Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Bill 2019

(Debate on Bill, 04 June 2019, Legislative Assembly, NSW Parliament)

The Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Bill 2019 aims to protect correctional centres' ability to implement behavioural management policies and withdrawable privileges—practices put in question by a recent court ruling. The Government says that implementing behavioural management policies and the privilege withdrawal system can continue to make prisons safer. Prisons are unsafe places, particularly for inmates who are at constant risk of violence, intimidation, bullying, harassment and sexual assault. The loss of freedom and privacy, the confined space and the rigid routine, the power hierarchy inherent in the system and a population of mostly people with some form of disadvantage make jail a hotbed for conflict and problem behaviour.

The aim of behaviour management policies and the privilege withdrawal system is to maintain good order and encourage good behaviour among inmates, but the withdrawal of privileges has the potential to have significant impacts on vulnerable inmates and the families of inmates. We know that people with an intellectual disability are over-represented in the prison system. They are easy targets for bullies and, as a result, suffer more than others in prisons. Research by Human Rights Watch found regular violations of the rights of prisoners with disability. Inmates with an intellectual disability often struggle with the rigid system of prison life and will end up breaching rules and losing privileges regularly. It is unclear whether removing privileges for people with an intellectual disability will have any behavioural benefits.

I am particularly concerned when reducing family contact is used as a form of punishment, with visits reduced or contact denied, especially in the case of juveniles and women with children. Children should always have full access to, and contact with, their family and the people who love and support them. Being placed in care increases the likelihood of offending and ending up in the justice system, so we know that reducing family contact only adds to the problems that cause offending. If the Government's focus is on rehabilitation rather than increasing recidivism, denying children in correctional centres the ability to hug their family or talk to them in private about their concerns can have no benefit for their health and wellbeing. It should not be permitted.

Nearly three-quarters of women in prisons are mothers, with 62 per cent of them being the sole caregiver, mostly to children aged under six. Mothers must have regular contact with their children regardless of what happens inside prisons. Not being able to hold their children or talk to them in private punishes not only women inmates but also their children. That has an enduring effect, including putting them at risk of State care and potential run‑ins with the law. The remoteness of women's prisons already makes family visits difficult. Women's prisons should not control family contact in any way as a form of discipline. The court case that calls privilege withdrawals into question should be used as an opportunity to review the system and assess the impacts of current approaches.

To make prisons safer, ultimately we should aim to reduce the prison population. The justice system is expensive and has significant social costs for those affected and wider community costs from inmates discharging to unemployment, homelessness, poor health, State care and, potentially, a career in crime. Overall, the prison population in New South Wales has been growing rapidly, increasing from 10,000 in 2013 to 13,651 in 2018 and plateauing in the past 12 months. The widely reported over-representation of Aboriginal and Torres Strait Islander people in correctional facilities is of great concern. While arrests of Indigenous people for violent and property offences have reduced by more than a third, there has not been a corresponding decrease in the imprisonment rate. Indeed, the number of Indigenous prisoners doubled between 2001 and 2015. In juvenile centres, half the population is Indigenous; in adult prisons, a quarter of the male and a third of the female population is Indigenous.

Reducing incarceration rates is an essential step in closing the gap and achieving full reconciliation. Culturally sensitive legal services, particularly for young Aboriginals, are needed and the Koori Court—which is being expanded to the Surry Hills Children's Court—should be used across the State. Drug courts have also shown to be effective. We now have three drug courts but more drug rehabilitation programs are vital. We also need to treat drug use as a health concern, not a criminal matter, and stop imprisoning people for their drug habits. We need to find a new way of dealing with offending when disadvantage is a clear factor. Homelessness, mental health, cognitive impairment, addiction, poverty, trauma, sexual assault, family and domestic violence, and being placed in State care are all known factors in offending. The focus of the criminal justice system must be prevention, early intervention, diversion, rehabilitation and integration; investment and reform must shift in this direction. Bail needs significant reform. Almost a third of adult prisoners and more than half of juvenile prisoners are on remand. The presumption of innocence must form the basis of bail decisions where bail is refused only because there is an unacceptable risk that the accused will commit a serious crime, endanger the community or interfere with witnesses or will not appear in court. Reform to bail laws will always be at risk of shock-jock and sensational media attacks, and I do not believe improvements will happen unless there is multi-partisan support, with all members taking an evidence-based approach rather than pandering to and inflaming community fears.

