In late August 2021, news first broke that COVID had made its way into NSW prisons. By September 7 there were 150 confirmed cases between the Parklea Correctional Centre and Silverwater Correctional Complex. Soon after, there were known active cases of COVID in Silverwater, Parklea and The Metropolitan Remand and Reception Centre. By 15 September, COVID had made its way into the Alexander Maconochie Centre in the ACT. And on 30 September, the AMC was plunged into another lockdown after a non-detainee tested positive. There were reports that it was possible as many as eight inmates had tested positive.
The effects of COVID on our prison population and the criminal justice system more broadly, both in the ACT and NSW, are significant. Prisoners are some of the most vulnerable members of our society. There are higher rates of health problems amongst prison populations, and it is difficult to social distance within gaols without total lockdowns. Aboriginal and Torres Strait Islanders are also over-represented amongst detainees, meaning that they are over-exposed to the risks of COVID. There is no doubt that COVID has led to shocking impacts on inmates, both in putting their physical health at risk, and also causing further strain to their mental health.
A NSW Parliamentary Inquiry in September heard there were more than 300 COVID-positive inmates across prisons in NSW, including 84 Indigenous people. Over 40 Correctives/Justice Health staff had also tested positive. The committee also heard evidence of inmates being denied access to hand sanitiser and face masks while inside locked down prisons, and of COVID-positive inmates not being allowed to contact family members.
In the ACT, vaccinations have not been made mandatory for prison staff, despite calls for this to happen from Winnunga Nimmityjah CEO Julie Tongs. And as of 14 September, COVID tests were offered, but were not mandatory, for people entering the ACT watchhouse. More concerningly, prison staff who came into contact with COVID at work were not required to quarantine. There are clearly serious concerns about COVID safety procedures in the AMC.
Beyond the direct impacts on detainees, COVID’s presence in the prison system has also impacted the work of criminal defence lawyers. Successful criminal defence cases hinge on the obtaining of good and meaningful instructions from clients and require that communication channels remain open between lawyer and client. And whilst contacting and speaking with clients in the gaol can be difficult at the best of times, COVID has made this even harder. This is because in person legal visits can be prohibited, and because gaol calls can be cancelled/stopped due to COVID lockdowns within the gaol itself. This has meant that lawyers have been less able to receive detailed and regular instructions from clients.
Another challenge faced by practitioners from the effects of COVID, is that it has made it difficult for clients to attend court in person. Whilst this is not always an issue for minor court dates such as mentions, it has meant that lawyers and clients have had to make difficult decisions about whether court dates should be adjourned until clients can appear in person, or whether it would be best to press ahead with the difficulties of a client appearing via AVL at sentence or hearing. It is usually the case that it is essential to have a client attend court in person, especially at a hearing. This may be because the client will need to be called to give evidence, and this is made substantially more difficult when it is mediated through an audio-visual link. Or it could simply be because the client is needed in person at a hearing so that they are able to speak immediately and privately with their lawyer to provide up-to-date instructions as the evidence is heard, which cannot happen if the client is forced to appear remotely.
The effect of COVID within prison has meant that clients, who are already disadvantaged by being in custody, have had to make the difficult decision of either wanting to finalise their matters and potentially be released whilst doing so by appearing remotely, or they have had to decide to spend further time in custody waiting for a court date where they can appear in person.
Jack Johnson, Lawyer