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DAVID BROWN[*]
It is 25 years since the release of the Report of the Royal Commission into NSW Prisons in 1978 presided over by Justice Nagle of the NSW Supreme Court and commonly referred to as the Nagle Report.[1] The Nagle Report and the events leading up to it constituted a watershed in NSW and indeed Australian penal history, signifying a period of reform. That period, presided over by Professor Tony Vinson as Chair of the NSW Corrective Services Commission and backed at least initially by the Wran Labor government and significant sections of public opinion scandalised by the revelations of brutality, incompetence and cover-up revealed at the Nagle Commission, was relatively short lived, but highly significant none-the-less.[2]
The reform momentum was slowed by a combination of the industrial resistance of the prison officers union, belated the resignation of Tony Vinson, a hardening of media and public attitudes to prisons and prisoners, and government backtracking, and was officially laid to rest a decade later when the bellicose Michael Yabsley took over as Minister for Corrective Services in the Greiner government of 1988 and sought to leave his mark as someone who had 'put the value back into punishment'.[3] There followed a period of upheaval and violence 1n the NSW prison system, undoing many of the gains made in the Nagle/Vinson reform period.[4] Yabsley's removal in the early 1990s has been followed by a decade of cautious penal politics in which the major 'political imperative has been to keep prisons off the front pages and keep quiet about any reforms, against the backdrop of a rapidly increasing prison population, a massive prison build1ng program and a volatile and punitive populist debate over law and order and the criminal justice system.
In attempting to evaluate the Nagle Royal Commission from a vantage point 25 years later, it is important to place the Nogle Report it in its wider context; a context of anti-institutional movements in universities, schools, psychiatric hospitals and elsewhere and the rise of new political subjectivities such as second wave feminism, black power, land rights, green bans, environmentalism, 'alternative' subcultures, anti-colonial independence struggles internationally, and widespread and growing opposition to the Vietnam war.
When in October 1970 Superintendent Pal lot, Governor of Bathurst Gaol threw the first punch in leading a 'systematic flogging of a large number, if not all, of the prisoners in the gaol' (p 19) (to use the belated admission of counsel for the Prison Officers Vocational Branch of the Public Service Association at the inquiry) little did he realise that he was setting in train a sequence of events which was to lead to the Nagle Report. The road to Nagle was cleared by prisoners at Bathurst 1970, such as Prisoners Action Group (PAG) founder Tony Green and others, who came forward with accounts of the bashings; lawyers including many affiliated with the NSW Council for Civil Liberties (CCL), in particular Jack Grahame, Tom Kelly and Jim Staples, who circulated those accounts with the assistance of internal critics such as prison psychologist, Len Evers and members of the ALP opposition in parliament, in particular the late George Petersen. The false denials of the Department and the Coalition Government provided a delaying tactic but also one which fostered the sense of grievance and thirst for justice among the widening and coalescing band of prisoners and ex-prisoners and their families, lawyers, journalists, students, academics, politicians and others, individually and in groups such as the NSW Council for Civil Liberties (CCL), the Penal Reform Council and Prisoners Action Group (PAG), which together constituted a prison movement.
The grievances unremedied and the events still denied, Bathurst gaol erupted again in 1974 in a major riot, in which a large section of the gaol was destroyed and many prisoners were injured, some seriously, by gunfire from the towers and in the subsequent gauntlet after the riot had been quelled. A fresh round of denials, prevarication and denigration of prisoners and their accounts of events issued forth from the Corrective Services Department and the Government, but the road to Nagle had now become a highway, and the drive for an accounting, a juggernaught.
A tactic of delay and obfuscation, centred largely on the laying of riot charges against a number of Bathurst 1974 prisoners, only served to both highlight Departmental and Government cover-ups and dishonesty, and enlarge the ranks of the band of lawyers defending the rioters in their attempts to reveal the causes of the riot and highlight the reprisal gauntlet bashings afterwards. Established organisations like the Law Society and Bar Association weighed in and investigative journalists around the then National Times published prisoners' accounts of events at Bathurst in 1970 and 1974 for the first time in the mainstream press, drawing heavily on Jim Staples and Jack Grahame's Bathurst Botterings document. Coverage included Anne Summers' important piece on the infamous 'reception biff' regime at Grafton. [5] a regime which ran from 1943 to 1976 and was only halted on the eve of the Royal Commission.
The Nagle Royal Commission began its hearings in 1976 against the backdrop of six years of building agitation and unravelling cover-ups. In its Report handed down in March 1978 the Commission essentially verified prisoners' accounts of events at Bathurst in 1970 and 1974, laid out the horror of the 33 year Grafton regime, recommended the closure of the state's newest prison, Katingal, and made a large number of mainly reformist recommendations for improvement in prison conditions and amenities.
