Coronavirus is a ticking time bomb for the Australian prison system
The Australian Guardian -
prisoner release is the only way to save lives and should be put in
place before it’s too late
prisons are already operating at more than 100% capacity and coronavirus
rates are increasing exponentially.’
are notorious incubators for infections and the World Health
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.
Some NSW prisoners could be
released early under Covid-19 emergency powers
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
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 Colombia.
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.
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.
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-plus population 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
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Eligibility for release includes
all offenders who are a low risk and explicitly excludes serious
offenders, with specific reference to murderers, terrorists and serious
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.
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
decision-making 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
Australia's overcrowded prisons could struggle to control coronavirus,
After the NSW bill was introduced, the Northern Territory corrections
commissioner announced that he intended to release early up to 60
low-risk 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
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
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
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