Let prisoners escape Covid-19 virus
By Bill Rowlings, CEO of Civil Liberties Australia
The case for releasing non-dangerous prisoners from Australian jails in the current health emergency is undeniable.
In jails, Covid-19 virus will likely multiply like rampant bacteria in a Petri jar.
If the virus gets into a jail, the closeness of prisoners – doubling-up in singe cells in many Australian jails – will mean it’s impossible to contain the spread by 1.5 metres of space isolation.
At meal times, and in line-ups for the daily counts or for medicine dispensing, there’s no way people could be 1.5m apart. There just isn’t room.
Prisoners are among the Australians most vulnerable to a virus.
Surveys show 62% are smokers and 62% take drugs before entering prison, most have eaten poorly and lived rough, and in general are far less healthy than the rest of us.
As usual, the disproportionate representation of Indigenous people in jails will mean Aborigines will suffer more than most if Covid-19 catches hold inside.
Average Aboriginal health is possibly worse than average non-Aboriginal health.
Another consideration is that about a third of people in jail are “on remand”. That is, they are not even guilty, but have been charged and are awaiting their day in court. Many of them could and some should be out on bail.
As well, courts throughout Australia are winding back their activities; supreme courts are postponing trials which involve a jury; even the High Court has entered hiatus.
Get them out now
In these circumstances, governments of states and territories must move quickly to get as many people as possible out of jails.
Iran has released 85,000; the USA prisoner release program has started – it could dwarf that figure.
There are about 43,000 prisoners in Australian jails. It is likely that at least a third, and possibly one-half, could be released.
Releasing large numbers would free up a modicum of “isolation space” for those remaining in jail.
For a guide to Australian governments in releasing prisoners, they should look to the report of the Queensland Productivity Commission, released publicly in February 2020, which examined this very issue: who would you let out if you wanted to drastically reduce the numbers in jails?
Apart from mass releases of prisoners serving time for lower-level crimes there are opportunities to release particular prisoners whose convictions are in serious doubt.
One is Sue Neill-Fraser. A judge of the Supreme Court of Tasmanian has ruled formally that she has already mounted a “fresh” and “compelling” case that her conviction was wrong.
As well, her circumstances have been viewed on TV in recent years.
Possibly millions of Australians have seen the full story on programs like Eve Ash’s Undercurrent series on Channel 7, and on Channel 9’s 60 Minutes. Very few of those who have seen the Neill-Fraser wrongful conviction, as revealed in a four-cornered way in these programs, believe she should be in jail.
Neill-Fraser is due in court in late-May for three Supreme Court judges to hear the appeal claims to which one of their judicial number has already given a big tick.
Release before hearing
On the basis of the proven standing of her claim, she should be released on bail before the upcoming hearing.
But there are other reasons for releasing her as well.
For example, bail can be granted under the existing Bail Act in Tasmania in exceptional circumstances. Her’s are extraordinary. When the Tasmanian Bail Act is next amended, it must in fairness grant to people in her situation a right to release from jail while awaiting the appeal that has been granted by a judge.
In all Australian jurisdictions over the past many decades, she would be eligible for parole now, having served 10 1/2 years in jail. Most murder convictions attracted sentences of 20 years or fewer, with many non-parole periods of 10 years or fewer.
Sue Neill-Fraser’s sentencing was so extraordinary that an appeal court has already wound it back from 26 years to 23 years, with 13 years non-parole.
But, given that she has already made out a strong case for the conviction to be totally overturned, she could be paroled permanently now with her conviction to be expunged if the court finds in her favour in June-July this year, as CLA expects.
“Where is the cost-benefit to Tasmania in keeping Sue in jail, at a cost of $110,000 a year?” CLA President Dr Kristine Klugman asked.
“No-one believes she would ‘re’-offend, even people who still think she’s guilty.
“It’s time for some commonsense compassion from the Tasmanian Government in the case of this woman who has been sorely tried over the past decade,” Dr Klugman said.
ENDS 200320
Final Report: Inquiry into Imprisonment and Recidivism by the Queensland Productivity Commission, August 2019. Web: qpc.qld.gov.au Email: enquiry@qpc.qld.gov.au ABN 18 872 336 955
Bill Rowlings is CEO of Civil Liberties Australia.
* Civil Liberties Australia is a not-for-profit organisation which reviews proposed legislation to help make it better, and monitors the activities of parliaments, departments, agencies and forces to ensure they match the high standards that Australia has always enjoyed and continues to to. We work to keep Australia the free and open society it has traditionally been, where you can be yourself without undue interference from ‘authority’. Our civil liberties are all about balancing rights and responsibilities, and ensuring a ‘fair go’ for all Australians.
My apologies, fellow readers, concerning my comment: the correct title of the Tasmanian Bail Act is Bail Act 1994
Hi Bill,
I’d just like to make a couple of comments on one section of your article. You wrote:
“For example, bail can be granted under the existing Bail Act in Tasmania in exceptional circumstances. Her’s are extraordinary. When the Tasmanian Bail Act is next amended, it must in fairness grant to people in her situation a right to release from jail while awaiting the appeal that has been granted by a judge. ”
Regarding that first sentence “(For example, bail can be granted under the existing Bail Act in Tasmania in exceptional circumstances.)”: I cannot find in the Bail Act 2004 any provision for the release on bail of a convicted prisoner. If a particular section of the Act provides for this, perhaps, Bill, you could point it out in a comment reply. I have found in the Criminal Code Act 1924, provision for someone in Neill-Fraser’s position to be granted bail, but only if the appeal concerns a question of law. [see s415(2)&(6) and importantly, s387.] There is other legislation (i.e. the Justices Act 1959 which treats with the ability of a Supreme Court Justice or of a Full Court to grant bail to a prisoner pending resolution of an appeal against a summary conviction or a writ of habeas corpus.
Alas, I don’t see in any of this a provision for the granting of bail for a convicted prisoner making a second/further appeal on the basis of fresh and compelling evidence.
Just in closing, a comment on the third sentence in that excerpt that I quoted from your article (the third sentence is “When the Tasmanian Bail Act is next amended, it must in fairness grant to people in her situation a right to release from jail while awaiting the appeal that has been granted by a judge.”:
We can both agree that the Bail Act 2004 could be amended to allow for Sue Neill-Fraser to be released from jail. I think that we could both agree also that it should be so amended. Her trial involved an apparent miscarriage of justice, her first appeal was something of a judicial whitewash, the Coroner’s decision was a joke, her application to the High Court, rejected in 180 seconds by those learned justices was a sad comment on their own judicial system. And finally, I’m sure that we agree that where a witness to a crime has finally come forward, and that witness has despite apparent police attempts to control what she would tell the leave application court, attempts to keep her from giving her evidence … despite that she has since publicly and in a signed statement submitted to the Supreme Court, indicated that she was present when Bob Chappell was murdered, this should surely be enough for Susan Neill-Fraser to be seen to be wrongly convicted.
Meaghan Vass has apparently named two males who she was with, one of whom killed Bob Chappell.
You would think Bill, that even if the Bail Act did not provide for Sue to be released prior to her 2nd appeal, then at least Tasmania’s legislators, or maybe even our Governor could act to ‘pull the plug’ and let her out – at least pending her appeal.
My best wishes,
Garry Stannus.