What then has been the legacy of the Nogle Report; how might we view it 25 years on in a vastly different political context to that of the late 1970s? A context marked by widespread insecurity; a 'volatile and contradictory'[6] penality; the proclaimed decline of what Garland calls 'penal welfarism'.[7] an increasing tendency to a politics of exclusion and 'othering'[8] and a 'popular punitiveness'[9]; in short a context not particularly conducive to arguments in favour of prisoners' rights. One way of attempting to answer this question is to offer a brief overview of how some of the key issues confronting Nagle appear today. The assessments offered are necessarily brief. over-generalised, partial, and in some sections, anecdotal.
In the introductory overview section Nagle called for 'a building plan to be drawn up until the year 2000', the aim of which 'should be to replace old gaols which cannot immediately be satisfactorily altered by new facilities'. He added:
Any replaced gaol should be handed over for other public use or destroyed. The plan should be flexible, as
it can legitimately be hoped that the prison population will not necessarily continue to increase proportionately to any population increase because of, inter alia, the adoption of alternative modes of punishment and improvements in the organisation of society (p 25) (emphasis added).
In fact NSW imprisonment rates, which take account of population increases, have doubled in the 25 years since Nagle. When the Commission was sitting in 1977 the NSW prison population was 3,687 (p 450) and the total Australian prison population was 8,700 at a rate of 63 per 100,000 total population.[10] In March 2003 the NSW prison population was 7,920 at a rate of 154.2 per adult population; the Australian prison population was 22,114 at a rate of 147 per 100,000 adults.[11] There were 254 Indigenous prisoners in NSW prisons in 1976, constituting 7% of the prison population. In 2003 there were 1,427 Indigenous prisoners in NSW at a rate of 2,066 per 100,000 Indigenous population and a proportion of 20%.[12] These increases have lead both to levels of significant overcrowding[13]and a massive prison building program which will see capacity 'close to 10,000 by 2005'[14], giving rise to arguments about a prison industrial complex as rural communities in particular vie to be the site of the next prison as a source of jobs, revenue and services.
The operating expenditure of the NSW Department of Corrective Services for 1975-76 was $30 million (p 16) and for 2001-2002. $560 million.[15] The average daily cost per prisoner in 1975-76 was $28.12 across all institutions (with the exception of Katingal with a daily cost of $86.35) (p 161) and in 2002--D3 total cost per prisoner per day in NSW was $221.[16] Total annual expenses for the Department of Corrective Services has increased by 37% in real terms between 1994 and 2001, an additional $45 million a year in current terms.[17]
Nagle recommended in 1978 that the existing system of virtually automatic remissions be changed to a genuinely earned one as an incentive to good behaviour, and that remissions apply to the non-parole period rather than just the head sentence (p 305). The latter recommendation was acted on by the Wran government in reforms in 1983,[18] which had the effect of reducing the length of sentences actually served, although research suggested that some judges were Increasing sentence lengths to counter the effect of remissions coming off the non-parole period.[19] The 'early release' of prisoners became a source of public and media disquiet following the conviction and imprisonment of former Labor Prisons Minister, Rex Jackson in 1987, for con piracy in relation to a short term licence release scheme. Remissions were then abolished as part of the 'truth in sentencing' package of changes introduced by the Greiner government in 1989,[20] a move which significantly increased sentence lengths and contributed to a 30% increase in the prison population over the first two years of the Greiner government.[21] The 1989 legislation introduced a three quarter formula between the minimum term and the head sentence[22] and so called 'natural life' sentences.[23] In the 1990s the NSW CCA moved to UK style guideline sentences, which had the effect of increasing sentence lengths in specific offence areas such as culpable driving causing death[24] and armed robbery.[25] Politicking over garbled versions of 'three strikes' and mandatory sentencing took place throughout the 1990s, with the most significant change occurring in 2003 when the ALP government introduced 'standard minimum terms' for a range of serious offences, which can be reduced or increased by reference to a range of mitigating or aggravating circumstances already operative within the common law, retaining judicial discretion.[26] The Liberal National Party opposition described mitigating factors as 'mere excuses' and their counter proposal would have removed judicial discretion altogether and effectively introduced mandatory minimums.[27]
The expansion in the number of new prisons has meant, by and large and with significant exceptions like the Goulburn 'Supermax', that the quality of buildings and facilities has improved. When Nagle reported in 1978 he described the buildings and plant as 'old and in poor condition' (p 263); 'slopp1ng out' was still a practice some older prisons such as Parramatta and there was still no glass in some cell windows at Goulburn and Bathurst (p 330). There is now a policy in newly constructed prisons to have showers and toilets internal to each cell. Some reconstruction has taken place in older prisons such as at Long Bay and the old front special {punishment) yards have been largely phased out, but major new prisons such as the Metropolitan Remand and Reception Centre (MRRC) at Silverwater in Sydney replicate various problematic physical features. While prison architecture and the physical conditions clearly affect (and effect) the experience of imprisonment it is the nature of the regime itself and the social relationships within it that are decisive.
