Kilroy, Debbie --- "#FreeHer: Reducing the number of women on remand - Debbie Kilroy OAM" [2020] PrecedentAULA 72; (2020) 161 Precedent 32

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#FREEHER

REDUCING THE NUMBER OF WOMEN ON REMAND

By Debbie Kilroy OAM

With women prisoners at high risk from COVID-19 due to their typically poor health, never has it been more critical to reduce the number of women in prison in Australia. COVID-19 has ravaged prison populations worldwide, and we are anxiously awaiting similar outbreaks in Australian prisons.

This article advocates for urgent decarceration and decolonisation of the criminal legal system, focused on reducing the number of women held on remand. It argues for the reallocation of public money wasted on prisons to providing the resources needed for communities to flourish and meet women’s needs.

BACKGROUND

Scale of the problem

Throughout Australia, women are being criminalised and imprisoned for increasingly minor alleged ‘crimes’. Yet increases in prisoner numbers do not correspond to any increase in crime.^[1] In Queensland, the number of women in prison has almost tripled over the past two decades:

• In 2000, there were a total of 273 women prisoners per day (5.8 per cent of the prison population);^[2]

• by 2008, this had risen to 425 women per day (7.7 per cent of the prison population);^[3] and

• by 2017–2018, the number had blown out to 773 women per day (9 per cent of the prison population).^[4]

In 2019, the Queensland Productivity Commission (QPC) undertook an inquiry into imprisonment and recidivism. It found that the increase in prisoner numbers is primarily driven by increasing rates of imprisonment on remand – particularly for women. Between 2012 and 2018 there was a 112 per cent increase in remand prisoners in Queensland.^[5]

According to the ABS, almost 40 per cent of women prisoners in Australia are on remand. According to the ABS, 39.4 per cent of Australian women prisoners were unsentenced in 2019. At 36.3 per cent, Queensland had a slightly lower rate of unsentenced imprisonment among women.^[6]

Aboriginal and Torres Strait Islander women are massively disproportionately imprisoned and are the fastest growing cohort in Australian prisons.^[7] First Nations women are 21.2 times more likely to be imprisoned in Australia compared with other women.^[8] Nationally, more than 40 per cent of Aboriginal and Torres Strait Islander women prisoners are on remand,^[9] and 42.5 per cent of First Nations women prisoners in 2019 were unsentenced (compared with 37.9 per cent of other women prisoners). In Queensland, First Nations women were also more likely than other women prisoners to be unsentenced (39.9 per cent compared with 34.5 per cent).^[10]

Key characteristics of women prisoners

Criminalised women are disproportionately from lower socio-economic backgrounds with pre-existing disadvantages. For example, the most recent Australian Institute of Health and Welfare (AIHW) study of prisoner health provides a useful snapshot of the social and economic circumstances of women entering and exiting prison:

• 54 per cent entering prison had dependent children;^[11]

• 33 per cent reported being homeless or living in short-term accommodation before entering prison;^[12]

• 32 per cent expected to be homeless upon release;^[13]

• 19 per cent of all prison entrants had completed Year 12;^[14] and

• 14 per cent entering prison reported having paid work before prison,^[15] and only 5 per cent had paid employment organised to commence within two weeks of release.^[16]

The AIHW study paints a dire picture of the health of women entering prison in 2018. It found that 45 per cent of women had experienced a chronic health condition such as arthritis, asthma, cancer, cardiovascular disease, or diabetes. Approximately 65 per cent reported a mental health condition and 31 per cent reported a history of self-harm. Seventy-four per cent of women reported that they had used illicit drugs in the previous 12 months. The AIHW also cited a 2016 study which reported that 28 per cent of women prison entrants had hepatitis C antibodies.^[17]

Australian research indicates that 70 to 90 per cent of women in prison have experienced family or domestic violence (DFV).^[18] Similarly, of the women who entered prison in 2018, 50 per cent self-identified as having been a victim of crime, with 8 per cent having been a victim of a sexual offence in the previous two years.^[19] Significantly, many women did not identify DFV as a crime.^[20] The NSW study noted that women’s refuges typically will not accept women who have experienced DV straight from prison – which places them at increased risk of returning to a violent setting post-release.^[21]

It is hardly surprising, then, that most criminalised women live with ongoing trauma, which also drives drug use that is to self-medicate their life long traumas.

