Members of Oxford Criminology work with a number of colleagues at Monash University Australia.

As restrictions enacted to combat COVID-19 begin easing across Australia, the issue of managing potential outbreaks within prisons continues to remain a challenge for state governments. Australian sentencing and bail decisions to date have identified a number of COVID-19 related concerns for prisoners. There is the risk that if the virus is found in a prison, human to human transmission would be exponential because of the closed environment and the fact that many prisoners have underlying medical conditions that may make them more susceptible to contracting the virus. In addition, lockdown restrictions that would be necessary to contain the virus may have a detrimental effect on a prisoner’s capacity to maintain relationships with family and friends, and exacerbate prisoners’ stress and concern about the virus itself.

In March 2020, these concerns provided the impetus for more than 400 justice and health advocates to sign an open letter calling on Australian governments to reduce the risk of transmission of COVID-19, particularly in prisons and youth detention centres, by advocating for the early release of some prisoners including:

  • Those with pre-existing medical conditions that would make them vulnerable to contracting the virus;
  • Low level offenders such as those detained for summary offences or for non-violent offences; and
  • Those with a remaining term of 6 months to serve.

Notwithstanding, as at 3 May 2020, no Australian state or territory had released inmates early because of COVID-19. While restrictions are easing, the potential for further outbreaks remains, particularly in closed environments such as prisons. Government responses to these challenges remain relevant, and may also provide lessons for how to deal with future public health emergencies. Using the three most populous states – Victoria, Queensland and New South Wales - as examples, it becomes apparent that there has been no consistent response. 

The most conservative response was in Victoria, where the State Government has not enacted formal measures or policies for the early release of prisoners. It is up to individual prisoners to initiate proceedings for early release. For example, on 29 April 2020, Mark Rowson, a 52-year-old sentenced to approximately five year’s imprisonment for fraud offences, sought orders in the Supreme Court of Victoria for his early release. Mr Rowson, who would not otherwise have been eligible for parole until March 2022, cited chronic health risks ‘including the risk that he will die if he is infected with the COVID-19 virus’. He proposed to reside with his mother under strict conditions, and would remain in the legal custody of the Secretary of Corrections. Nonetheless, his application was rejected, with Justice Ginnane finding that ‘in this case, in circumstances where no diagnosis of an infected person in prison has occurred, I am not persuaded that such an order should be made either as a matter of balance of convenience or the justice of the case.

It is apparent that judges are not necessarily best placed to make these assessments. Indeed, upon hearing Rowson’s evidence as to the unhygienic practices in Port Philip Prison, Ginanne J ordered Corrections Victoria to assess the COVID-19 risk within the prison. Although it is understandable that there might be a reluctance to order the release of a prisoner two years before the end of his non-parole period, by the time there is an infection in the prison, it may be too late. It is arguable that these are matters of public health and public policy that should be subject to clear guidelines rather than left to individual prisoners, many of whom will not have the resources, to bring such applications.

In Queensland - where non-violent offenders make up about 65 per cent of the prison population – the initial stance articulated by the Queensland Parole Board on 16 April 2020, was that ‘vulnerability, exposure to or a confirmed diagnosis of COVID-19’ were not sufficient to justify early release from prison. Rather, the issue of COVID-19 was to form part of a broader consideration of the circumstances of the particular prisoner.  However, by 19 May 2020, the Queensland State Government introduced early release measures, allowing for prisoners who were near the end of their sentence to be released 7 days ahead of their release on parole.  While this is no doubt welcomed by those prisoners, it provided no mechanism for prisoners not nearing their release date. These prisoners would have had to raise the matter as part of the parole hearing. Of course, prisoners such as Mark Rowson would not be eligible to do even that and would remain at risk.

A more holistic approach was taken in New South Wales, where legislation was enacted on 25 March 2020  allowing for the Corrections Commissioner to release prisoners who are at risk of contracting COVID-19 and who simultaneously pose a low risk to the community. In order to be eligible for release, a prisoner has to belong to ‘a class of inmates’ which may be defined by characteristics such as the offence committed by the inmate; the period remaining before the end of their sentence or non-parole period; age, health or vulnerability of the inmate; and any other matter. Other relevant factors include community safety and whether the inmate has suitable accommodation. Serious offenders cannot be considered for early release, and this includes offenders convicted of murder, sexual offences and terrorist offences. The relevant test applied for releasing an offender is ‘the risk to public health or to the good order and security of correctional premises arising from the COVID-19 pandemic.’ Once released, a prisoner would be subject to parole conditions as well as any additional conditions that the Commissioner directs.

It can be seen that, in comparison to the other responses, New South Wales places the decision in the hands of the Commissioner rather than judges, is not limited to a particular stage of sentence in order to be eligible, and provides for a range of factors to be balanced in determining whether the prisoner should be released. It is not suggested that this response is perfect. Oversight of the Commissioner’s decisions, for example, is an issue to be considered. Further, it is notable that even with this legislation, no prisoners have been released early. Nonetheless, it provides for a much more targeted response to the challenges of a public health emergency. Australian governments have been praised for the level of cooperation achieved in responding to COVID-19 namely through the creation of an intergovernmental decision making forum, ‘The National Cabinet’. Now that we know how rapidly such public health emergencies can strike, and how vulnerable prisoners are, there is an opportunity for states and territories to learn from each other, and from overseas to develop an appropriate mechanism for early release if and when it is needed again.

 

Natalia Antolak-Saper is a Lecturer in the Faculty of Law, Monash University. Her research areas are in comparative criminal law and procedure with a particular focus on unrepresented accused, sentencing and the death penalty. With colleagues at the Capital Punishment Impact Initiative, Natalia is currently working on a programme of death penalty research with Professor Carolyn Hoyle.

Natalia graduated from Monash University with a Bachelor of Arts, majoring in Criminology, and a Bachelor of Laws with First Class Honours. She completed her professional training with Lander & Rogers Lawyers, and was admitted to practice as a Barrister and Solicitor of the Supreme Court of Victoria and of the High Court of Australia. In 2012 she received an Australian Postgraduate Award scholarship and commenced her PhD which examined the extent to which the media impacts upon sentencing policy. In 2017, she was a Visiting Scholar at the William and Mary Law School, Williamsburg, USA. She has published articles on diverse topics including directed verdicts, bail conditions, and gambling regulation. She teaches criminal law and trusts in the LLB and JD programs at Monash. Her research areas are in comparative criminal law and procedure with a particular focus on unrepresented accused, sentencing and the death penalty.