Coronavirus is a ticking time bomb for the Australian prison system
Prisons are notorious incubators for infections and the World Health Organization foresees the possibility that every prisoner will be contaminated with Covid-19 “very quickly”. The highly contagious virus has the potential to wreak havoc in the small, contained spaces of prisons, where sanitation is sparse and overcrowding prolific.
In Australia, prisons are already operating at more than 100% capacity and the virus rates are increasing exponentially, so prisoners face a ticking time bomb for widespread outbreaks. The health profile of prisoners also makes them susceptible to some of the most serious and critical effects of the virus.
The cracks in the prison system have begun to emerge. This week Long Bay prison in Sydney went into lockdown when two prison staff tested positive for coronavirus and symptoms manifested among its inmates. There are unconfirmed reports of infections in prisons in a number of other Australian jurisdictions.
From inside our prison walls, stories are emerging of frightened inmates, already suffering ill health and worried that the virus means they are serving a death sentence. These types of fears caused riots and prison escapes in 23 Italian prisons and 12 prisoners died. At least 23 inmates were killed in a prison riot in Columbia.
In light of this emergency situation, urgent measures have been introduced by most Australian states and territories, although without any leadership from the national cabinet charged with coordinating the Covid-19 response. Management plans have been devised across states and territories to promote hygiene and restrict visitors and legal
representatives.
Until this week the international response has been a much swifter recognition that prisons cannot be made safe from infection because they defy the major policy to combat the spread of Covid-19: social (read physical) isolation. The only solution to control the spread of Covid-19 in prisons is to reduce the burden by releasing prisoners. In the US, the UK, Ireland and, in most significant numbers, Iran, prisoners are being released to protect inmates, prison staff and the community from the infection.
On Tuesday New South Wales became the first government in Australia to introduce legislation enabling certain inmates to be released to control the spread of Covid-19 in prisons and beyond. The idea is to take the load off the 14,000-pluspopulation in overcrowded NSW prisons. The legislation grants the corrections commissioner powers to release prisoners who are within a prescribed class of inmates, which may be determined according to the prisoner’s health, age, vulnerability, health and time to serve.
Eligibility for release includes all offenders who are a low risk and explicitly excludes serious offenders, with specific reference to murderers, terrorists and serious sex offenders. Prisons include substantial populations of low-level and not-yet-sentenced offenders who are imprisoned for short periods. People charged with traffic, public order, drug possession, breach of justice order and property offenders are among these populations. Release will amount to early parole with conditions imposed (including, potentially, home detention and electronic monitoring).
Decisions to release prisoners will be determined on a case-by-case basis where the commissioner is satisfied that the release is “reasonably necessary because of the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic”. To be eligible for this early release inmates must not pose a risk to the community or to the safety of victims – especially in relation to domestic violence offenders – and they must have access to accommodation.
The granting of wide powers to governments and administrators is the hallmark of emergency justice laws, and this legislation is no exception. It opens up a range of questions in relation to the use of discretion. Will it be used in favour of non-Aboriginal inmates due to implicit bias that they have a lower risk than Aboriginal inmates? Or will the commissioner take note of the greater incidence of chronic health conditions facing Aboriginal inmates that warrant their release? Without transparency in the decisionmaking process, and a lack of review mechanisms, we are not likely to see the trend in decision-making until it is too late to alter the trajectory.
After the NSW bill was introduced, the Northern Territory corrections commissioner announced that he intended to release early up to 60 lowrisk prisoners. The commissioner has identified eligible prisoners who are likely to suffer severe and critical outcomes from a Covid-19 infection. This will also free up its 1,700 prisoner population – more than 80% of whom are Aboriginal. Release will be determined by risk assessments – a process that has been criticised for its cultural bias. Of concern is that remote Aboriginal communities are now “closed” in the NT, meaning that no one can return until they self-isolate. This is likely to be a challenge for released prisoners who do not have accommodation outside of their community and may lead to unwell Aboriginal people from remote communities being unduly left out of this measure.
The NSW emergency prisoner release legislation and the administrative initiative in the NT is a first step in protecting prisoners. It constitutes a significant concession of the dire problems of prison overcrowding, especially for the many inmates who have chronic health problems. It should be a clarion call for the remainder of the country of the need for radical action to protect prisoners’ lives. Immediate implementation is necessary before it is too late. Without such release measures, Covid-19 will spread like wildfire in cramped Australian prisons.
• Thalia Anthony is a professor at the faculty of law at the University of Technology, Sydney
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