shortages occurred. In our study, examples were given of positions being stripped from functions such as the mail room, officers who place numbers on prisoners' phone cards and library escorts, which in turn affected inmates' access to justice. For example, the stripping of the mail sorting position delayed the delivery of mail to inmates, including legal correspondence:

— Jane, female remandee, minimum security, 35+ years, non-Aboriginal, urban prison

In this interviewee's experience, the practice of stripping positions had resulted in some inmates not receiving essential documents before going to court.

Custodial officers are also responsible for confirming lawyers' telephone numbers, in order that inmates can call their solicitors.47 This second example describes the impact of officers being reallocated from the position, which processes numbers onto phone cards:

— DCS welfare officer, urban prison

During the period whilst inmates are waiting for their telephone contacts to be approved, they cannot directly telephone their lawyer. Rather, they have to seek an appointment with the welfare officer to make a call from their office, and, as is argued below and in Chapter 8, appointments with welfare officers are also often delayed because they are a resource that is also in great demand.

When there was a shortage of staff, positions that enable the prison library to be open may similarly be reallocated:

— DCS library staff

Legal interviews themselves may also be forgone because an officer is stripped from escort duties for higher security inmates:
— Official Visitor, urban prison

Our interviews clearly show that inmates often depend upon the assistance of custodial officers to arrange or facilitate their access to legal information or assistance. However, as argued above, staff shortages in one area of operations can entail staff being reallocated away from administrative positions that underpin inmates' access to legal assistance and/or information. The following quote illustrates how the prioritisation in resourcing may occur:
— Custodial officer, rural prison

Consequently, in a contest for staff resources, there is a privileging of certain types of tasks, whereby those relating to legal assistance are relegated as less important than those relating to safety and security. Consequently, in the context of staff shortages, addressing inmates' legal needs may be postponed or remain unmet.

Shortage of welfare officers

As will be described in Chapter 8, welfare staff provides a key link to government and legal services. However, our research has suggested that, in most jails, the number of welfare officers available does not meet the demand for their services. Unfortunately, it is not possible to formally examine the ratio of welfare staff to inmates as annual statistics are given only for all operational staff, including court correctional officers. However, as the data given here and in Chapter 8 suggest, welfare officers are often extremely busy and consequently inmates may not be able to access them in a timely fashion. The challenge this presents was described by DCS staff and inmates:

— Non-custodial staff member, urban prison
— Jane, female remandee, minimum security, 35+ years, non-Aboriginal, urban prison

Given the pivotal role that welfare officers play in linking inmates with people and services to help address their legal needs (as detailed in Chapter 8), their scarcity can have significant consequences for inmates seeking assistance:
— Aaron, male sentenced prisoner, minimum security, 35+ years, non-Aboriginal, urban prison
— Neal, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

As the role of custodial officers has been broadened under The Way Forward policy to include more responsibility for the care and case management of offenders, the possible implications of the dual role of custodial officers in terms of facilitating inmates' access to justice are further considered in Chapters 8 and 9.

Consequences

It appears from the data given above, when a shortage of custodial staff occurs, that positions which facilitate access to legal assistance and support are among the first to be compromised. Specifically, tasks that may impact on the pathways inmates use to address their legal needs, such as processing lawyers' numbers onto phone cards, or processing mail (including legal mail) may be stripped of their human resources and reallocated to security functions. When staff shortages become critical, the whole centre may be locked down, further restricting the capacity of inmates to engage with the outside world. In addition, our interviews suggested that, in many jails, welfare officers are in short supply and consequently challenged in their capacity to assist all their inmate clients.

DCS facilities

There is a range of facilities in correctional centres that inmates can use to access legal information and advice. These include electronic equipment such as computers and video players, the library and the prison telephone system. Our interviewees suggested that significant shortages of these facilities impacts on inmates' access to justice.