There is no separate entry for deaths in custody in the Nagle Report, although there is reference to the fact that 'several prisoners committed suicide while at Grafton' (p 143). Deaths in custody, police stations and prisons, became an issue in the mid-1980s after an escalating number of specifically Aboriginal deaths in custody and the Hawke government set up a Royal Commission in the lead-up to the Bicentennial in 1988. The Reports of the Commission suggested that the high Indigenous death rates were a consequence of the disproportionately high Indigenous imprisonment rates and made a range of recommendations.[28] Critics have suggested that implementation has been tardy and partial.[29] The disproportion in Indigenous people imprisoned has increased, from 7% of the NSW prison population when Nagle reported to 20% in 2003. Between 1980 and 1998 there was a doubling in both the number of Indigenous deaths and the number of prisoners in Australian prisons. In the decade before the Royal Comm1ssion 12% of deaths in prison were of Indigenous people, rising to 17% in 1998.[30] While deaths in police custody decreased during the 1990s, all prison deaths doubled nationally and in NSW, from the 1980s to a high point in 1997.[31]
The practice and culture of systematic bash1ngs of prisoners in NSW, evidenced in the 33-year Grafton 'reception biff regime and the Bathurst bashings of October 1970 and February 1974 was laid out in gory detail in the Nagle Report (Chapters 4-7). Nagle's argument was that once the brutality had been revealed for all to see it was unlikely to reappear (p 119).George Zdenkowski and I in The Prison Struggle (1982) were sceptical about this, [32] but it may have turned out to be largely true. Shortly after the release of the Nagle Report a group of old guard officers, some formerly from Grafton, engaged in a range of violent behaviour at Goulburn but an inquiry was quickly called by Commissioner Vinson and some Public Service Act charges laid[33]. Since th1s time little evidence has emerged or complaint been made about systematic bashing. A significant culture change away from the use and legitimacy of direct physical violence seems to have been achieved in the last three decades, a not insignificant achievement, especially given that some of the individual officers named as bashers at Grafton and Bathurst are still 25 years later, in the Department, at senior levels.
The rate of assaults (number of assaults per 100 prisoners) by prisoners on other prisoners and prison officers was introduced as a performance indicator in the Review of Government Service Provision 1998.[34]
On official figures in 2002-03 NSW had the highest rate of 'assaults by prisoners on other prisoners per 100 prisoners of any Australian jurisdiction' at 16.86 (compare 'serious assaults' which includes sexual assaults, of 0.63 for prisoner on prisoner and 0 for prisoners on officers)[35] but comparison w1th the Nagle period is not possible. While it might appear that prisoner to prisoner assaults are increasing, whether this is an artefact of the recording practices (including refinement of categories) and shifting sensibilities is difficult to determ1ne given the likely very low rate of reporting of assault and sexual assault within an overall culture of prison hyper-masculinity. Older prisoners talk in terms of 'blue on green' being replaced by 'green on green'. What they mean by this is that the fonmer culture of mutual prison officer/prisoner hostility, manifest in minimal communication and cooperation and by the prevalence of epithets such as 'crim lover' applied to 'deviant' officers who showed an interest in or talked to prisoners and 'screw lover' applied to prisoners who did the reverse, has changed to one of prisoner against prisoner. At an anecdotal level, at Goulburn prison prisoners are grouped along ethnic/ racial lines and prisoners report that such divisions heighten tensions and have operated to increase levels of violence amongst the various groups. Goulburn is seen by prisoners as a violent and dangerous prison.
David Heilpern's study suggested that one in four male prisoners were sexually assaulted during their tenm of imprisonment.[36] The Department claims such figures are exaggerated and point to the 0.11 reported rate of serious assaults of prisoner on prisoner, which includes sexual assaults, per 100 NSW prisoners in 2002-3. [37]
Then Prisons Minister Michael Yabsley infamously remarked in 1991 that rape was 'inevitable' in prison and indeed that fear of prison rape might be a useful 'deterrent factor' to those thinking of offending,[38] implying that sexual assault in prison was an additional form of governmentally-tolerated punishment The current administration claim that there is no such tolerance and reports and complaints are quickly acted on. It seems very likely that levels of reporting of sexual assault in prison are significantly lower than in the outside community and thus it is difficult to determine both whether sexual assault has increased and whether tolerance of sexual assault in prisons (both on the part of the administration and prisoners) has diminished.
The level of riots and major disturbances such as those which gave rise to the Nagle Royal Comm1ssion and were common in prisons across Australia and in the UK and USA in the 1960s and 1970s has diminished sign1ficantly. This has not been a linear process: there were numerous major disturbances during the reign of Michael Yabsley as Prisons Minister in the late 1980s and early 1990s and in other jurisdictions there have been major disturbances from time to time, for example a major riot at Casuanna prison in WA in 1998.[39] In NSW there have been recent incidents of violence (eg at Goulburn and Lithgow in 2002) which have not received extensive publicity.
