Explainer: how will the emergency release of NSW prisoners due to coronavirus work?



AAP/Jono Searle

Thalia Anthony, University of Technology Sydney

The New South Wales government has passed emergency legislation providing the Corrections Commissioner with powers to release some of the state’s 14,034 prisoners.

This legislation was introduced in the wake of the global release of prisoners to cope with the COVID-19 pandemic. Most recently, the United States has begun to release thousands of prisoners across four states.




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Legislation to release prisoners in NSW was drafted amid the growing number of cases of COVID-19 infections in prison populations, including staff. The overcrowding and poor sanitation and health conditions in prisons make them ripe for the rapid spread of disease.

Long Bay jail in Sydney was locked down this week when two prison staff tested positive for COVID-19 and several inmates displayed symptoms. The higher incidence of chronic health conditions among inmates predisposes them to suffer serious and critical outcomes from the virus.

Why is legislation needed?

The NSW government has introduced the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) to address the escalation of COVID-19 cases in the state.

NSW has the highest per capita rate in Australia, with more than 1,000 cases as of March 25. The emergency legislation provides for the release of prisoners. The provision will apply for a minimum of six months and may apply for up to 12 months under regulations.

This emergency provision is concerned with protecting vulnerable inmates and releasing prisoners who pose a low risk to the community. Attorney-General Mark Speakman said the legislation was designed to protect the health of inmates and frontline prison workers as well as the “good order and security” of prisons.

Freeing up prison space through the early release of prisoners will enable the remaining prisoners to be isolated, to prevent or control an outbreak. It also allows the health needs of remaining inmates to be better addressed.

We have seen what happens without this action in prisons overseas: infection spreads rapidly and foments unrest among prisoners. In Italy, prisoner fears that they faced a death sentence because of COVID-19 resulted in riots in 23 Italian prisons and the deaths of 12 prisoners.

Who can be released under the legislation?

The COVID-19 legislation allows for the release of prisoners who belong to a prescribed “class of inmates”. They may be defined according to their health, vulnerability, age, offence, period before the end of the prison term and any other matter as set down in regulations.

Serious offenders are excluded. This not only rules out those specifically mentioned, including prisoners convicted of murder, serious sex offences and terrorism, but also high-level drug and property offenders.

The Corrections Commissioner will determine an individual’s release where it is “reasonably necessary” due to “the risk to public health or to the good order and security of correctional premises”. Community safety and the prisoner’s access to suitable accommodation outside prison are necessary aspects of the decision-making. Other consideration are whether the offender has previously committed a domestic violence offence and the impact of the release on the victims.

Prisoners will be released on parole and subject to standard parole conditions. They will, for example, have to be of good behaviour and not reoffend, as well as any additional conditions determined by the commissioner, including home detention and electronic monitoring.

Does this cover all prisoners?

There are some concerning omissions from this legislation if it is to achieve its objectives of protecting inmates, prison staff and the community.

First, it is not clear whether it will apply to youth detention centres. This vulnerable group requires special protection in this period when they are denied visits from their parents, family and lawyers, have fears about COVID-19 infection and most likely are unaware of their rights to health care.

The legislation also does not refer to remand prisoners, who constitute over one-third of prisoners in NSW. The legislation explicitly refers to parole, rather than determinations on bail.

Administrators must set down regulations to include this group in the prescribed “class of inmates” for release. Otherwise, those most entitled to liberty – who have not been convicted or sentenced – will be left in prison to suffer through the pandemic. The suspension of new jury trials will mean they spend further time in prisons until well after the COVID-19 crisis.

Critically, the legislation is silent on people who are facing a prison sentence or remand order, but not yet in prisons. For those people, there is no legislation urging the courts to consider the coronavirus pandemic in promoting non-prison sentences or allowing bail applications.




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Over the past week, lawyers have rushed to collect evidence on the effect of the pandemic on prisoners to support their clients’ pleas not to be imprisoned. Supreme Courts in Victoria and the ACT have accepted the relevance of COVID-19 in bail applications. But there is a lack of guidance elsewhere on bail and sentencing, increasing the risk of more people being sent into the prison system.

Schedule 1 of the emergency legislation granted controversial powers to the attorney-general to alter the bail laws by regulation during the crisis. The NSW government has indicated it intends to use these powers to deliver changes on bail to prevent more prisoners entering jail on remand. The timing and scope of these changes have not been detailed, but are certainly critical to preventing the pandemic entering our prisons.

Not only would the entry of new inmates add to the burden on prisons, it could also create a devastating situation where unknown carriers of the coronavirus enter the system.

While there are no laws to limit courts ordering imprisonment during the pandemic, Corrections Commissioner Peter Severin could use his discretion to review the release of prisoners at the point of reception. In other words, the process between the court order and physical entry into a prison cell. Regulations should clarify the use of the commissioner’s power at this point to prevent unnecessary entry of new prisoners.

Does it strike the right balance in community protection?

The immediate release of NSW prisoners will protect prisoners from greater exposure to COVID-19, limit the outbreak of the virus in prisons and minimise the spread between prison and the community.

But there is more to be done. The release of less serious offenders should not be based on the pre-pandemic criteria of the risk of the individual. These criteria often discriminate against Indigenous people, those with mental health issues and socio-economically deprived. Rather, it should be based on the health needs of prisoners and the interests of community safety in managing the health risk.

Given that many prisoners have poor health and are serving short prison terms, the broad use of the commissioner’s discretion could result in thousands of prisoners being released from NSW prisons.