Computers, electronic equipment and libraries

Prisons have education departments that in addition to running courses for inmates also have computers (but no internet connection) available for use by prisoners for educational and legal information purposes. For example, inmates can use computers in the Education unit to read briefs which are sent to them on CD-ROM. However, interviews for this study suggest that there is a significant shortage of working computers in these Education units.

— Spokesperson, Justice Action

As a result, inmates reported being unable to access their briefs on CD-ROM, hindering their preparation for their case. It was also suggested that shortages in available computers affected the professional use of computers by welfare and library staff, particularly when they agreed to allow inmates to use their computers.
— DCS library staff

In another example of how processes to assist inmates can be compromised by limited resources, a DCS staff member reported that new inmates in one jail were not able to watch an induction video48 because the video recorder had been broken for four months.

Interviews with inmates and DCS workers from different prisons also suggested that the legal materials in many of the prison libraries were often very limited, outdated, or not available because they have gone missing:49

— Custodial officer, urban prison
— Jack, male remandee, age unknown, non-Aboriginal, urban prison

The formal provision of information resources in the form of library materials were seen to be, at the time our data were collected, inadequate at some prisons. However, since our interviews were completed, DCS has funded LIAC (the State Library of NSW's Legal Information Access Centre) to expand its coverage to include all correctional centre libraries in NSW. This means that each prison should now have a complete set of LIAC materials which consist of plain language legal information on a wide range of criminal, civil and family law issues.50 Further, inmate clerks were being trained to assist people to find legal information, although they do not provide legal advice.

Internet access

Prisons are designed to be keep inmates largely separated from the outside world. Walls, fences and surveillance provide the physical barriers while bans on mobile phones and access to the internet present another layer of security. The DCS standard operating procedures stipulate that computers used by inmates 'must not contain, be connected to, or have the facility to be connected to any internal or external communications device (i.e. modems, modem card or modem chip)' (NSW DCS, 2006c, s. 5.4.1.1(c)). In practice, this means that there is no internet connection to any computers within the parts of the jails accessible by inmates, including those computers used by welfare and education staff. Accordingly, neither inmates nor the DCS workers who may be assisting them to find legal information can access the web from within the jails:

— DCS library staff

Legal Aid solicitors (and other services) are allowed to bring laptops into prisons for instance, to playback electronic evidence to the client (PLS solicitor, personal communication) although they are not allowed to use these computers to access the internet from within prison. Lawyers reported the frustration of not being able to search for information online when they visit an inmate in prison:
— Legal Aid solicitor

Consequently, the internet, an important source of information in the general community, is an avenue that is closed to inmates on the grounds of security. This is not to judge the appropriateness or otherwise of such a form of regulation, but rather, to note how being in prison limits the pathways by which people can access legal information and help.

Telephones

The availability of telephones to maintain both social and legal connections is a key issue for inmates. Each correctional centre has a certain number of telephones for inmates available at set times throughout the day.51 Some inmates and workers reported that there were often such large numbers of inmates trying to access the telephones during those times that, as a result, it was difficult for them to make a call when they wanted or needed to:

— Custodial officer, urban prison

The issue of the number of telephones, however, must be looked at in the context of the procedures by which their use is governed. Although our interviewees talked of inmates needing to make a call outnumbering the telephones available, this issue may, at least in part, be an artefact of other systemic features, such as lockdown and prisoner classification. The impact of these features will be discussed in detail later in this chapter.