Nagle noted the practice of what we now call 'lock downs', resulting from industrial action by prison officers, saying they caused 'great hardship to the prisoners' (pp 228-9). Their use, which effects a form of collective punishment in a particular gaol or section and might be seen as an indicator of an intensification of penal discipline, seems to have become a more common practice since Nagle. Some of the lock-downs are claimed to be necessary as part of searches for drugs or contraband or after rumours of escape preparations. Some seem to be for predominantly staffing or .industrial reasons. Whatever the official reasons for lock-downs, collective punishment and deprivation of prisoner access to amenities is a clear effect.
Nagle was critical of the Department of Corrective Services and in particular its then Commissioner, Walter McGeechan, for not introducing more time out of cells (pp 201-2). He noted that time confined to cells varied and in secured institutions was up to 15 hours per day (ie nine hours out of cells) and in Grafton more than 17 hours a day (pp 330-1) and recommended that 'prisoners should not be locked in their cells overnight for longer than ten hours' (p 471). Hours out of cell was introduced as a perfonmance measure for inmate care in the 1995 Report on Government Service Provision where the 1992-93 figures showed a NSW total average of 10.58 hours, open institutions averaging 12.49 hours and secure institutions 9.72 hours. [40] In the 2004 Report for the year 2002-03 the correspond1ng average figures were 10.6 total; 12.3 open and 9.2 secure[41], indicating little movement since Nagle.
Nagle declared that the level of escapes, 185 in 1976 or 'less than 5% of the prison population' (p 269), was 'acceptable' and that 'the Prisons Commiss1on should not introduce repressive regimes in an attempt to reduce that rate' (p 467). To sections of the media escapes are highly newsworthy and tend to be portrayed as a consequence or indicator of Departmental and governmental incompetence, a portrayal encouraged by the political opposition of the time. The fact that most escapes are from minimum security classifications is often downplayed and escapees' 'dangerousness' upgraded upon escape. Preventing escapes has taken on a high priority in terms of expenditure on security and Departmental priorities. Considerable industrial activity has taken place around attempts to phase out or reduce staffing of gun towers. The rate of escapes in NSW is currently at its lowest level since 1980.[42]
Nagle recommended that Katingal be abandoned, its cost being 'too high in human terms'. He added: 'it was ill-conceived in the first place, was surrounded by secrecy and defensiveness at a t1me when public discussion should have been encouraged. Its inmates are now suffering the consequences' (p 165). The exact rationale for Katingal is obscure given the secrecy surrounding its planning but, in part at least, it was a replacement for the bash regime at Grafton, replacing physical brutality to so-called 'tracs' (intractables, ie troublemakers) with sensory deprivation. Its closure was a victory for the prison movement ant! a testimony to Foucault's argument that prison revolts were:
Revolts against an entire state of physical misery that is over a century old: against cold, suffocation and overcrowding, against decrepit walls, hunger, physical maltreatment. But they were also revolts against model prisons, tranquillisers, isolation, the medical, the educational services.... In fact they were revolts, at the level of the body, against the very body of the prison. What was at issue was not whether the prison environment was too harsh or too aseptic, too primitive or too efficient, but its very materiality as an instrument and vector of power:'[43]
Nagle favoured a policy of dispersal rather than concentration but the discussion was ill-developed (pp 263-8). The Goulburn High Risk Management Unit (HRMU) opened in June 2001, appears to be the replacement for Katingal, for 'high-profile-crime' offenders.[44] Complaints about a lack of natural light and air, isolation, deprivation of association, lack of access to law books, limited and enclosed exercise, self mutilation and a generally harsh environment and regime, similar to complaints at Katingal, have recently been made and usefully publicised by Justice Action in their 'Voices from 'The Hole"' and 'Shine the Light' campaigns.[45] It has been alleged in parliament that the unit and its inhabitants have been subject to strategic media access at crucial junctures to suit 'tough on crime' political electioneering.
Nagle reported in the shadow of the Fraser[46] decision wh1ch found that internal disciplinary courts presided over by visiting magistrates (VJs) were 'courts' administering a 'punishment' within the meaning of the Justi1ces Act 1902 and thus a right of appeal lay to the District Court. The Fraser decision had major repercussions, such as the requirement for a proper transcript of proceedings, and effectively ended what had widely been viewed as 'kangaroo courts', illustrated by one case in which prison activist Brett Collins was charged and convicted of an internal disciplinary offence for writing to the Legal Aid Manager of the NSW Law Society seeking assistance with a pending High Court appeal.[47] Much to Nagle's disgust the Public Service Association called, both at the inquiry and politically, for a reversal of Fraser, an appeal rejected both by Nagle (p 473) and the government. VJ courts could no longer convict without some consideration of the evidence; legal representation was introduced through the Legal Aid Commission, Community Legal Centres and the Prisoners Legal Service; and the conviction rates at VJ courts dropped significantly.[48] Since then a substantial overhaul of prison disciplinary offences has occurred,[49] retaining the VJ hearing for only a few specified more serious offences at which the prisoner is represented by the Prisoners Legal Service, while the vast bulk of offences are heard by the prison governor, whose power to increase the sentence length has been removed and from whom there is no right of appeal.