CONSEQUENCES OF IMPRISONMENT ON REMAND

Imprisonment on remand is supposed to be a last resort where it is necessary to protect public order and safety.^[22] Yet, at Sisters Inside, we have seen women in Queensland remanded in custody for increasingly minor ‘offences’. Their imprisonment is driven by failures of the state, particularly in relation to the provision of essential housing and health services. The imprisonment of women is, in and of itself, criminogenic and a threat to public order and safety. Further, imprisonment commits the state to a growing social and economic burden into the future.

Imprisonment is expensive. Between 2016 and 2017, $4.2 billion was spent by the states and territories on prisons alone.^[23] This figure does not include the cost of other aspects of the carceral system including courts and police, and other systems of surveillance and control including the child ‘protection’ system and some aspects of the mental health system. It costs around $111,000 per year to keep someone in prison, with indirect costs close to $48,000 (excluding the potential long-term loss of productivity associated with difficulties accessing employment with a criminal record).^[24]

Despite this massive expenditure, prisons fail to achieve their stated goal of ‘rehabilitation’, and a significant amount is spent on imprisoning women on remand. According to the ABS, in 2019, 47.8 per cent of women prisoners had previously been in prison – 69.1 per cent of Aboriginal and Torres Strait Islander women prisoners compared with 37.5 per cent of other women prisoners.^[25] NSW research that same year found that 87 per cent of Aboriginal women in prison at the time of the study had been previously imprisoned, compared with 72 per cent of non-Aboriginal women.^[26]

Imprisonment is harmful, placing women at risk of retraumisation and their families at risk of intergenerational trauma. With most women prisoners also being survivors of violence, it is hardly surprising that ‘violence increases the risk and effects of imprisonment, and imprisonment increases the risk and effects of violence’.^[27] The violence implicit in the prison system through routine prison practices such as strip searching and use of solitary confinement can retraumatise women with lived experience of abuse, and exacerbate pre-existing mental health issues.

Imprisonment on remand has added dangers for women and their families. Unlike being taken into custody at sentencing, women on remand often have no time to get their affairs in order and do not know when they will be eligible for release. Unexpected and total separation from community can jeopardise employment, housing, healthcare and, most importantly, the custody and care of children. Sudden and traumatic separation from their mother can scar children for life, particularly if they witnessed their mother’s arrest. Separating mothers from their children perpetuates a cycle of disadvantage, intergenerational trauma and reimprisonment, particularly for Aboriginal and Torres Strait Islander families. Studies have repeatedly demonstrated the intergenerational consequences of parental imprisonment.^[28] The AIHW found that 18 per cent of prison entrants reported that one or more parents or carers had been in prison when they were a child.^[29] As most women prisoners are primary carers of dependent children prior to imprisonment, the imprisonment of mothers can be expected to have a multiplier effect on prisoner numbers in the next generation.

Imagine the fiscal savings if every woman currently imprisoned on remand was instead supported in the community. Imagine the social benefits if we could prevent the harm that even a few days in prison can do to a woman, her children and her community.

FACTORS INFLUENCING BAIL DECISIONS IN QUEENSLAND

The QPC noted that while crime rates are actually falling, most Australians think they have increased ‘a lot’ in recent years.^[30] Decisions about bail are highly discretionary and preferencing remand over bail is in line with ‘tough on crime’ rhetoric and policies. The dramatic increase in the number of women being imprisoned on remand in recent years suggests that bail decisions are highly susceptible to community influence, along with political attitudes and perceptions of risk.^[31]

Most of the other drivers of decreasing grants of bail relate to failures of state systems. All of these were recognised by the QPC, in particular:

• An increase in the number of people on remand for illicit drug charges,^[32] which increased by 374 per cent between 2011 and 2018.^[33] This is in contrast with an increase of only 31 per cent in reports to police of illicit drug use over the same period.^[34] The state has failed to provide adequate family-friendly, culturally-appropriate, gender-appropriate rehabilitation services.

• A lack of safe, stable and secure accommodation, particularly for survivors of family violence, and for people with mental health and substance abuse issues.^[35] Too often, unstable accommodation is held to make compliance with bail conditions more difficult. The state has failed to provide adequate access to social and public housing.