Courses

Another resource that may affect inmates' access to justice is the provision of educational courses and training within prisons. A few inmates from a rural prison reported missing out on the opportunity to undertake certain courses due to limited places:

— Custodial officer, rural prison

This in turn impacted upon inmates' chances of being released on parole. As stated in Chapter 4, the SPA (State Parole Authority of NSW) takes into account whether there is 'sufficient reason' that the prisoner will be able to adapt to community life (Barry, 2004, p. 190). One way of demonstrating a capacity for going back into the community may be the completion of certain courses, such as anger management. Accordingly, when inmates cannot be accommodated on a course, their chances of being granted parole may be compromised:
— Hugh, male sentenced prisoner on protection, 25–34 years, non-Aboriginal, rural prison

Completing a course that may improve inmates' chances of being granted parole may also be affected by transfers between prisons. An inmate may not be able to commence or continue a course, as not all courses are available at all prisons. Further, there may not even be an available place even if the relevant course is offered:
— Probation and parole unit leader, rural area

Other consequences resulting from transfers within the prison system are discussed in more detail elsewhere in this chapter.

Summary

In addition to the various practical barriers to inmates accessing legal assistance which arise from the nature of imprisonment, formal provision of systemic resources that falls short of the demand placed upon them can further disrupt access to justice for inmates. It is apparent from the data reported here that there are significant resource constraints on both DCS and some public legal services, which in turn affect the capacity of inmates to access legal information and legal assistance from within prison.

Our interviewees identified staffing levels and facilities as systemic resources where demand outstripped supply. For example, the capacity of welfare officers is stretched by the sheer volume and complex needs of their inmate clients. Similarly, the availability of custodial officers to undertake functions which facilitate inmates' access to justice (e.g. to provide escorts to the library or legal visits, to ensure mail is delivered or that telephone numbers are made accessible to inmates) is sensitive to staff shortages: when staff numbers are low, security functions take precedence and consequently these tasks may be delayed or abandoned.

Our interviewees also indicated that the demand for Legal Aid and ALS services outstripped supply, resulting in less time being available for legal advice to be given to individual inmates both at prison and at court. In some circumstances, inmates were not always able to see a lawyer before they went to court because of such shortages. Further, the demand on the resources of such legal services undermined the perception amongst inmates about the quality and accessibility of these services.

In terms of facilities, a shortage of computers to read CD-ROMs and outdated library facilities at some correctional centres can prevent inmates from accessing legal information. Further, inmates in one particular correctional centre felt that limited places in certain education courses were preventing them from obtaining parole. The lack of access to the internet and a perceived shortage of telephones were also felt to compromise inmates' ability to marshal information for their legal matters and communicate effectively with their legal advisers (inter alia). Consequently, shortfalls in resources that support prison inmates in addressing their legal matters within the broader systemic environment may act as a hindrance to gaining legal information and assistance, and effectively participating in the legal process.

Systemic processes

The discussion above draws attention to aspects of the broader systemic environment where there is an apparent shortfall in resources. This shortfall consequently affects prisoners' capacity to address their legal needs. Our analysis also suggests that the processes that operate within the systemic environment also shape the success or otherwise of inmates' access to justice. The processes most commonly mentioned by interviewees in this study are grouped under the following headings:


Telephone use

In the previous section, the issue of the availability of telephones was raised. It would seem that in the opinion of some interviewees, availability was a matter of numbers — too few telephones for too many inmates. Whether it is only, partly or even at all, sheer physical numbers of telephones should be weighed against how the telephones that are there are accessed. Interviewees for this study highlighted a number of other aspects of the prison telephone system and its use that impact on their role in inmates' pursuit of assistance with their legal problems. These were:


Time restrictions and privacy

Time restrictions operate on the length of calls that can be made by inmates. Male inmates receive 10 minutes for legal telephone calls and six minutes for personal telephone calls and female inmates receive 15 minutes for legal telephone calls and ten minutes for personal calls. The purpose of placing time restrictions is to make the telephone system more accessible to all inmates:

— Custodial manager, rural prison

However, inmate interviewees for this study described feeling that they did not have sufficient time to discuss often complex and serious matters over the telephone with their lawyers. Inmates reported the frustration of having to 'go to the back of the line' once their call time had expired, and wait until all the other inmates in the line had used the telephone before they could complete their call. For example, Luke said:
— Luke, male remandee, medium security, 25–34 years, Aboriginal, urban prison