Nagle made a number of recommendations which were aimed at the legal status of prisoners in an attempt to remove elements of forfeiture and restrictions on legal subjectivity. For example he recommended the abolition of all restrictions on prisoners' right to sue, to vote and to serve on juries (p 474). While the first was partly remedied by legislation to overturn the effect of the Dugan decision[50] which upheld the antiquated notion of civil death of capital felons, neither a right to vote nor serve on juries have come to fruition and in certain respects pnsoner's rights to legal and political subjectivity are being eroded.[51] Prisoners in NSW serving more than 12-month sentences are not entitled to vote and at a Commonwealth level where prisoners serving less than five years retain the franchise, the Howard government attempted (unsuccessfully) in 1998 to remove it altogether and are trying again in 2004.[52]
Nagle recommended 'prisoners should have full access to legal advisers and to the Courts' (p 474). A recent overview by Edney[53] suggests that there has been a movement away from the 'hands off doctrine articulated most clearly by Dixon CJ in Flynn v Kmg (1949) 79 CLR 1 that:
If prisoners could resort to legal remedies to enforce gaol regulations, responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice ... An interpretation of the power to make prison regulations and of the regulations made there under are directed to discipline and administration and not to the legal rights of prisoners . [54]
Edney argues that in the 1970s follow1ng prison riots and disturbances and the Nagle and other inquiries, courts 'became more cognisant of the rights of prisoners and demonstrated a greater willingness to intervene into the administration of prisons than had hitherto been the case'.[55] However he goes on to suggest that this willingness has transmuted into a form of 'hands off by stealth'. 'What the courts now do is to accord such a degree of deference to the judgment and "expertise" of correctional administrators that the approach is similar to the hands off doctrine in substance, if not in form'.[56] Edney argues that such an approach ignores the particular vulnerability of prisoners and is empirically suspect, treating prison administration as a science rather than a matter of practical policy which is highly variable and as open to judicial inquiry as to its reasonableness as any other area of expertise or administration under established heads such as 'legitimate expectat1on'. Australian developments compare poorly with developments in the UK under the spur of the European Court of Human Rights and the Human Rights Act 1998 (UK), and international human rights law relevant to prisoners[57] has had little direct effect in Australia.[58]
An indication of the limited significance of drugs in prison in 1978 can be gathered from the fact that there are only six entries on drugs in the index of the Nagle Report, with the longest discussion constituting one paragraph. A similar inquiry now would include a discussion of drugs in relation to the commission of offences, socio-economic backgrounds of offenders, drug programs in prison and in the community, drug courts, drug searches of prisoners and visitors, security in relation to drugs, drugs and HIV and hepatitis C prevalence among prisoners, issues of access to clean injecting equipment and bleach, among others. Drug and particularly heroin use has now become a major feature of the criminalisation of an identifiable 'delinquent' population, a 'delinquent cataloguing', either through drug use and dealing or through the commission of property offences such as theft, fraud, break and enter and armed robbery. Illegal drug use does not stop in prison as drugs are brought in on visits, through staff or in other ways. It might be possible to make an estimate of whether drug use in prison is now decreasing after a major upward trend since Nagle, through figures of drug seizures in prisons, although seizure levels may only be an effect of the level of resources devoted to drug searches and security, which have been stepped up in NSW.
Whatever the exact levels and whether increasing, levelling out or decreasing, drug dependency and use are now a major feature of the lives of many of those coming to prisons. The NSW Legislative Council Final Report put the figure of prisoners with 'a history of drug use' at 60% of males and 70% of females.[59] Drug use, dealing and attempts at regulation have significantly affected prison life and culture in all sorts of ways, including in the violent enforcement of drug debts incurred in prison, informing, and in breaking down older 'crim' solidarities and oppositional cultures.[60] Drugs are now the major official justification for a battery of new technological identification and surveillance devices, urine testing, dog squads, strip searching, cell ramps, lock downs, harassment of visitors, and increases in powers of search outside the confines of the prison.[61]
Nagle contained one chapter on prison industry, a seven-page chapter on education and two pages on pre-release. The Department now boasts over 1000 programs, although quite what this means is another question 111 that the availability of programs is often limited both in numbers and location and their effectiveness in reducing recidivism (not the only relevant measure) remains unclear or unevaluated. A series of program evaluations are under way. Individual case management was introduced in the early 1990s and despite some crit1cism [62] has promoted a shift 1n the roles of prison officers involved away from the purely custodial to a more welfarist, probation and parole type orientation. A multitude of smallish program units (for example for anger management, drug and alcohol use, violence prevention, sex offenders) are in operation, utilising a variety of methodologies and aimed at specific categories of prisoners. Increasingly completion of these programs is required as a condition of a grant of parole [63] or re-classification. Assessments of risk are clearly a key factor in the allocation' of program resources to particular prisoners. A part of the newly amended mission statement of the Department is to 'reduce re offending through secure, safe, humane management of offenders'.[64]
The above sketchy outline is far from complete and there are a range of other issues that deserve analysis such as health and medical services; the particular situation of prisoners with mental health problems and other disabilities; the specific position of particular categories of prisoners such as Indigenous prisoners; women prisoners and prisoners in administrative segregation; forms of community corrections; prison privatisation; visits and family contacts; levels of recidivism; the role of 'watchdog' agenc1es;[65] and the media portrayal of prison issues; among others. Nevertheless this brief and somewhat anecdotal comparison of some specific prison issues in NSW from the Nagle Report in 1978 to the present might be useful as a preliminary audit of some shifts at a predominantly empirical level. The key differences over 25 years are arguably the significant increase in the prison population, the expansion in the number and cost of prisons, the tripling over this period in the proportion of Indigenous prisoners, and the influence of drug use on the processes of criminalisation, the operation, culture and security of prisons and the health of prisoners.