Correctional centres would be safer if they gave prisoners the opportunity to gain new skills, treat drug problems and mental illness, and move away from a life of offending. We must expand resource prevention, early intervention, diversion and rehabilitation programs, and help offenders integrate back into their families and communities, maintain homes and get work. We must trial innovation and test new approaches to better spending money and improving outcomes for offenders and the community. I call for a new approach to dealing with offending and a review of the impacts of privilege withdrawal policies, particularly withdrawal of family contact.

Mrs WENDY TUCKERMAN (Goulburn) (16:55): As the newly elected member for Goulburn, I wholeheartedly support the urgent need for the amendments included in the Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Bill 2019. Management of inmate behaviour by Corrective Services NSW includes using incentive-based schemes that are separate to the correctional discipline process in division 6 of part 2 of the Crimes (Administration of Sentences) Act 1999. In Goulburn's jails, which are renowned for housing the worst of the worst, incentive-based behavioural programs are widely used and applied to our inmates. Incentive-based schemes allow operations to respond immediately to negative inmate behaviour and ensure the safety of staff and other inmates. They can include increasing or decreasing withdrawable privileges in order to encourage positive inmate behaviour.

After talking with the local management team, including Governor Larry Bolger, we have learned that incentive-based schemes work. In fact, they are critical for managing inmate behaviour and the safety of our correctional centres. Behaviour management plans are a fundamental strategy for the behaviour management of high-risk offenders, and without them our communities and the correctional centres in which they operate would be exposed to increased risk. The Hamzy judgment in February 2019 has created uncertainty about the ability of Corrective Services to use incentive-based schemes such as behavioural management plans to manage inmate behaviour and respond to misconduct in a timely manner. In response to the Hamzy judgement, in March this year over 200 staff walked off the job at Goulburn jail, sparking a statewide strike.

The court found that it is unlawful to use behavioural management plans to reduce withdrawable privileges in response to inmate conduct that may also constitute a correctional centre offence or criminal offence where it is not done in accordance with the process in division 6 of part 2 of the Crimes (Administration of Sentences) Act. Correctional services involve both enforcing conditions and enforcing the consequences of breaking those conditions. We should present choices to inmates by defining conditions and consequences without threatening those inmates. This makes them aware that they have a choice about how they behave. This is particularly important in Goulburn: The increased risk associated with our inmates means we must do everything we can to ensure that our correctional officers return home safely to their families at the end of each working day.

The Hamzy decision has caused significant concern for Corrective Services and for the Prison Officers Vocational Branch of the Public Service Association of NSW. I know this because I have spoken with several concerned corrections officers and their families. The strike by our correctional officers in March was a cry for help and this amending bill is a sign of solidarity—a sign that this Government will do everything it can to protect our frontline corrections officers. We can achieve this by continuing to incentivise positive inmate behaviour and by responding appropriately to adverse behaviour such as assaulting a correctional officer—as in the Hamzy case.

Confronting angry or irate offenders may be among the most difficult duties in corrections. It is a learned skill. The ability to successfully achieve de-escalation can have definite safety and security implications. This bill is a no-brainer. It is a necessary measure to provide certainty and clarity to Corrective Services' operations and to ensure that our officers on the ground have the tools required to manage inmate behaviour and staff safety. In addition to enhancing correctional officers' safety, these amendments also act to enhance the safety of other inmates as they would allow Corrective Services to withdraw privileges in response to inmate-on-inmate assaults, thus providing an immediate response and protecting other inmates.

As the member for Goulburn, I cannot stress the importance of this bill highly enough. The Parliament of New South Wales has a responsibility to do everything it can to protect the safety of our correctional officers. That includes ensuring they are equipped with appropriate behaviour management tools and can carry out their roles not only effectively, but also with minimal further risk to safety where possible. I congratulate the Minister on taking swift action and introducing this bill to the House. I thank him for enhancing correctional officers' safety.