Concerns were also raised regarding the privacy of legal discussions made on the telephones located in the prison yard or the pods (wings):
— Custodial manager, rural prison
— DCS welfare officers, urban prison

A final issue regarding the system governing the use of telephones was their practical availability. The following quote clearly demonstrates a conflict between the routines that some inmates must follow and the access hours for the telephones making them a scarce commodity:
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Direct telephone contact with lawyers

Another challenge for inmates seeking to consult with their lawyers by telephone raised in our study was that an inmate may have to go through switchboards, receptionists or automated telephone systems before being put onto the person who can assist them. This further curtails the already limited time available to inmates:

— Jack, male remandee, medium security, age unknown, non-Aboriginal, urban prison
— Throughcare officer, rural prison

The above quotes highlight the potential problems inmates might have in utilising telephone based legal services, a significant issue in light of the recent initiative in NSW prisons to have the LawAccess telephone number put on prisoners' phone cards. That is, even though inmates are able to telephone LawAccess from prison, the advice they can receive may be limited by the restricted time they can speak for. Recognising this potential problem, the LawAccess representatives interviewed for this study indicated that their staff are trained to directly transfer inmate calls to a solicitor:
— LawAccess

In the absence of being able to directly contact lawyers, inmates have the option of leaving a message. However, as inmates can make outbound calls but cannot receive calls, a lawyer is unable to call them back in prison:
— Karla, female remandee, minimum security, 25–34 years, NESB, urban prison

These issues are consistent with difficulties raised regarding Queensland jails (de Simone & d'Aquino, 2004, pp. 5, 64). Apparently, there is some scope for calls to be returned when a prior arrangement is made through the welfare officer. However, even prison staff may face difficulties in contacting lawyers on behalf of inmates, for example, when confirmation is sought for placing a lawyer's number on an inmate's phone card:
— Custodial officer, rural prison

As a result, the organisation of both prison and legal advisers' telephone systems may not always fit well with the needs and/or circumstances of prison inmates.

Telephone contact with government and other agencies

Telephone contact with government departments also brought with it, according to our interviews, its own set of issues. Our data indicated that inmates had complications telephoning departments such as Centrelink, the DOH, DIAC and SDRO to address outstanding legal problems. To begin with, some inmates reported difficulties putting certain departmental numbers on their phone cards:

— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area

Further, with limited numbers of contacts being permitted on phone cards, some inmates were unwilling to forgo a place on their card for an organisation they may only speak to once. Similar attitudes were reported in a UK study of remand prisoners, who even considered putting lawyers on their phone cards as 'wasteful' (Brookman et al., 2001, p. 198).

Interviewees also highlighted how the time restrictions on telephone use in prisons clashed with the 'waiting on hold' call centre system adopted by government departments:

— Caseworkers, Welfare Rights Centre

Difficulties accessing these agencies can result in inmates relying on third parties to assist them to resolve these issues, which itself can conflict with the privacy policies of departments:
— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area Strategies to improve telephone access

Interviewees in our study suggested a number of strategies that may enhance telephone access to solicitors. One suggestion was to make direct contact with a solicitor via a mobile phone:
— Penny, female remandee on protection, 25–34 years, non-Aboriginal, urban prison
— Terry, male parolee, <25 years, Aboriginal, urban area

However, due to the higher call costs of ringing a mobile phone, convicted prisoners who have to pay their own legal calls, may not be able to afford this option.

A number of lawyers we interviewed said that they took account of the limited time inmates had to speak with them, by taking their calls as directly as possible and by getting 'straight to the point' (Community Referral Scheme, Law Society; LawAccess). To facilitate a quicker response to prisoners' calls, all telephone calls made by prison inmates should be announced to the recipient by the prison telephone system before the prisoner is put through. Such a facility cues the legal or other service to the fact that the caller is an inmate and consequently has a very limited amount of time to spend on the call.