Such an overview might also help inform a stream of analyses which attempt at a more theoretical level to seek explanations for the rapid increases in imprisonment rates across a number of Englishspeaking jurisdictions, the proclaimed 'punitive tum'. Such accounts focus on more general changes in social, political, economic and cultural organisation rather than on any specific forces confined to the crim1nal justice sphere; in short on the conditions of life in 'late modernity'.[66]
In this work criminologists and penolog1sts have asserted and sought to understand how a 'popular punitiveness'[67] has been constructed across a number of jurisdictions starting in the late 1970s and have sought to delineate the conditions which sustained it Different analyses have focused on:
• an increasing recognition of the inability of the 'sovereign' state to protect citizens from rising crime rates and consequent strategies of either adapting to or attempting to deny, the limits of the sovereign state, through 'criminologies of the self or 'criminologies of the other';[68]
• rapid economic and social restructuring in late modernity, involving the weakening or 'hollowing out' out of the welfare state, the rise of nee-liberalism as the dominant political force and the ascendancy of 'market society';[69]
• a 'volatile and contradictory' penality stemming from conflict between neo-liberalism and neo conservatism;[70]
• the rise of 'governmentality';[71]
• the emergence of a 'risk society'[72] and the development of a 'new penology' operating through actuarial and statistical techniques;[73]
• the emergence of post-modernity;[74]
• a profound sense of Insecurity and fear of crime;
• the emergence of a cultural politics of exclusion[75];
• a highly racialised criminalisation of minont1es and immigrants;[76]
• the pervasive effects of the electronic media and the increasing importance of a politics of image and identity;
• shifts in cultural sensibilities towards punishment in the direction of El1as's 'decivilisation';[77]
• a populist, 'anti-elites' backlash which is characterised in the criminal justice realm by widespread criticism of judges and professionals as out of touch with popular sent1ment and demands for heavier penalties, truth in sentencing, winding back judicial discretion, diminution of defendants rights, and a greater role for victims;[78]
or some combination of the above, to mention but some.
It is beyond the scope of this art1cle to consider the 'fit' between this overview of aspects of NSW penal practice since Nagle, and these various accounts.[79] But in as much as some of the explanations tend to be rather sweeping and generalised; weighted towards US exceptionalism; glossing over local, regional and national difference; focused on the discursive and the cultural; and tending towards what O'Malley calls 'criminologies of catastrophe',[80] it may be a useful corrective to engage in a more detailed and specific, empirically-based assessment of both transformations and continuities in the penal practices of particular jurisdictions, over recent decades. We might find for example, that the proclaimed decline of penal welfarism, has been overstated.[81]
REFERENCES
[*] DAVID BROWN teaches law at the University of NSW.
© 2004 David Brown
[1] J Nagle, Report of the Royal Commission into NSW Prisons (1978)
[2] For accounts of the Nagle period see G Zdenkowski and D Brown, The Prison Struggle (1982); M Findlay, The State of the Prison (1982), A Vinson, Wilful Obstruction (1982).
[3] J O'Neill, 'The Punishment Salesman' (1990) Independent Monthly, October
[4] See D Brown, 'Putting the Value Back into Punishment' (1990) 15 Legal Service Bulletin 6, 177-185, D Brown, 'The State of Play in the Prisons under the Greiner Government Definitions of Value' (1991) 4 Journal of Studies in Justice 27-60
[5] A Summers, 'If Prison is Purgatory, then Grafton is hell' The National Times, 26 April -1 May 1976
[6] P O'Malley, 'Volatile and contradictory pun1shment' (1999) 3 Theoretical Criminology 2, 175-196.
[7] See D Garland, Punishment and Modem Society (1990); ‘The Limits of the Sovereign State Strategies of Crime Control in Contemporary Society’ (1996) 36 British Journal of Criminology 4, 445-471, The Culture of Control (2001).
