COVID-19 and Custody – Calls for Release

25 Mar 2020

There has not been anything in the bill nor the explanatory memoranda to address bail in the current uncertain circumstances and there are calls within the legal fraternity that the current legislative changes contemplated do not go far enough. As it stands, there is a significant population in custody that have not been found guilty of a crime and they should be released.

We are all aware of the statistics in respect of disproportionate incarceration of Indigenous people, we also know that a significant percentage of those in custody are there on remand and that – again – Indigenous people are disproportionately refused bail and languish on remand.

We also know that often times, the public health risk associated with prisons can be likened to a cruise ship in the sense that there is a static population where the spread of infection is of a high risk and creates significant vulnerability for those within the population.

These people are particularly vulnerable, have no control over their ability to isolate and avoid transmission or infection and the health care afforded in such institutions is lacking with the 2019 report from the Australian Institute of Health and Welfare into prisoner health painting a bleak picture.

This disproportionate incarceration of Indigenous people into a system not only notoriously dangerous for Indigenous people from a welfare perspective, is startling from a health perspective but when a situation presents like the current COVID-19 Global Pandemic – it is a distressing reality we are currently faced with which is why our staunchest advocates are leading the charge to call for the release of prisoners.

The National peak body for Aboriginal and Torres Strait Islander Legal Services (NATSILS) met yesterday to call for urgent action from the Prime Minister and State and Territory leaders for the safety and wellbeing of Aboriginal and Torres Strait Islander people in prisons and the justice system from COVID-19. NATSILS met with Minister Wyatt and representatives from the Attorney General’s Department and discussed the Federal Government’s response to COVID-19.

NATSILS members made the following statement:

“We, the Aboriginal and Torres Strait Islander Legal Services (ATSILS), are calling for national leadership from the Prime Minister, Attorney General and all levels of State and Territory Government to take immediate action to protect Aboriginal and Torres Strait Islander people in prison, including early release. Most of our people in prison have chronic health issues and are living with disability; they are most at risk. With the over-representation of our people in prison, our lives are on the line.

People in prison are extremely vulnerable to COVID-19. This is why we are calling for immediate early release, particularly people who are on remand, women who are victims of family violence and sentenced for lesser offences like fines and public order offences, young people and those most at risk of transmitting COVID-19, like elderly and people with health conditions. At all costs, we must prevent any Aboriginal deaths in custody from COVID-19. 

Authorities must be transparent and avoid blanket lockdowns or solitary confinement, especially for young people. Our people must have safe access to their family and visitors, adequate medical care, COVID-19 testing and particularly legal support. More must be done to facilitate this, including access to video facilities. ATSILS are doing all we can to provide our vital services to our people during this time, whilst containing the spread of COVID-19. 

Globally, governments are using early release to contain the virus, including Ireland’s proposal to release prisoners with less than 12 months to serve, and elsewhere in the United States and United Kingdom.

We are concerned about the impact of policing, the closure and delay of courts during the COVID-19 pandemic. There must be more focus on alternatives to imprisonment, on diversion, and on providing communities the support that we need to survive this pandemic. 

We are also concerned about the civil law impacts for our people, particularly on fines and tenancy, administrative proceedings, and the impact on child protection and law. There are measures such as freezing rental and rate increases that governments can take. 

We discussed with Minister Wyatt the impact of COVID-19 in remote communities. Right now, our lives depend on having full access to social safety nets without any strings attached. Bush courts and circuit courts have now stopped, and ATSILS are working on ways to provide services without face to face contact to remote communities. 

When courts resume, this will place unprecedented need on our legal services. We require urgent additional resources to adequately respond to this pandemic. 

This pandemic will have a huge impact on our communities, our lives, and our services for many months to come. It is vital that the Prime Minister and all levels of Government act now to show leadership for First Nations people.

Speaking to IndigenousX, Roxanne Moore – Executive Officer for NATSILS, said “COVID-19 will spread fast in prisons and our mob are most vulnerable. Our people in prison have more chronic health issues and disability than others. Many of our people are locked up for minor offences, bail issues and our women in prison are survivors of family violence. We must do everything we can to prevent Aboriginal deaths in custody from COVID-19. We need early release and alternatives to imprisonment for First Nations people who are the most vulnerable, for those on remand, for minor offences and those with little time left on their sentence. Our lives are on the line.”

New South Wales has been the first State to (somewhat) answer to the call to action, currently in the process of legislative change in the context of COVID-19 to empower the corrections minister to release or parole inmates who are nearing the end of their sentences, or considered on case-by-case basis.

There has not been anything in the bill nor the explanatory memoranda to address bail in the current uncertain circumstances and there are calls within the legal fraternity that the current legislative changes contemplated do not go far enough.

As it stands, there is a significant population in custody that have not been found guilty of a crime and they should be released.

The Aboriginal Legal Service has petitioned the government stating, “All people who serving a sentence for a non-violent offence or are un-sentenced must be released until the COVID-19 crisis has passed.  Internationally, Iran has released of 85,000 prisoners who are not a risk to the community and Ireland will release people with less than 12 months to serve. The United States and United Kingdom are following.

Each day there is an influx of workers and corrections and allied workers to prisons and youth detention centres. We need bail for our people on remand and to prevent any new people entering prisons.”

You can support the ALS petition here.

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