The capacity for lawyers to routinely receive messages and return calls to their clients in prison was raised by both stakeholders and inmates as a potential strategy to increase inmate access to legal advice:

— LawAccess
— Abdul, male sentenced prisoner, minimum security, 25–34 years, NESB, urban prison

From our interviews, it is clear that telephones are a key link between prisoners and legal assistance located outside of jail. The restrictions, however, accompanying the prison telephone system may conflict with the types of telephone based services currently offered, resulting in very real barriers to inmates using these services. Communication with lawyers and other services by telephone seems to pivot on a number of issues. For one thing, time limits imposed on calls from inmates often do not allow sufficient opportunity for inmates to convey the details of their problem or for the service provider to give advice. This situation may be further exacerbated by the routing of calls through a receptionist, a call centre or an automated system. Together with the lack of privacy to make a telephone call, the outcome may be that the legal problem may go unresolved.

Classification, segregation and access to legal help

The primary purpose of prisoner classification is to maintain the security of the prison (Crimes (Administration of Sentences)(Correctional Centre Routine) Regulation 1995 (NSW), clause 10). An inmate's classification reflects their risk of escape, whether they are a danger to other inmates and staff or whether they are at risk of harm from other inmates. Accordingly, consistent with their higher security rating, medium and maximum security inmates have greater restrictions on their movement within correctional centres compared with inmates classified as minimum security. Inmates and DCS workers in this study provided examples of how these restrictions can affect access to justice on a day-to-day basis. In maximum security correctional centres, inmates have to be escorted by custodial officers when they move around the prison grounds and are locked in their cells for longer periods during the day. As one inmate noted:

— Matthew, male parolee, 25–34 years, non-Aboriginal, rural area

Restrictions on movement associated with classification makes it harder for maximum security inmates to access information from the library, get legal advice via the telephone and obtain assistance from welfare:
— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Other categories of inmates, who face restrictions on their movement within prison, include inmates who are on protection, or inmates who have been segregated from the main population of the prison. Because segregated inmates are prohibited from being in contact with other inmates, they reside in their cells for the majority of the day. This may make access to legal assistance at the very least difficult or, according to one mate, non-existent:
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

Under 'Segregated custody procedures' in the NSW DCS Operations Procedures Manual, prison officials, in addition to allowing visits to segregated inmates, are supposed to:
A prison chaplain and several welfare officers within prisons indicated that they accessed inmates on higher classifications or inmates who were on protection or segregation by actually visiting the inmate in their cell or wing:
— Chaplain, correctional centre

However, one welfare officer described some of the difficulties they had experienced in accessing 'high risk' inmates and inmates on segregation:
— Non-custodial staff member, urban prison

Inmates identified as 'at risk' may be held in protective custody and separated from the main population for up to 23 hours a day, and consequently, their ability to access legal and other assistance may be further limited:
— Carlos, male sentenced prisoner on protection, 35+ years, NESB, rural prison

One stakeholder argued that inmates with intellectual disabilities may be disproportionately affected because of the tendency to place them in protection for their own safety:
— Worker, CJSN

Accordingly, whilst categories of classification (including protection and segregation orders) maintain security within prison, they may further restrict the access of affected inmates to legal information, legal advice and assistance with legal problems. In addition to classification, the phase of incarceration which the inmate is in may also affect their degree of isolation from assistance with their legal problems.

Remand: post-arrest pre-reception

Two features define the early period of remand. The first is the fact that all remandees have criminal matters pending along with often acute civil issues relating to their sudden incarceration, including family law issues, particularly the placement of and access to children. The second is that, generally speaking, new remandees face more restrictions on their liberties than other prisoners, and that their access to legal help is correspondingly reduced. The interplay of these two factors and their consequences for access to justice are discussed below.