[8] J Young, The Exclusive Society (2000)
[9] A E Bottoms, 'The Philosophy and politics of Punishment and Sentencing' in C Clarkson and R Morgan (eds) The Politics of Sentencing Reform (1995)
[10] Mukherjee et al Crime and Justice in Australia (1990) 50
[11] Australian Bureau of Statistics (ABS) Corrective Services, March Quarter 2003 (2003) 7-8
[12] Ibid, 20-1
[13] In NSW the prison uti1isation rate in 2002-3 exceeded 100%, an indicator of overcrowding as 'the optimum rate lies
in the range 85-95%'. Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 2004 (2004) C13, 72&--7
[14] NSW Legislative Council, Select Committee on the increase in Prisoner Population, Final Report (2001) 1 0 S1nce
the Nagle Report, major prisons have been built at Parklea, Junee (private), Lithgow, Metropolitan Remand and Reception Prison at S1lverwater; and John Morony at South Windsor A women's prison is under construction at South Windsor and new prisons are planned for Kempsey and Wellington
[15] Ibid, 71
[16] Report on Government Services 2004 above, n 13,721-3, Table 7A6 Total cost' is a combination of recurrent and capital cost per prisoner per day
[17] NSW Legislative Council, above, n 14,73
[18] Probation and Parole Act 1983 (NSW)
[19] See D Weather/bum, 'Appellate Review, Judicial Discretion, and the Determination of Minimum Periods' (1985) 18 ANZJ of Criminology 4, 272; compare O'Brien [1984] 2 NSWLR449, Maclay (1990) 19 NSWLR 112
[20] Sentencing Act 1989 (NSW)
[21] A Gorta, 'Impact of the Sentencing Act 1989 on the NSW Prison Population' (1992) 3 Current Issues In Criminal Justice 3, 308
[22] Sentencing Act 1989 (NSW) s 5(2)
[23] Crimes (Life Sentences) Amendment Act 1989 (NSW) s 19A
[24] R v Junsic [1998] NSWSC 423; (1998) 45 NSWLR 209
[25] R v Henry [1999] NSWCCA 111
[26] Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) s 54A.
[27] D Brown, The Politics of Law and Order’ Law Society Journal (2002) October, 69-72
[28] Royal Commission into Aboriginal Deaths in Custody, Final Report (1991)
[29] C Cunneen and J Behrendt 'Report to the National Committee to Defend Black rights Aboriginal and Torres Strait Islander Custodial Deaths Between May 1989 and January 1994' (1994) 68 Aboriginal Law Bulletin 4
[30] V Dalton, 'Aboriginal Deaths in Prison 1980 to 1998 National Overview’ (1999) Trends and Issues No 131
[31] V Dalton, 'Prison Deaths 1980-97 National Overview and State Trends' (1998) Trends and Issues No 81
[32] Zdenkowski and Brown, above, n 2, 180-1
[33] lbid, 197-206
[34] Steering Committee for the Rev1ew of Commonwealth/State Service Provision, Report on Government Services 1998 (1998) 421
[35] Report on Government Services 2004, above, n 13, 7 13-14; Table 7A 13
[36] D Heilpem, Fear or Favour sexual assault of young prisoners (1998)
[37] Report on Government Services 2004 above, n 13, 7 1 3-14, Table 7A 13
[38] Sydney Morning Herald, 22 February 1991
[39] L Smith et al, Report of the Inquiry into the Incident at Casuanna Prison on 25 December 1998 (1999), K Carter, ‘The
Casuanna Prison Riot' Official Discourse or Appreciative Inquiry? (2001) 12 Current Issues in Criminal Justice 3, 363-375
[40] Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 1995 (1995) 492-5, SOB
[41] Report on Government Services 2004 above, n 13,716-17, Table 7A 17
[42] 047 per 100 prisoners in open security and 0 in secure custody Ibid, 7 16, Table 7A16
[43] M Foucault. Discipline and Punish (1978) 30
[44] For example Ivan Milat, Bilal Skaf and Phuong Ngo.
[45] See Justice Action. Framed (2003) 45 October, 4-6.
[46] Fraser [1977] 2 NSWLR 867.
[47] Collins v McRae (unreported, NSW SC 16 November 1979)
[48] See D Brown, 'Prison Discipline, Legal Representation and the NSW VJ Courts' in R Tomasic and R Lucas (eds) Power, Regulation and Resistance (1986) 123
[49] See Division 6 of the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1999 (NSW).
[50] Dugan v Mirror Newspapers Ltd (1979) 53 ALJR 166, Felons (Civil Proceedings) Act 1981 (NSW)
[51] For example the Victim’s Support and Rehabilitation Act 1996 (NSW) s 24(4) provides that ‘convicted inmates' are
ineligible for victim's compensation for 'an act at violence if it occurred while the person was imprisoned', illustrating that notions of forfeiture are alive and well See D Brown, 'Prisoners as Citizens' in D Brown and M Wilkie (eds) Prisoners as Citizens
(2002) 308
[52] See M Ridley-Smith and Ronnit Redman, 'Prisoners and the Right to Vote' in D Brown and M Wilkie (eds) Ibid, 283
[53] R Edney, 'Judicial deference to the expertise of correctional administrators the implications for prisoners' rights' [2001] AUJlHRights 1; (2001) 7 Australian Journal of Human Rights 1, 91--133
[54] [1949] HCA 38; (1949) 79 CLR 1 at 8
[55] Edney, above, n 53, 113
[56] Ibid, 125 For a good example see Binse v Williams (1998) 1 VR 381.