A history of bail breaches also weighs against a new grant of bail. In Queensland, between 2005 and 2016 the instance of breach of bail as a person’s most serious offence increased by 67 per cent.^[36] Breaches of bail conditions are increasingly policed and are a significant contributor to remand numbers.^[37] Breaches of bail are often precipitated by onerous bail conditions that are not responsive to women’s circumstances and capacity. Many women are constrained by their parenting responsibilities, job search requirements and poverty. In particular, many cannot afford a mobile phone and the cost of meeting attendance requirements (such as public transport).

REDUCING REMAND NUMBERS: THE SISTERS INSIDE APPROACH

Sisters Inside believes that the best way to build a safe and secure community is to progressively decarcerate society through addressing the factors which contribute to criminalisation. Given the social and economic harm prisons cause, our ultimate goal is the abolition of the prison industrial complex. At a day-to-day level, all of our programs and services aim to reduce the number of women in prison – to get women out of prison, and to keep them out.

Sisters Inside has a long history of success in reducing prison return rates through supporting women to access the services they need, particularly safe, secure and affordable housing, and trauma-informed, culturally-competent, gender-appropriate supports and other health services.

In marked contrast with the current overall return rates of 55 per cent of women prisoners (and almost 70 per cent of First Nations women prisoners) in Queensland,^[38] Sisters Inside can demonstrate prison return rates as low as 4 per cent among program participants. For example, an independent evaluation of the Sisters Inside Special Circumstances Court Diversion Program (SCC Program)^[39] reported a 96 per cent success rate in diverting women from prison. Every woman involved in the program had a history of homelessness and/or mental illness and/or substance abuse. Yet 239 of the 240 women involved in the SCC Program between 2007 and 2010 had a reduced rate of ‘offending’ during and following their involvement.

Sisters Inside works within the constraints of the carceral system and available services to secure bail for women. Our goal is to enable the negotiation of sensible, practical bail conditions which are consistent with the demands on women’s time: from Centrelink and job service providers to retain their income support; from probation/parole officers to maintain their freedom; and from child protection authorities to continue or improve access to their children. Appropriate bail can lead to positive gains in relation to securing housing, drug rehabilitation, trauma support, mental health treatment, family reunification and establishing a life free from violence. These gains can also be taken into account at sentencing.

Bail support is primarily offered through two Sisters Inside programs – our Decarceration Program in South East Queensland, and our Supreme Court Bail (SCB) Support Program which is available in all Queensland women’s prisons.

Supreme Court Bail (SCB) Support Program

Since 2003, Sisters Inside has assisted women prisoners in making bail applications in the Supreme Court of Queensland. Initially this was an unfunded program, jointly run between Sisters Inside and University of Queensland law students and volunteer graduates, providing support and pro-bono legal representation to women prisoners applying for Supreme Court bail. In 2016, in response to the exponential increase in the number of women on remand, Sisters Inside was funded to employ two full-time workers to support women in the Brisbane Women’s Correctional Centre, Numinbah Correctional Centre and Townsville Women’s Correctional Centre. In 2019, further funding for another full-time worker was provided to extend the service to women in the Southern Queensland Correctional Centre.

The SCB support workers attend prisons weekly and invite all women on remand to have their eligibility assessed for the SCB program. Eligibility is assessed based on the charges, criminal history (including breaches of bail), likely sentence and approximate parole eligibility date (which is estimated considering the likely length of sentence if the woman pleads or is found guilty). The workers also train and support women prisoners as peer bail clerks who work alongside eligible women prisoners to assist them to compile the documentation needed for their SCB application.

Every woman has different needs that must be addressed to optimise her access to bail and enable her to stay out of prison. Sisters Inside’s support typically focuses on ensuring each woman’s access to housing, drug rehabilitation, cultural healing, trauma or anti-violence counselling and/or health services, in readiness for her release on bail. The SCB worker also offers to connect women with relevant Sisters Inside in-prison and post-release support programs. Participation in the program is voluntary and does not affect the woman’s chosen legal representation.

At the hearing, I seek leave to appear as a McKenzie friend and advocate with the woman to craft sensible bail conditions.^[40] Evidence of engagement with these supports make participants a better candidate for bail, as demonstrated since 2003 with 100 per cent of SCB applications supported by Sisters Inside achieving successful outcomes. This is due to the holistic support available to women at each stage of the bail application process and post-release, and the success rate among women released on bail through this program.