As noted in Chapter 5, when a person is first arrested, they may be detained in, and moved between, the cells at a police station, the cells at a police/court cell complex staffed by DCS (such as Surry Hills or Parramatta), and in the holding cells at court. A number of interviewees reported that inmates found it particularly difficult to contact a lawyer by telephone from the police or court cells, prior to going to court. Difficulties associated with contacting a lawyer at this stage of incarceration were stressed as a key concern to a number of inmates. Having consulted with other inmates prior to her interview with the research team, Noeline, a longer term inmate said:

— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Indeed, whilst placed in a police or court cell, prisoners may not use the telephone except under the following circumstances: to assist the officer in organising sureties for bail; for crisis or welfare purposes; and, for inmates who have been held in the complex for a prolonged period of time (NSWDCS, 2006c, s. 3.2.1.7). Further, even if inmates are granted access to a telephone for legal advice, any advice may be limited by a lack of privacy in the police cells. For instance, LawAccess commented that when they speak to someone in police custody, they do not ask for too many details from the caller, because of concern that they may be overheard by a police officer who is close by.

Compounding these issues are the large numbers of inmates being held in police cells, whilst they await space in the remand centres. According to a DCS manager responsible for reception screening and induction at one prison, offenders should not be kept in court or police cells for more than 72 hours. However, it appears that, due to increasing prison population and corresponding overcrowding in the prison system generally (see the data provided in Chapter 2), offenders are staying in police cells for much longer periods beyond this limit:

— Non-custodial staff manager, urban prison

Consequently, inmates may be held for prolonged periods in conditions where they are less likely to be able to access legal assistance by telephone or in person at a critical time in their matter:
— Chris, male ex-prisoner, 35+ years, Aboriginal, urban area

The concerns raised by our interviewees about access to justice in the cells also echo those raised by the Victorian Ombudsman in a 2006 review of the conditions of police custody in Victoria. The Ombudsman reported concerns about limited access to visits and telephones, inconsistencies between watch houses in regard to prisoner access and communication, lack of privacy for legal and other visits, overcrowding and the length of time people were staying in police custody (Ombudsman Victoria and Office of Police Integrity, 2006, p. 8).

Remand: reception

Inmates to be held on remand are transported to a correctional centre with a remand facility and detained in the reception unit of the prison until they are classified. A major task for DCS at this early stage of incarceration is to undertake a risk assessment of new inmates, particularly in relation to their mental and physical health. Inmates are interviewed by a nurse to ascertain any health needs and by Inmate Development Services staff to ascertain any immediate crisis. New inmates are kept separately from the rest of the prison population until they sit before the case management team, which determines their classification. Interviewees for this study suggested that this isolation from the rest of the prison effectively prevents inmates from accessing legal information and legal advice. One inmate described the experience of first arriving at a remand centre:

— Noeline, female sentenced prisoner, age unknown, non-Aboriginal, urban prison

Another example was provided by an inmate who had been held on remand in a regional correctional centre:
— Barney, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Our interviewees also suggested that remandees are frequently moved between police cells and correctional centres during the early stages of their incarceration. This reportedly makes it difficult for them to access legal assistance from outside a prison (but within custody) whilst they are being transferred from one centre to another:
— Justin, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

A detailed discussion of the impact of movement on inmates' capacity to access legal assistance is discussed in further detail in the following section.

Finally, the difficulties raised above are not confined with inmates trying to deal with their criminal matter. As discussed in Chapter 4, the sudden interruption of incarceration can generate specific civil and family law issues, particularly in relation to child custody, housing and employment/business matters. For example, one remandee reported the difficulties he had in contacting his workplace when he was arrested to inform them he was in prison:

— Justin, male remandee, minimum security, 25–34 years, non-Aboriginal, urban prison

At this stage, inmates do not have phone cards and consequently have limited options in terms of telephone calls, as one welfare office at a remand centre notes:
— Welfare officer, urban prison

These observations resonate with overseas research which noted that contact with lawyers is one of the most pressing needs of people on remand but also one of the areas most likely to be affected by incarceration (Brookman & Pierpiont, 2003; Scottish Executive, 2000, para. 4.1).