[57] C Giffard, 'International Human R1ghts Law Applicable to Prisoners' in D Brown and M Wilkie (eds) above, n 52, 177
[58] See C M1nogue, 'An Insider’s View Human Rights and Excursions from the Flat Lands' in Brown and Wilkie (eds) Ibid, 196
[59] NSW Legislative Council Select Committee on the Increase in Prisoner Population, above, n 14, xv.
[60] See D Brown, 'Notes on the Culture of Prison Informing' (1993) 5 Current Issues In Criminal Justice 1, 54-71
[61] A recent letter from NSW Commissioner of Corrective Services, Ron Woodham, to the Sydney Morning Herald, reveals the considerable resources devoted to drug detection operations 'Tough on drug detection' SMH 3 November 2003 Commissioner Woodham argues that 'NSW has one of the most stringent drugdetection practices in the world' Methods include
joint drug-Interdiction operations with police, drug detector dog-unit deployment, visitor searches,
comprehensive centre searches, dally searches in accommodation units, inmate strip searches before and after
visits; a unne analysis program randomly targeting all inmates and those suspected of drug usage
In the first six months this year there were 164,143 cell searches, 231 searches of the entire centre, 19,000 visitor searches and 150 vehicles were searched As a result, 294 inmates were found with drugs or contraband resulting in visit restrictions and police charges
[62] ICAC, Case Management in NSW Correctional Centres (1999)
[63] Crimes (Administration of Sentences) Act 1999 (NSW) s 13S (2) (f) (ii)
[64] NSW Legislative Council, above, n 14, 8
[65] The NSW Government has recently abolished the position of Inspector General of Prisons and transferred some of its functions into the increasingly overburdened and muzzled Ombudsman's Office, described by one commentator as having 'lost its teeth, and its bark muffled by new secrecy provisions, legalisms, and the exercise of discretion' Adele Honn, 'Another tough watchdog muzzled' Sydney Morning Herald 1-2 November 2003
[66] D Garland, The Culture of Control (2001), J Lea, Crime and Modernity (2002)
[67] A Bottoms, above, n 9
[68] D Garland, 'The Limits of the Sovereign State Strategies of Crime Control in Contemporary Society' (1996) 36 British Journal Of Criminology 4, 445-471
[69] I Taylor, Crime in Context (1999)
[70] P O'Malley, above, n 6, 175-196
[71] D Garland, "'Governmentality" and the problem of crime', (1997) 1 Theoretical Criminology 2, 173, N Rose, Powers of Freedom Reframing Political Thought (1999)
[72] U Bec Risk Society Towards a New Modernity (1992)
[73] M Feeley and J Smon, 'The New Penology Notes on the Emerging Strategy of Corrections and its Implications' (1992)
30 Criminology 4, 449-74; Feeley and Simon, 'Actuarial Justice The Emerging New Criminal Law' in D Nelken (ed) The Futures of Criminology (1994)
[74] J Simon, 'They Died with Their Boots On, The Boot Camp and the Limits of Modem Penality' (1995) 22 Social Justice 25-48, S Hallsworth, 'The Case for a Postmodern Penality' (2002) 6 Theoretical Criminology 2, 145-64
[75] J Young, The Exclusive Society (1999)
[76] L Wacquant 'Deadly Symbiosis When Ghetto and Prison Meet and Merge' (2001) 3 Punishment and Society 1, 95-133, L Wacquant. 'From Slavery to Mass Incarceration' (2002) New Left Review. January/February, 41-60
[77] J Pratt, 'Emotive and Ostentatious Punishment its decline and resurgence in modem society' (2000) Punishment and Society, 2, 417-40, J Pratt, Punishment and Civilisation (2002), B Vaughan, The Civilizing Process and the Janus-Face of Modem Punishment' (2000) 4 Theoretical Criminology 1, 71-91
[78] M Ryan, Penal Policy and Political Culture in England and Wales (2003)
[79] For a range of perspectives on the 'punitive turn' see J Pratt et al, (eds) The New Punitiveness Current Trends, Theories, Perspectives (forthcoming 2004)
[80] P O'Malley. 'Criminologies of Catastrophe? Understanding Criminal Justice on the Edge of the New Millennium' (2000) 33 ANZ Journal of Criminology 2, 164.
[81] See D Brown, "'There is life in the old dog yet" NSW penal practice since Nagle, the penal welfare complex and the punitive tum', ANZ Society of Criminology Conference, Sydney, October 2003, L Zedner, 'Dangers of Dystopias in Penal Theory' (2002) 22 Oxford Journal of Legal Studies 341-61
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