In our experience, the Supreme Court justices are positively disposed to applications supported by Sisters Inside and are likely to develop individualised and realistic bail conditions in collaboration with the SCB support worker. For example, if a primary cause of the woman’s criminalisation is substance addiction, then appropriate bail conditions might involve completing a drug rehabilitation program. Sisters Inside will contribute supporting documentation which can include booking details for accommodation, correspondence with the drug rehabilitation facility confirming the plan, and letters of support from the staff who will facilitate and encourage the completion of these goals.

The Sisters Inside SCB program increases women’s prospects of Supreme Court bail. Women can make an application without assistance through ‘bail by mail’ however these applications have a low success rate. Legal Aid funding for Supreme Court bail applications has stringent requirements that preclude most applicants. Most women in prison cannot afford to privately fund legal representation – it would cost upwards of $5,000 to fund a solicitor and/or barrister for a bail application. The SCB program addresses these gaps.

Decarceration Program

The Sisters Inside Decarceration Program has been running for less than 18 months. The program intervenes early to stop women from being imprisoned on remand, offering support as soon as possible after their arrest. Our three workers mainly support women in the Roma Street watch-house in Brisbane, in the Brisbane Magistrates Courts, and in the community.

Every weekday morning, at least two of the three program workers attend the watch-house. If a woman would like support, a program worker makes the swift arrangements needed to improve the woman’s prospects for bail. The worker may also advocate for the woman’s right to items such as sanitary products or medication within the watch-house as required.

The Decarceration Program worker then attends court to provide the woman with support, including working alongside community legal services (sometimes ‘translating’ legal information into plain English) to help the woman to understand her charges and the conditions of any court orders.

If the woman is granted bail (or a community-based sentence), the Decarceration Program can provide ongoing support in the community. This assists the woman to meet the conditions of her bail or community-based sentence. Women often require other types of support such as finding long-term accommodation, attending appointments, or appearing in court on other matters. Wider support is generally provided through other Sisters Inside programs^[41]. In accordance with our model of service,^[42] Sisters Inside will continue to provide support for the services each woman wants and needs for as long as she feels is necessary.

Decarceration Program workers focus on providing whatever support each woman needs in order to have the best possible chance of receiving and/or maintaining bail. This can include helping to arrange accommodation, apply for Centrelink benefits, undertake safety planning (to escape DFV), access identification, arrange contact with children, acquire legal representation, or connect with community. It can involve referral to Sisters Inside programs or other agencies to access education/training/employment, health, rehabilitation, parenting, healing, arts or cultural services. It often also includes very practical support – food boxes, grocery vouchers, public transport cards, transport, a mobile phone, clothes or furniture. The program has brokerage funds which can be critical in meeting these needs, especially the cost of emergency accommodation for women who would otherwise be at risk of imprisonment due to homelessness.

Early signs are promising. During its first 15 months of operation, the Decarceration Program worked with 495 women (25 per cent of whom were Aboriginal or Torres Strait Islander). The program supported a total of 139 women to receive bail or a community-based sentence and of these, 84 per cent have successfully met their bail conditions.

THE WAY FORWARD

If graded, prisons would score a massive fail. The enormous rate of return to prison, across Australia and internationally, is clear evidence of the failure of this model to address perceived crime and the multi-generational harm it causes. There is mounting evidence of the relative effectiveness of non-carceral alternatives to prisons. For example, evaluations of Sisters Inside’s programs and services continue to demonstrate the success of an approach that supports women to address the issues that contributed to their criminalisation – particularly lack of housing, poor health services and a lived experience of violence.

Imprisonment on remand is an inefficient and ineffective use of our social and economic resources and is extremely harmful to women, their families and their communities. The ‘tough on crime’ slogans regularly promoted by politicians would be more accurately described as ‘tough on community’ or ‘tough on children’.

Services such as the Sisters Inside SCB and Decarceration programs play a valuable role. But their evident successes are achieved within severe constraints. Within the carceral system, unfair legislation and policies operate to reduce grants of bail to disadvantaged women, while police and prison budgets are seemingly unlimited. Outside the carceral system, the resources required to enable women and their children to live safely in the community are repeatedly slashed.

It makes both social and economic sense to decarcerate and redirect funds from the harmful carceral system to helpful non-carceral alternatives. Resources must be directed away from imprisoning people on remand and policing bail breaches. With approximately one-third of Australian prisoners currently on remand, imagine if the $4.2 billion annual expenditure on prisons detailed above had been spent on public housing and community-driven health services instead? This investment could already be reaping rewards by enabling women and men to extricate themselves from the criminal legal system. We could be further on the pathway toward a world in which the prison industrial complex is no longer needed.

