Can legislation alone end brutality in Australian prisons?
29 Nov 2012
Honorary Associate Professor Linda English says that changing a culture
of brutality in closed institutions is rarely achieved through the
imposition of additional rules, training and surveillance, but is grounded in the alignment of institutional and personal values.
Last week's disturbing video images of brutal treatment being meted out to a young man by prison officers and revelations that there may be as many as a thousand so called "use of force" cases each year in New South Wales again highlight the cruelty inherent in Australian jails.
Western Australia is the only state in Australia to have an independent inspector of prisons whose reports are tabled in parliament. In all other states, conditions in prisons remain effectively unexamined as correctional services departments themselves oversee what goes on in correctional facilities.
Following an exhaustive review, the NSW State Ombudsman earlier this year recommended a raft of new regulations to end the brutality and legislation was subsequently introduced into the NSW Parliament. But, very little seems to have changed at Corrective Services NSW and in other jurisdictions, and the question remains, can legislation end a culture of prison brutality in Australia's prisons?
Shortly before the Ombudsman's recommendations were made public, the Attorney-General alluded to a number of troubling aspects of the NSW justice system: a lack of public confidence in the system itself; no guarantee of the safety and security of officers and prisoners; unacceptable operating standards and rehabilitation outcomes; and a management culture hostile to whistleblowers and resistant to increased transparency and accountability.
The NSW Government's new legislation establishing an independent inspectorate of custodial services is modelled on the WA initiative. Changes in WA prisons over the past 10 years suggest that getting the legislation right is a fundamental first step to making governments accountable for custodial services. The passage of the Inspector of Custodial Services Bill through the parliament on August 16 represents the first real attempt to hold Corrective Services NSW publicly accountable for custodial services.
But can the legislation alone produce the outcomes trumpeted by the Attorney-General?
The NSW inspector, to be appointed before the end of 2012, will be responsible for inspecting, examining, reviewing and making recommendations on custodial services, including their management by Corrective Services NSW. The Bill provides that reports may include advice and recommendations relating to the efficiency, economy and proper administration of custodial centres and services.
'Custodial services' include the management, direction, control or security of custodial centres; the security, management, control, safety, care or welfare of persons in custody, detained or residing at custodial centres; and their transport between facilities.
The inspector will have unfettered access to custodial premises, all departmental and other records, custodial staff and prisoners. It will be an offence to give a false statement to the inspector or to hinder investigations.
Unfortunately, changing a culture of brutality in closed institutions is rarely achieved through the imposition of additional rules, training and surveillance. It is grounded in the alignment of institutional and personal values supportive of respectful relationships between officers and prisoners in transparent and publicly accountable facilities.
The strength of the WA regime is its emphasis on investigating key dimensions of prison life directly related to the daily interaction between officers and prisoners: behaviour, order, relations between officers and prisoners, officer fairness, regime fairness, consistency and clarity of treatment. The views of key protagonists are sought through confidential interviews, focus groups and surveys. Community groups are routinely consulted.
The WA inspection regime is diametrically opposed to alternatives based on calculative accountability regimes that reflect a view of incarceration as punishment for offences committed against society, or as a managerial challenge that measures 'success' in terms of 'performance' relative to key performance indicators, such as advocated by the Ombudsman.
Calculative governance and accountability regimes tend to reinforce the views of the ruling hierarchy (formal and informal) and accepted practice due to the inherent limitations of what is captured in and omitted from KPIs, and the potential for their manipulation. KPI achievement can seriously misrepresent the realities of life in prisons.
These distortions have been minimised in WA due to the nature of the inspection regime and the legislative powers granted to the inspectorate. NSW appears to have appropriate legislation. Now, the Attorney-General needs to choose the 'right' inspector and ensure that the inspectorate is funded sufficiently to enable it to undertake, without reservation, the role envisaged in the legislation.
The people of NSW need to be aware that achieving substantive change will be difficult, and takes time. Managing prisons is never easy. They are volatile institutions. The reforms envisaged in NSW involve changing the hearts, minds and behaviour of officers and public servants who have operated and condoned a closed and brutal system for many years.
The work of the WA inspectorate has helped to gradually align the private values of prison officers and bureaucrats with the public values inherent in a correctional policy that prioritises decency, rehabilitation, transparency and accountability. Importantly, many people working in the WA system now genuinely want to improve prisoner rehabilitation outcomes and life in the state's correctional facilities. Officers now understand that their behaviour is a critical element of achieving these objectives. Other states need to take up the challenge and ensure that jails are independently inspected to minimise brutality and abuse.
We can only hope that the changes in NSW can achieve the same results.
First published in ABC Unleashed
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