As inmates move into the main remand jails or wings, some of the initial difficulties they faced in accessing legal help improve. Once in the main population, inmates can receive visits from their lawyers, access welfare and education officers and, once set up, have use of their phone cards. However one practice that our interviewees suggest continues to affect inmates access to justice, is the frequent movement of inmates from jail to jail and wing to wing within the prison system.

Movement of inmates

In this study inmates were reported to be regularly moved around in the correctional system: within centres, from prison to prison, and between prisons and the police or court cells. It became apparent that the constant movement of inmates inevitably impacted on the provision of programs and services to inmates, whether it was legal help, education or health services. Indeed Justice Health reported that:


Inmates may be moved to another correctional centre for a range of purposes including: to attend court, funerals, medical appointments, police interviews, classification or for non-routine reasons, such as the closure of a centre, the need to increase the inmate population of a centre, a change to the security mix of the inmate population or to the overall limit of the inmate population, or any other reason specified by DCS (Barry, 2004, p. 901). Inmates may also be moved for security and inmate management purposes, for example, in order not to be able to associate with certain other inmates (e.g. members of their own or rival gangs). Inmates can be transferred against their wishes, and do not necessarily have any input as to where they are moved: that decision will depend on their classification and where beds are available (Barry, 2004, p. 901). Interviews for this study suggested that the process of moving an inmate from place to place impairs the capacity of inmates to keep in contact with their lawyers and to participate effectively in the criminal law processes. The following discussion centres on three main issues regarding inmate movement: transfers between prisons, transit from jail to court and the reduction of movement through the use of AVL.

Transfers between prisons

— Legal Aid solicitor

Being moved from prison to prison not only makes it difficult for lawyers to locate and stay in contact with their clients, but means that in each new centre, the inmate must re-establish systems for staying in contact with the outside world. For example, as described in detail in Chapter 5, when an inmate comes to a correctional centre, custodial officers must validate their legal and personal telephone contact numbers before they put them on their phone card. As previously discussed, this process can be lengthy and may prolong the period in which inmates do not have access to the telephone, and in turn, their lawyer. Clearly, moving prisons means that this delay is even further exacerbated. As one welfare officer observed:
— DCS welfare officer, urban prison

Movement from one prison to another can also slow down inmates receiving post, including letters from their lawyer or other correspondence relating to legal matters. This is illustrated by the following quote:
— DCS welfare officer, urban prison

The movement of prisoners around the system also reportedly makes it difficult for their solicitor to visit them in prison, especially as inmates often receive only short notice of a transfer:
— Custodial officer, urban prison

In some cases, inmates reported not seeing their lawyer in person until they arrived at court for a hearing because they had moved away from where their representative could visit them:
— Langdon, male sentenced inmate, maximum security, 35+ years, Aboriginal, urban prison

A study conducted by the Scottish Executive (see Chapter 2) also reported that lawyers faced problems accessing clients in prison due to incorrect information about the location of prisoners who had been moved, and difficulties in getting to prisons in isolated areas (Scottish Executive, 2000, para. 4.4).

Finally, the movement of prisoners to remote locations adds to their expenses in contacting their legal advisers. Whilst remand inmates can make calls to private or Legal Aid solicitors at DCS's expense, convicted prisoners must pay for their own calls to private lawyers and to many of the service agencies and departments:

— Carlos, male sentenced prisoner on protection, 35+ years, NESB, rural prison

Given the discussion in the previous chapter about the financial difficulties commonly experienced by inmates, these circumstances may present a very real barrier for inmates in obtaining legal assistance (see Chapter 6).