Debbie Kilroy OAM is principal lawyer at Kilroy and Callaghan Lawyers, Brisbane which specialises in criminal law. She is also CEO of Sisters Inside, a community organisation driven by criminalised women that advocates for the human rights of women, girls, and their families affected by the criminal legal system, and provides services to meet their needs. PHONE [phone] EMAIL [e-mail].

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^[1] For example, in Queensland there have been significant decreases in key ‘crime’ categories over the past decade. Queensland Productivity Commission (QPC), Inquiry into Imprisonment and Recidivism (Final report, August 2019) 34.

^[2] UNSW Comparative Youth Penalty Project, Women in prison Queensland: A statistical and policy account 1970–2010 <https://www.cypp.unsw.edu.au/women-prison-queensland-1970-2010>.

^[3] Ibid.

^[4] Productivity Commission (PC), Report on Government Services 2019 (Report, 2019) pt C, ch 8, table 8A:4 <https://www.pc.gov.au/research/ongoing/report-on-government-services/2019/justice/corrective-services>.

^[5] QPC, above note 1, 309–10.

^[6] Australian Bureau of Statistics (ABS), Prisoners in Australia 2019 (2019) table 30, <https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/2019>.

^[7] E Baldry et al, ‘A predictable and preventable path: Aboriginal people with mental and cognitive disabilities in the criminal justice system’ in First Peoples Disability Justice Consortium, Aboriginal and Torres Strait Islander Perspectives on the Recurrent and Indefinite Detention of People with Cognitive and Psychiatric Impairment: A Submission to the Senate Inquiry on the Indefinite Detention of People with Cognitive and Psychiatric Impairment, 2016, 11.

^[8] Australian Law Reform Commission (ALRC), Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report, 28 March 2018).

^[9] ABS, above note 6, table 30.

^[10] Ibid.

^[11] Australian Institute of Health and Welfare (AIHW), The Health of Australia’s Prisoners 2018 (Final report, 30 May 2019) 14.

^[12] Ibid, 18.

^[13] Ibid, 24.

^[14] Ibid, 16.

^[15] Ibid, 22.

^[16] Ibid, 19.

^[17] AIHW, above note 11, vi–viii.

^[18] Australia’s National Research Organisation for Women’s Safety (ANROWS), Women’s Imprisonment and Domestic, Family and Sexual Violence: Research Synthesis (Report, 2020) 2.

^[19] Crime Statistics Agency, ‘Characteristics and offending of women in prison in Victoria revealed in CSA research’, CSA, (Media release, 7 November 2019) <https://www.crimestatistics.vic.gov.au/media-centre/media-releases/characteristics-and-offending-of-women-in-prison-in-victoria-revealed-in>.

^[20] Ibid.

^[21] Keeping Women Out of Prison Coalition (KWOOP), Profile of Women in Prison (Report, December 2019) <https://www.sydneycommunityfoundation.org.au/find_a_fund/kwoop-keeping-women-out-of-prison/>.

^[22] Bail Act 1980 (Qld), s16(1).

^[23] PC, above note 4, table 8A:1.

^[24] Queensland Sentencing Advisory Council (QSAC), Sentencing Spotlight: Breach of Bail Offences (Report, November 2017) 30.

^[25] ABS, above note 6, table 29.

^[26] KWOOP, above note 21.

^[27] ANROWS, above note 18, 2.

^[28] AIHW, above note 11, 14.

^[29] Ibid, v.

^[30] QPC, above note 1, 30.

^[31] Ibid, 314.

^[32] Ibid, 313.

^[33] Ibid, 312.

^[34] Ibid, 32.

^[35] Ibid, 316.

^[36] QSAC, above note 24, 4.

^[37] QPC, above note 1, 311.

^[38] ABS, above note 6, table 29.

^[39] S Quixley, How We Do It: The SIS SCC Program (Sisters Inside Special Circumstances Court Diversion Program) (Report, 2011) 21–2.

^[40] McKenzie v McKenzie [1970] 3 All ER 1034.

^[41] Including our Health Support Program, Building on Women’s Strengths (BOWS) Program for mums and kids, and youth skills/support/art programs.

^[42] Sisters Inside, Inclusive Support: A guide to our model of service for new Sisters Inside Workers (Report, 2019).