Ultimately, the legislation will only work to minimise the worst effects of COVID-19 in prisons if the commissioner exercises his discretion widely to prevent overcrowding and take the load off already scarce health services in prisons.The Conversation

Thalia Anthony, Professor in Law, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

NSW and Victoria announce ‘shutdowns’, as federal government widens and ramps up income support


Michelle Grattan, University of Canberra

NSW and Victoria are shutting down non-essential services and activities over the next 48 hours, and the federal government has announced it will widen eligibility and increase income support as the coronavirus crisis escalates.

Premier Gladys Berejiklian said the NSW shutdown would leave supermarkets, petrol stations , pharmacies, convenience stores, freight and logistics, and home deliveries among many services remaining open.

Schools would be open Monday but Berejiklian flagged she would have more to say about this on Monday morning.

Victorian premier Daniel Andrews announced a similar shutdown and is bringing forward school holidays to start Tuesday, with a decision on whether schools will reopen to be taken on medical advice.

Andrews said the shutdown decision was not taken lightly but “it’s clear that if we don’t take this step, more Victorians will contract coronavirus, our hospitals will be overwhelmed and more Victorians will die”.

Scott Morrison told Australians not to undertake unnecessary domestic travel, including in the coming school holidays.




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“All non-essential travel should be cancelled,” he said bluntly at a Sunday news conference where he unveiled a $66.1 billion second federal package.

South Australia is closing its border from 4 pm Tuesday, establishing 12 border crossings, and requiring travellers to sign a declaration to self-isolate for a fortnight.

Western Australia also announced a closure with Premier Mark McGowan saying the controls “will apply to all access points, roads, air, rail and sea. Unless exempted, arrivals from interstate will be ordered to self isolate for 14 days”. “Western Australia is now in a war,” he said.

Tasmania and the Northern Territory have already acted on their borders.

The federal-state national cabinet’s meeting has been brought forward from Tuesday night to Sunday night, to discuss ever-toughening measures to handle the fast spread of the virus. But NSW and Victoria came out with their announcements ahead of that meeting.

The federal government’s second economic package, which has ten separate measures, will provide support for households – including those on income support, casual workers, sole traders, and retirees – and will also seek to prop up businesses with cash, loans and regulatory protection.

The government will temporarily widen eligibility for income support and give a new short term “coronavirus supplement” of $550 a fortnight.

The new supplement will go to both existing and new recipients of the JobSeeker Payment, Youth Allowance jobseeker, Parenting Payment, Farm Household Allowance and Special Benefit. It available to sole traders and casual workers who meet the income test.

The supplement means a doubling of money received by someone on a JobSeeker payment for a single person with no dependants, which is $565.70 a fortnight.

It will be paid for six months and people will receive the full $550 on top of their ordinary payment. The cost will be $14.1 billion and up to 5000 extra staff will be employed to help deliver it.

Among other measures are a second one-off $750 payment to low income households and increased access to superannuation, as the government attempts to cushion people and businesses in a collapsing economy, which will go into a further tailspin with the shutdowns.

Even before the previously-announced $750 payment – to go out at the end of this month – is dispatched, the government has decided on the second payment, made from July 13.

It will go to those on social security and veteran income support and eligible concession card holders – except for those receiving an income support payment that is eligible for the “coronavirus supplement”.

About five million people will get this payment, half of them pensioners, at a cost of $4 billion.

The relaxation of superannuation arrangements will mean people in financial stress as a result of coronavirus will be able to access up to $10,000 of their super in each of this financial year and 2020-21. This will cost $1.2 billion. Minimum drawdown requirements are also being reduced.

The deeming rate used to assess income from financial assets for the pension income test is being reduced to reflect last week’s Reserve Bank interest rate cuts. This will benefit about 900,000 on income support and cost $876 million.

On the business side, the package also includes cash payments of up to $100,000 to small and medium-sized businesses and not-for-profit enterprises, with turnovers of less than $50 million, as well as a loan guarantee scheme for SMEs.

Among regulatory protections will be changes to bankruptcy rules. There will be a temporary increase in the threshold at which creditors can issue a statutory demand on a company and the time companies have to respond.

The government’s aim in its business support is to keep as many enterprises as possible afloat, with as many workers as possible still linked to them, so they can restart operations and reassemble their workforces after the crisis has passed.

Finance Minister Mathias Cormann talked about businesses going into “hibernation” .

Morrison said the government’s package focused on those “in the front line”, feeling “the first blows” of the economic impact of the virus. “We will be supercharging our safety net and supporting the most vulnerable to the impacts of the crisis, those who will feel those first blows.”

Federal and state governments are alarmed that many citizens are not taking warnings and advice seriously enough. After people swarmed to Bondi beach on Friday, a crackdown on numbers was imposed on Saturday.

Morrison was stern in his messaging, saying social distancing “is one of our most, if not our most, important weapon against the spread of the coronavirus”.

He said what had happened at Bondi “was not OK, and served as a message to federal and state leaders that too many Australians are not taking these issues seriously enough.

“So the measures that we will be considering tonight means that state premiers and chief ministers may have to take far more draconian measures to enforce social distancing, particularly in areas of outbreaks, than might otherwise be the case”.

He said what might be needed in a part of Sydney might not be necessary in rural NSW or Perth.

Parliament, with restricted numbers, meets on Monday to pass the stimulus legislation.

The AFL announced late Sunday it was suspending its season. It will review the situation at the end of May. It said it was facing the biggest financial crisis in its history.

As at 6.30am Sunday, there had been 1,098 COVID-19 cases in Australia, with 224 new cases since 6.30am Saturday.




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The Conversation


Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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