Transit from prison to court

A second facet of inmate movement is the travel from jail to court. Inmates may need to attend court directly from their prison, or may be transported in a prison truck to the prison closest to the court they are going to so that they can attend court from there. Our interviewees spoke strongly about inmates' dislike for travelling conditions in the trucks:

— Tony, male sentenced prisoner, minimum security, 24–36 years, NESB, urban prison
— Non-custodial staff member, urban prison

In addition to travelling in the much-maligned trucks, moving to another prison for the purposes of attending court, according to our interviewees, causes great disruption as this inmate explained:
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

A few interviewees reported instances of inmates who pleaded guilty to avoid having to travel back and forth to court for a trial. For example,
— Ricky, male sentenced inmate, maximum security, 25–34 years, non-Aboriginal, urban prison
— Jason, male ex-prisoner, 35+ years, non-Aboriginal, rural area

Accordingly, when attending court is deemed to be so arduous that some inmates appear to actively avoid or minimise the amount of time they spend in transit, this affects their effective participation in the criminal legal process and, at times, their legal outcomes.

Reduction in movement through the use of AVL

Several interviewees suggested that AVL may be an effective way of addressing the impact of court attendance and transfers between prisons. The Legal Aid Commission uses audio visual conferencing to communicate with clients. In 2004/2005, 15 Legal Aid offices had audio visual facilities and AVL was used 3 691 times to communicate with clients (Legal Aid NSW, 2006c, p. 43). One DCS worker we interviewed argued that:

— DCS policy officer, head office

A number of interviewees also suggested that inmates preferred using AVL instead of having to travel long distances to attend court.52 This is typified by the following quote from an inmate:
— Charlie, male sentenced prisoner, medium security, 35+ years, non-Aboriginal, rural prison

Some concerns raised in this study about the use of AVL are discussed in Chapter 6. However, many inmates commented that the system was preferable to travelling in the prison trucks or having to transfer to another prison to attend court — to the extent that some inmates reported pleading guilty just to avoid being moved. In these circumstances court appearances through AVL would give inmates a better chance at participating in the legal process without significant disruption.

Lockdown

A final systemic process that impacted on inmates' access to legal information and assistance according to our research was lockdown. Lockdown was discussed earlier in this chapter as a result of staff shortages. However, lockdown is also part of the daily routine of prisons and consequently its impact can be independent of any staffing problems.

The hours prisoners are allowed out of their cells vary from prison to prison, and between parts of prisons, depending upon the classification of the prison or wing. For example, at one maximum security prison inmates are let out of their cells at 8.30am, returning for an hour between midday and 1pm. They are then let out again until 3.30pm, at which time they are locked in their cells for the night (DCS welfare officers, urban prison). This is a fairly standard regime for a maximum security facility. The number of hours spent outside of a cell can be significantly less for those in protective or segregated custody, who remain in their cells other than when allowed out for short periods of exercise or for legal visits (NSW DCS, 2005a, p. 14). The actual numbers of hours inmates with different prisoner classifications spend out of cells are detailed in Chapter 2. Out-of-cell time has declined in NSW since 2000/01, and NSW has the lowest average number of out-of-cells hours for both 'open' and 'secure' custody in the country (SCRGSP, 2007, Table 7A.18). Further, the average number of out-of-cell hours for some inmates is lower than it was at the time of the Nagle report (Nagle, 1978, p. 498). The effect of routine lockdown on legal visits was described by one lawyer:

— Legal Aid solicitor

It was also apparent from our interviews that a disparity exists between the daytime schedule of solicitors and the times that inmates are allowed out of their cell, thereby compromising inmates' capacity to contact their lawyers. In short, lawyers are often at court throughout the period the inmate can make calls. By the time most solicitors are back in their offices and able to converse with clients, the inmates are locked back in their cells where there is no access to telephones:
— DCS welfare officers, urban prison

In lower security correctional centres, inmates are allowed out of their cells for longer periods of time, increasing the likelihood of contacting their legal representative: