In the interest of protecting the general population from the spread of COVID19, the NSW government has taken unprecedented action. The NSW government has now introduced the COVID19 Legislation Amendment (Emergency Measures) Bill in response to escalating number of cases of the COVID19 virus in prisons.
The early release of prisoners will be done with a strict evaluation of the inmates released and monitoring to ensure the safety of others in the community. No high-risk prisoners will be released. These actions will be taken in the interest of reducing overcrowding in prisons and protecting prisoners, prison staff and communities from further cases of COVID19.
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- In response to the growing number of COVID19 cases in prison populations, legislation was drafted to allow the early release of prisoners in NSW. Prisons are an opportune place for the spread of disease due to the poor sanitation, overcrowding and prior health conditions of inmates.
- The NSW government has now introduced new legislation to address the escalation of COVID19 cases. The COVID19 Legislation Amendment (Emergency Measures) Bill was introduced to the State Parliament on the 24th of March 2020 and was passed by Parliament on the same date. The COVID19 Legislation Amendment (Emergency Measures) Bill 2020 was assented on the 25th of March 2020.
- The extraordinary powers given by this legislation are applicable only to vulnerable and low-risk prisoners, and they will be subject to extremely severe parole restrictions.
- It’s important to note, the early release of prisoner’s is not intended to create a risk for communities, rather it is intended to protect them and the prisoners themselves from the spread of COVID19.
The NSW government is preparing for the early release of prisoners in response to the current COVID19 pandemic sweeping the world. NSW has approximately 13,000 prisoners, some of whom will be released due to the risk COVID19 poses to the health and security of prisoners and communities.
In response to the growing number of COVID19 cases in prison populations, legislation was drafted to allow the early release of prisoners in NSW. Prisons are an opportune place for the spread of disease due to the poor sanitation, overcrowding and prior health conditions of inmates. The risk of the spread of COVID19 in this environment is high for prisoners and prison staff. 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 prisons and the community.
The NSW government has now introduced new legislation to address the escalation of COVID19 cases. The COVID19 Legislation Amendment (Emergency Measures) Bill was introduced to the State Parliament on the 24th of March 2020 and was passed by Parliament on the same date. The COVID19 Legislation Amendment (Emergency Measures) Bill was assented on the 25th of March 2020. The Long Title of the bill is: An Act to amend a number of Acts to implement emergency measures as a result of the COVID-19 pandemic.
The extraordinary powers this legislation gives apply only to vulnerable and low-risk prisoners, and they will be subject to extremely severe parole restrictions. The new legislation will allow NSW’s Corrective Services Commissioner Peter Severin to make orders allowing prisoners to be released early on parole. The Commissioner must be satisfied that it is “reasonably necessary” to release them due to the risk of COVID19.
Given that many prisoners have poor health and are serving short prison sentences, the broad use of the Commissioner’s discretion could result in thousands of prisoners being released from NSW prisons. Andrew Christopoulos, National President of the Australian Lawyers Alliance has said “The risk of an outbreak of COVID-19 in a prison or detention centre is extremely serious …. this is potentially a human rights disaster for Australia, and governments must act urgently.”
Ultimately, the legislation will only work to minimise the worst effects of COVID19 in prisons if the Commissioner exercises his discretion widely to take the load off already scarce health services in prisons and prevent overcrowding.
There are regulations in place outlining what parameters must be met for a prisoner to be eligible for early release. There is a particular “class of inmates” who are defined by various factors, certain prisoners will be ineligible for early release due to the nature of their offence. Some offences that render a prisoner ineligible for early release include those serving a life sentence, any sentence for murder, terrorism or a serious sex offence. Before making an early release order, the Commissioner must consider factors including the risks the individual will pose to community safety and whether the individual has a previous conviction relating to domestic violence.
It’s important to note, the early release of prisoner’s is not intended to create a risk for communities, rather it is intended to protect them and the prisoners themselves from the spread of COVID19. Early release prisoner will be subject to strict parole conditions and potentially other requirements such as electronic monitoring and home detention. This is an effort to ensure the protection of everyone and allow people to feel safe with these changes.
NSW has the highest per capita rate of COVID19 cases in Australia. The emergency legislation was introduced in response to these mounting figures. When he introduced the bill to Parliament, Attorney-General Mark Speakman said it was designed to protect the health of inmates and staff. Attorney-General Mark Speakman stated that the “extraordinary measures are only to be used to respond to the threat of COVID19, and would allow the Commissioner .. to prioritise vulnerable offenders and others who pose a low risk to the community for consideration for conditional release.” COVID19 has affected every aspect of life, it was an unpredictable event that has forced us to adapt, “The bill seeks to provide us with powers we’ll hope we never have to use but the evolution of the pandemic may require it,” he said.
The provision on the early release of prisoners will apply for a minimum of six months and may possibly apply for a period of up to 12 months under regulations. Barrister and Australian Lawyers Alliance national spokesman Greg Barns said the alliance “welcomes NSW’s lead on reducing the quite obvious risk that COVID-19 poses for prisons around Australia”. He has said, “We would urge every state and territory to follow NSW’s lead and immediately pass similar legislation,”.
It is natural for the general public to be concerned about the early release of prisoners and how it will affect the safety of themselves and their loved ones, however, the intention of this legislation is to keep everyone safe. It’s important to understand that around a third of prisoners are currently on remand (unsentenced). They are either awaiting trial or sentencing. It is also necessary to understand that not all prisoners have been convicted of violent crimes. There is a significant portion of the prison population that pose little risk of violence to their communities and these are the prisoners who will meet the strict requirements for release. The COVID19 Legislation Amendment (Emergency Measures) Bill has been created to ensure the protection of all people from the spread of COVID19. Releasing prisoners early will contribute to this goal whilst aiming to ensure the inmates released are carefully reviewed to ensure there is no risk to the general public.
ABOUT LUISA GAETANI:
Luisa is a Senior Associate at Coutts Lawyers & Conveyancers and head of our Family and Criminal Law divisions. Luisa has practiced solely in the areas of criminal and family law. It is her sensitive yet pragmatic approach that has allowed her to develop a strong rapport and build trusting relationships with her clients.
Should a client’s matter proceed to court, Luisa has the skillset and experience to assist her clients through this process and where required, will draw upon her network of barristers to further benefit her client’s outcomes.
For further information please don’t hesitate to contact:
Luisa Gaetani
Senior Associate
luisa@couttslegal.com.au
1300 268 887
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
