Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series)
The punishment of convicted criminals is an issue which has indelibly marked the two hundred-year-old history of European settlement in New South Wales. Indeed, a central purpose of the original colonisation in 1788 was to relieve overcrowded conditions in British prisons. For its first thirty years, the colony of New South Wales was little more than a military prison.
Although the severity with which the convicts were punished for various breaches of penal discipline defies precise analysis, such limited statistics as do exist depict a regime of grim brutality. Over 42,000 floggings (with an average of more than 40 lashes per flogging) and 240 executions by hanging were officially recorded for the period 1830-37 (Historical Records of Australia, vol. 1, no. 19, p. 654).
A century later, penal methods had evolved substantially - at least in theory. The beating of prisoners was proscribed by law. But well into tl-.e second half of the twentieth century, many ugly vestiges of British colonisation were still recognisable in the prisons of New South Wales.
During World War 11, increasing tensions in the state's prisons, and a number of serious assaults on prison officers, led the then NSW Prisons Department to use Grafton Gaol to house the state's most intractable prisoners. The penal methods implemented there over the following thirty-three year period were described by a Royal Commissioner as a 'regime of terror', '... brutal, savage and sometimes sadistic'. The Commissioner referred to the period in question as 'one of the most sordid and shameful episodes in NSW penal history' (New South Wales 1978, p. 108).
It is the view of the Commission that every prison officer who served at Grafton during the time it was used as a gaol for intractables must have known of its brutal regime. The majority of them, if not all, would have taken part in the illegal assaults on prisoners (New South Wales 1978, P. 119).
The practices in question consisted of the systematic beating of prisoners upon their arrival at Grafton, euphemistically termed a 'reception biff, and further physical assaults in the event of breaches of gaol rules during their subsequent incarceration there. In other instances, beatings were administered on a more or less random basis. In most cases, the assaults took place without violence or provocation by prisoners (Zdenkowski & Brown 1982, pp. 181-2 and 240-1).
Prisoners arrived at Grafton customarily attired in overalls and slippers, their arms strapped to their sides by a security belt to which their wrists were handcuffed. In the words of Mr Justice Nagle:
In some instances, the beatings began even before the security belt and handcuffs were removed. The beatings were usually administered by three or four officers wielding rubber batons. The prisoner was taken into a yard, ordered to strip, searched, and then the biff began. The word biff by no means describes the brutal beating which ensued. A former prison officer, Mr J.J. Pettit, described it: ,sometimes three, four or five of them would assault the prisoner with their batons to a condition of semi-consciousness. On occasions the prisoner urinates, and his nervous system ceases to function normally'. If most of the prisoners are to be believed, the officers had no compunction about beating them around their backs and heads; nor were they averse to kicking them when they were on the ground. They invariably abused them while they were hitting them, calling them 'bastards', 'cunts' and other abusive names. Sometimes they threatened to kill them (New South Wales 1978, P. 110).
The Royal Commissioner went on to quote a former Grafton prisoner, a local resident who had served a short term for failing to meet maintenance payments, and who was thereby spared violent treatment:
Later one afternoon ... I heard a commotion coming from an adjacent cell underneath in the 'trac' section. I could hear a lot of screaming and shouting and also the sound of thuds hitting against something. It went on for at least three minutes, I then heard the sound of a cell door slamming. The intense screaming then continued and its direction appeared to be moving. I then heard the same screaming coming from the yard. It lasted for some time further, and finally disappeared. The next morning at about 7.00 am I and other prisoners went into that yard. I saw what appeared to be pools of blood of considerable quantity on the concrete as well as on the path leading to the wood-heap.
He described the second incident in the following manner.
One afternoon ... I was marching through a walkover near a small yard, and looking towards the pound. I saw officer Wenczel and a prisoner, who was against a wall. Mr Wenczel was flogging him with his baton across his back and shoulders. I saw five to six blows, and the prisoner turned and was struck heavily across the head. Blood spurted from his forehead which was split. He fell on to the ground. The prisoner had his shirt off and blood was appearing on his body. I walked away from the scene (quoted in New South Wales 1978, p. 115).
It was clear, moreover, that the beatings in question were in furtherance of departmental policy; prison officers who testified before the Royal Commission conceded as much (Findlay 1982, p. 46). Departmental correspondence referred to the desirability of 'robust officers' to staff the institution, and for thirty-three years prison officers at Grafton were paid a 'climatic allowance' (New South Wales 1978, p. 108) - certainly an ironic euphemism, as the climate in the Grafton area is arguably the most equable in Australia.
Although the regime at Grafton was most notorious, the more dramatic and certainly the more visible incidents occurred at Bathurst in 1970 and in 1974. Situated 100 miles west of Sydney, the prison was built in the last quarter of the 19th century. Those who seek to equate imprisonment with motel accommodation are ignorant of Bathurst Gaol as it existed in 1970.
Mr Justice-Nagle's words are evocative.
In common with all maximum security gaols built last century, Bathurst has no glass in the windows. Prisoners, who spent about eighteen hours a day in their cells, frequently had their bedding wet by rain and sleet. There was no heating in the cells despite the extreme cold experienced in Bathurst. The cells could be stifling in summer. Screens were not permitted on the windows, and the piggery operated by the gaol outside its southern wall (between towers 4 and 6) contributed to the flies and insects and all types of odorous smells which invaded the cells in summer.
Sewerage created health problems when lavatories regularly overflowed or cisterns jammed.
Prisoners were permitted only two or three showers a week and the water-heating facilities were inadequate (New South Wales 1978, p. 45).
In addition to these physical conditions, prisoners complained about rancid food and had to endure a Dickensian system of trivial regulations:
Jumpers were not allowed in summer, no matter how cold; shirts were not to be removed in summer, no matter how hot. Prisoners had to remain fully dressed even in their cells, again no matter how hot, until 5 pm each day (New South Wales 1978, p. 46).
Dissatisfaction over these conditions intensified, and in October 1970 a number of prisoners staged a protest sit-in. Some days later, upon conclusion of the protest, the prison officers exacted retribution. In the words of the Queen's Counsel appearing at the Royal Commission for the prison officers union:
Some prison officers participated in a systematic flogging of a large number, if not all, of the prisoners in the gaol (New South Wales 1978, p. 55).
The Royal Commissioner himself described a number of the incidents in more graphic detail.
Prison officer Atkins also saw Prison officer Best assaulting prisoner Dowd on the top landing of A wing. Best kept repeating to Dowd 'call me sir' and hitting him as he shouted this at him. Dowd did call out 'sir', but Best continued to hit him. There had been no provocation on Dowd's part, nor any resistance when he was hit. Dowd's nose was broken. The blood on Best's shirt has already been referred to. Atkins described Best as having worked himself into a lather of sweat and frothing at the mouth, shouting and screaming (New South Wales, 1978, p. 61) ...
... Then the cell door opened again. Prison officer Wilcox entered with a number of other officers. He said to Meaney: 'Come out here you little black bastard where I can get a go at you'. Wilcox hit Meaney with his baton from the front while Prison officer R.P. Morgan hit him from the other side. Prison Officer Paget used his baton on Meaney's legs. Morgan admitted having used his baton on Meaney, but alleged that he had to do so because Meaney 'offered resistance' because 'he refused to come out from behind the bed'. Morgan was unable to see whether Meaney had any weapons.
Meaney was a small man, about 5 feet 3 inches tall. Prison officer Paget was over 6 feet tall. Prison officer Morgan was also a much larger man than Meaney.
A fourth officer, W. Aitken, then entered the cell and hit Clark on the side of his head. As Clark doubled up, he hit him twice more, breaking the baton. He called for another baton and proceeded to hit Clark with his fists in the stomach and ribs. Clark was also a slightly built man. Prison officer Aitken was a big man, weighing over 15 1/2 stone. He was handed another baton and struck Clark on the spine (New South Wales 1978, p. 58).
The Royal Commissioner concluded, 'the whole episode was a disgrace in terms of ordinary human behaviour and repellent to any standard of decency to be expected of a prison system' (New South Wales 1978, p. 6 1).
Following the 'Bathurst Batterings' as they came to be known, the Department conducted an inquiry. Although the officer who conducted the investigation concluded that a prima facie case existed against prison officers generally at Bathurst, this was not communicated to the Minister. The Department, and the Minister, continued to dismiss allegations of misconduct as unfounded (Zdenkowski & Brown 1982, pp. 15962; Findlay 1982, pp. 21-31).
By February 1974, a little more than three years after the 'Bathurst Batterings', conditions at the prison had changed little. Tensions heightened once again, and rumours of a riot began to circulate. On a Sunday afternoon, petrol bombs were thrown into a number of buildings in the prison complex. Prison officers were issued with arms, and without having been so ordered, began firing on the prisoners. The Nagle Royal Commission found that 'there was an indiscriminate use of firearms, with no proper instructions given or understanding gained of when or where to use them' (New South Wales 1978, p. 93). The shootings were, moreover, in direct contravention of instructions sent from departmental headquarters.
A few prisoners inside B Wing had been wounded and these were assisted to surrender. One of them was Bugg, who was carried by two other prisoners (Von Falkenhausen and Harrison) under a white flag. They were fired on by officers in the tower (New South Wales 1978, p. 93).
Soon after 6 pm the prisoners sheltering in B Wing began negotiations for their surrender. The two prisoners mainly involved in these negotiations were Wally Bishop and Carson. Bishop carried a white flag and a prison officer's whistle. Despite the white flag, he was fired on and shot in the back (New South Wales 1978, p. 95).
Subsequent medical examinations revealed that just under twenty prisoners were wounded by gunfire, some of them seriously. One (Bugg) is now a paraplegic, having been shot in the back from a .22 rifle. The bullet passed through a lung before lodging in his spinal cord. Another (Connors) received injuries to his lung, liver and stomach through a bullet which entered the low rib region, passed through his lung and entered his abdomen. Other prisoners were found to have wounds in the forehead, in the parietal area at the side of the head, in the skull behind the ear, in the jaw, shoulders, arms, upper and lower back, spinal area, abdomen, knees, legs and ankles. Some were from pellets, others from the .22 rifles. A few wounds were superficial (New South Wales 1978, p. 93).
Following the shootings, when 'order' had been restored to the prison, a number of prisoners were subjected to brutal beatings:
Saric received a bashing that can be described only as savage. When seen by Dr Doust a short time later, he had three lacerations to the side and back of his scalp and at least thirty lineal weals four to six inches long and one to one and a half inches wide on the back of his body, on his shoulders and on the back of his upper arms. These lineal weals were in a geometric, criss crossed pattern, which the doctor thought was consistent with the prisoner running through a gauntlet of officers wielding wooden batons. It was suggested at one stage that the prisoners might have inflicted injuries of this type on each other with bricks or iron bars during the riot. Dr Doust said that the injuries were not consistent with such suggestions (New South Wales '1978, p. 101).
Bathurst had been gutted by fire. It would cost over $10 million to rebuild. The NSW Police were called in to investigate any offences which may have been committed by prisoners. A Royal Commission was heralded, but the Minister, Mr Maddison, announced that its appointment would be deferred until criminal charges against prisoners had been disposed of. The Department made no inquiries into the allegations of misconduct on the part of its officers (Zdenkowski & Brown 1982, pp. 235-40; Findlay 1982, pp. 326). Indeed, Maddison had instructed the Commissioner of Police not to investigate allegations against prison officers (Whitton 1987, p. 331).
The circumstances which facilitated the systematic abuse of prisoners in New South Wales over more than three decades were many and varied. The Nagle Report was scathingly critical of the management practices of the Department of Corrective Services and its Commissioner, Mr McGeechan. Mr Justice Nagle criticised the lack of any clear or consistent penal policy on the part of the Department, described those aims and objectives which it did have as 'obscure to both prison officers and prisoners alike' and called the Department's future planning 'confused and incomplete' (New South Wales 1978, p. 36).
The lack of direction and guidance not only produced a demoralised work-force, but was to have brutal consequences as well. The trade union representing prison officers on at least one occasion explicitly requested formal instructions on the use of force against prisoners. The Department failed to comply with the request. Moreover, even after the 1970 Bathurst batterings, the Department failed to issue any directions condemning the use of force against prisoners (New South Wales 1978, pp. 156-7).
Managerial ineptitude took many forms. Administrative records were sorely inadequate. The Department failed to follow up to ensure the implementation of rules and directives. In its submission to the Royal Commission, the Department complained of inadequate resources. The conditions of incarceration to which the Bathurst prisoners were subjected was noted above. But even while the Royal Commission was sitting, the Department proposed to build stables for quarterhorses at Cessnock Corrective Centre at a cost of $250,000 (New South Wales 1978, p. 273).
Mr Justice Nagle was also critical of what he termed the Department's 'obsessive secrecy'. The Department had no public relations officer. Whilst public access to prisons must necessarily be strictly controlled, a number of persons were prohibited from visiting New South Wales prisons. These included Members of Parliament, members of the legal profession, prison administrators from interstate, and 'reputable private citizens'. There was, moreover, an almost absolute bar on the media (New South Wales 1978, p. 152).
The regime of secrecy so criticised by Mr Justice Nagle enabled the Department to deceive not only the public but also limit the information reaching the responsible Ministers. Mr McGeechan's report in the aftermath of the 1970 Bathurst allegations 'bore little relationship to the facts - either as Mr McGeechan knew them or as they happened' (New South Wales 1978, p. 73).
The low profile which the Department consciously adopted prevented the kind of external scrutiny which would inhibit the emergence, or certainly the institutionalisation, of systematic abuses.
These organisational pathologies were compounded by the hierarchical structure of the Department and by the management style of the Commissioner. In the words of Mr Justice Nagle:
It would appear that an attempt was made to create an organization in which Mr McGeechan would be the head; that no proper delegation of authority was to be permitted; that there was no real provision for consultation; and that all decisions were to be Mr McGeechan's. Not only did this throw too much work and responsibility upon Mr McGeechan, but it did not permit an administrative hierarchy with well-defined areas of responsibility for the staff at each level. It has been recommended elsewhere that, in future, there should be a Commission of five persons in lieu of a commissioner. It is enough here to mention that the present organization of the Department is ineffective and does not properly use the capabilities of its senior officers (New South Wales 1978, p. 162).
The desirability of an independent inspectorate for the prisons system of New South Wales was noted in 1861 by a Select Committee under the chairmanship of Sir Henry Parkes. The recommendation, however, was never implemented. As a result, 117 years later, Mr Justice Nagle was forced to conclude:
One of the most serious criticisms that can be levelled against the Department's administration has been the failure by Mr McGeechan and his Head Office staff to appreciate exactly what was happening within the system. No attempt ever seems to have been made by Mr McGeechan or the Head Office staff to see that their instructions and orders were adopted and followed within the various gaols. Despite its apparent investigations, the Department says that it failed to detect improper actions by custodial officers, and at times it was apparently oblivious to them (New South Wales 1978,188).
The dearth of whistleblowers (persons within the prisons system who might have called public attention to the malpractices going on), can be attributed to a number of factors. The victims of official misconduct, the prisoners themselves, lacked sufficient credibility and sympathy. Until the overwhelming evidence placed before the Royal Commission necessitated a general concession by the prison officers' trade union that some abuse of prisoners had taken place, prison officers had a substantial vested interest in concealing their own criminal acts from public view.
Those members of the Department who did call public attention to departmental shortcomings were dealt with harshly. One prison officer, who was also the secretary of the prison officers' trade union, called for a Royal Commission to inquire into allegations against Bathurst and into the Department as a whole. The Commissioner of Corrective Services, Mr McGeechan, recommended that he be charged with misconduct under the Public Service Act 1902 (NSW). Subsequently, he was dismissed after an allegation that he had left a cell door open. He was later reinstated at a lower rank (New South Wales 1978, p. 157).
Four psychologists wrote to McGeechan following the 1970 Bathurst batterings expressing their wish to be dissociated from the 'systematic and calculated brutality' which had been practised by some officers. They were threatened with less desirable job assignments by departmental management, and none of the four were still employed by the Department by the end of 1971.
Apart from these examples of victimisation, personnel management practices were abysmal. Recruitment and training of staff resulted in a workforce largely unsuited to the task. Promotion to senior positions was based on seniority rather than competence. The Nagle Report criticised 'the poor calibre of many superintendents' (New South Wales 1978, p. 170), and maintained that the failure to remove the superintendent of Bathurst Gaol cost the state an estimated $5 million (New South Wales 1978, p. 162).
A consequence of poor management was an environment of poor industrial relations. The life of a prison officer has traditionally been stressful and unrewarding. The establishment of a trade union for the prison officers of New South Wales was an understandable response, as was the use of their industrial power to improve their conditions of employment. All too often, however, improvements in the living conditions of prisoners were resisted as incompatible with the working conditions of prison officers. On numerous occasions, the failure to introduce necessary and desirable reforms was rationalised by MeGeechan in terms of his fear of provoking an industrial dispute (New South Wales 1978, p. 184). The Royal Commissioner criticised both the union and the Department for the confrontationist postures which each routinely adopted. Mr Justice Nagle implied that the Department failed to keep prison officers fully informed of its policies as they affected the workforce, and relied insufficiently on conciliation to resolve differences.
The degree to which cabinet ministers of the day bear some responsibility for the misconduct of the Department and its officers merits some consideration in the present context. Under the traditional Westminster model, the responsible minister is just that - he or she must bear responsibility for the achievements or shortcomings of subordinate officers. If John Maddison, the minister in question for most of the early 1970s, was aware of any offences against prisoners, his steadfast refusal even to concede the existence of malpractice in his Department would make him an accessory after the fact. The Royal Commissioner, who explicitly noted that his terms of reference did not extend to the actions of Maddison as Minister (New South Wales 1978, p. 27), concluded that Maddison's testimony before the commission was truthful, and that the Minister had been deceived by his Department. Thus, the most charitable characterisation of Maddison's handling of the prisons portfolio is that of gross incompetence. For him to have remained unaware of the managerial disaster described by Mr Justice Nagle is inconceivable. For him to have tolerated such poor management is inexcusable. And yet, when the administration of prisons in New South Wales came under criticism in Parliament or in the press, Maddison's standard response was to denigrate the critic as one who sought to erode authority (Zdenkowski & Brown 1982, p. 161). It was the classic cover-up reaction. He apparently never sought an outside review or independent assessment of his Department's operations. He explicitly directed the Commissioner of Police not to inquire into allegations of misconduct against prison officers. Rather, he placed his faith in and reaffirmed his support for a permanent head whose veracity and competence were consistently called into question by the Royal Commission. The numerous , organisational pathologies canvassed in the Nagle Report, and the ministerial shortcomings which the Royal Commissioner failed to address, combined to produce an environment which fostered, then tolerated, brutality, which avoided internal investigation, and which consistently discouraged scrutiny from external sources.
Prisons, in New South Wales as elsewhere, serve the function of warehousing those defined by the authorities as undesirable. There, society's losers are kept out of sight, out of mind; as pariahs, their plight often fails to arouse the sympathy, or even the attention, of the general public. So it was that the regime at Grafton was able to continue for thirty years. Indeed, the 'high tech' facility which was designed to replace Grafton as the state's ultra high security prison, was conceived and planned in strict secrecy. Katingal, as it came to be called, was condemned as an 'electronic zoo' by Mr Justice Nagle (Stein 1981; Zdenkowski & Brown 1982, p. 182).
Neither public servants nor elected officials like to air their dirty linen in public. Penal reform has never been a vote-getter. Labor oppositions in New South Wales were thus reluctant to criticise a regime which was instituted under a Labor government in 1943. Events in 1970 began to erode this, however. The dramatic social divisions occasioned by the Vietnam War led many to question traditional institutions of society, prisons among them. A few principled men from 'respectable' social backgrounds were sent to prison for resisting conscription to national service. There they were able to see first hand the conditions and abuses which had hitherto remained invisible. These circumstances were then related to a member of state Parliament, George Petersen, who began to raise questions publicly. The media attention accorded these initial allegations elicited even more accounts of brutality from ex-prisoners, as well as attracting the attention of other concerned citizens. The anonymous publication in 1971 of an account of the 'Bathurst Batterings' placed the issue of the New South Wales prison system on the media agenda (Zdenkowski & Brown 1982, pp. 80-1 and pp. 158-9). The 1974 burning of Bathurst Gaol further heightened public debate. As a result of this episode some 46 prisoners were charged with various offences relating to property damage and riotous assembly. Police investigation and subsequent proceedings saw prison officers become the subject of a number of complaints of assault, most of which were supported by medical evidence. These made a Royal Commission inevitable.
The then Liberal government, however, sought to postpone the inevitable as long as possible. As late as 1975, John Maddison's successor as responsible minister, in dismissing calls for a Royal Commission, is quoted as having said 'we have one of the best prison systems in the world and there is no need for a witch hunt' (Zdenkowski & Brown 1982, p. 166).
At long last, on the eve of the 1976 state election, the Liberal government sought to neutralise further criticism by appointing a Royal Commission. With the change of government, new letters patent were issued. The Royal Commissioner was Mr Justice J.F. Nagle of the Supreme Court of New South Wales.
As noted above, the Nagle Report found widespread breaches of the criminal law had been committed by officers of the New South Wales government. That His Honour regarded this abuse of power with the greatest revulsion is evident in a number of the above quotations from his report. He nevertheless chose not to recommend that criminal charges be laid against the identifiable perpetrators, suggesting instead that the decision be left to the 'appropriate authorities' (New South Wales 1978, p. 119).
Mr Justice Nagle did, however, recommend disciplinary action in two cases. In addition to the removal of Mr McGeechan from his position, the Royal Commissioner recommended that disciplinary proceedings be brought against one prison officer who was alleged to have made non-violent homosexual advances to prisoners. Some consider it indicative of a double standard that Mr Justice Nagle regarded such conduct as more worthy of disciplinary intervention than 'brutal, savage and sometimes sadistic violence' (Zdenkowski & Brown 1982, p. 256).
After some delay, the government announced that it had decided against prosecuting any of the prison officers for offences which they may have committed. One former prisoner sought to proceed by way of private prosecution; the magistrate found no case to answer, and awarded costs to the amount of $30,000 against the complainant. The New South Wales government gave no considerations to redress by way of monetary compensation to those who may have been injured as a result of misconduct by government officers; prisoners were largely unable to seek civil damages in a court of law (Zdenkowski 1980).
The release of the Nagle Report in 1978 provided the Wran Labor government with an historic opportunity to achieve fundamental reforms in the NSW prison system. The creation of a five-person corrective services commission, as had been recommended in the Nagle Report, and the appointment of a progressive Chairman, Dr Tony Vinson, seemed to herald a dramatic departure from the pre-Nagle era. Indeed, most Of the 252 recommendations from the Nagle Report were implemented. These ranged from a relaxation of restrictions on cell decorations, to improvements in amenities for prison officers, to a formalisation of regulations on the use of force. The recommendation that Katingal be closed was accepted, but only after a campaign over a period of months (Zdenkowski & Brown 1982, pp. 86-90).
The Commission under Vinson demonstrated profound concern for the rights of individual prisoners, and permitted prisoners to, communicate their grievances directly to the Chairman. 'Vinson sought to maintain a high profile, making frequent visits, often unannounced, to correctional institutions throughout the state. An inspectorate was created within the Department', and four investigators were seconded to the unit from the state police. Disciplinary actions were taken against thirty-two prison officers during Vinson's term as Chairman, for reasons as varied as the use of excessive force and the possession of drugs in prison (Vinson 1982, p. 97).
But abuses were to continue. In 1979, a number of inmates at (Goulburn Gaol alleged they had been beaten by prison officers. A magistrate's inquiry found evidence of assault by four officers. The events resulted in disciplinary proceedings under the Public Service Act. Findings of misconduct were made in two cases, but no criminal charges were laid (Zdenkowski & Brown 1982, pp. 197-206).
In October 1980, prisoners at Parramatta Gaol staged a peaceful sit-down strike to protest against the decision of the Wran government not to proceed with criminal charges against those prison officers named adversely in the Nagle Report. At least fifteen prisoners were injured; a police prosecution against one prison officer was dismissed. The government's response was to publish new regulations governing the use of firearms by prison officers (Zdenkowski & Brown 1982, pp. 206-10).
Vinson sought to introduce a means of identifying prison officers that would permit the identification of individual miscreants while preventing fabrication of allegations and the scapegoating of particular officers. Industrial resistance proved too great, however. Prison officer work stoppages became more numerous, and arose not from disputes relating to the traditional concerns of wages and working hours, but from such issues as amenities for prisoners, and prisoner classification and parole decisions (Zdenklowski & Brown 1982, pp. 117-18 and pp. 126-8).
The resulting disruptions to the NSW prisons system created hardships which were borne most heavily by the prisoners themselves. The Vinson era proved to be short-lived. Prison officers, traditionally intolerant of reform, experienced increasing frustration at the pace and direction of the current and anticipated changes to penal administration. Emboldened by the government's reluctance to, bring criminal charges against those who were implicated in the abuses at Grafton and Bathurst, they used industrial action to slow the pace of change.
The Wran government, although at the peak of its popularity, saw prison officer strikes as increasingly embarrassing. The government originally endorsed the Nagle blueprint for reform and supported Vinson, but soon withdrew and allowed him to be pilloried. Trivialised media coverage of penal issues, including references to colour television, piped music, and escalating escape rates, reinforced by criticism from opposition benches, elicited the government's fundamental conservatism. Vinson was forced to resign in 1981.
The strategy embraced by Vinson's successor, the use of automatic remissions of sentence and discretionary early release, was designed to facilitate the management of prisoners by providing them with incentives for compliant behaviour. Although some degree of success was achieved, the provisions for release on licence were severely restricted when allegations were made that the then Minister for Corrective Services, Mr Jackson, had accepted payments in return for granting early release to certain prisoners. Mr Jackson was later convicted of criminal charges relating to such allegations and imprisoned.
The institution of an independent inspectorate external to the Department, first proposed over 125 years ago by Sir Henry Parkes and endorsed in 1978 by Mr Justice Nagle, has yet to be implemented. That such a body might have served to lessen mindless industrial confrontation appears to have been lost on the government. A system of official prison visitors, established in the early 1980s, provides a certain degree of external oversight of prison conditions.
Mr Justice Nagle's recommendation for an independent prison ombudsman was similarly rejected by the government. Instead an assistant ombudsman was assigned the responsibility of investigating complaints against the Department. Such a reactive institution, mobilised only in response to complaints received, would appear to be less of a safeguard against departmental malpractice than would an office with proactive powers of unilateral investigation. Even the scrutiny of the assistant ombudsman proved a bit too close for the Department's liking, however. In 1982 the Department requested changes to the ombudsman's legislation, which would prevent the ombudsman's office from inquiring into the allegations against prison officers (Vinson 1982, p. 221). By the mid 1980s these tensions had subsided, and the ombudsman was able to refer to a co-operative relationship between his office and state prison authorities.
A greater degree of industrial peace has also been achieved, in part as a result of more astute management practices. When work stoppages have occurred, the extraordinarily co-operative demeanour of prisoners has enabled senior management to keep the institutions running without major disruption.
In the decade since the Nagle Report was published, the general public has become increasingly unsympathetic to the state's prisoners (Brown 1987). The social processes which generate crime and produce offenders are unlikely to abate. As more convicted offenders are sentenced for longer terms, facilities become overcrowded and tensions mount. Whether unrest on the part of prisoners or prison officers will again reach the boiling point remains to be seen. In the event that it does, official misconduct would be inhibited less by departmental safeguards than by the scrutiny of the press, concerned citizens, and by such independent institutions as the ombudsman's office.
*The author is indebted to the previous contributions of Findlay (1982), Nagle (1978), Vinson (1982), Zdenkowski and Brown (1982). Any errors of fact of interpretation remain the author's responsibility.
- Brown, David 1987, 'Preconditions for Sentencing and Penal Reform in New South Wales: Some Suggestions Towards & Strategy for Contesting an Emerging Law and Order Climate' in Sentencing in Australia, ed I. Potas, Australian Institute of Criminology and Australian Law Reform Commission, Canberra, pp. 341-61.
- Findlay, Mark 1982, The State of the Prison: A Critique of Prison Reform, Mitchellsearch Ltd., Bathurst.
- Historical Records of Australia, vol. I, no. 19, Library Committee of the Commonwealth Parliament, p. 654.
- New South Wales 1978, Report of the Royal Commission into New South Wales Prisons, (Justice J. F. Nagle, Royal Commissioner), Government Printer, Sydney. References are to the reprint (Parliamentary Papers 1976-77-78 No. 322) which consolidates the original three volumes of the Report.
- Stein, Paul 1981, 'The New South Wales Royal Commission into Prisons' in Decisions: Case Studies in Australian Public Policy, eds S. Encel & P. Wilenski, Longman Cheshire, Melbourne, pp. 206-24.
- Vinson, Tony 1982, Wilful Obstruction, Methuen Australia, Sydney.
- Whitton, E. 1987, Can of Worms II: A Citizen's Reference Book to Crime and the Administration of Justice, The Fairfax Library, Sydney.
- Zdenkowski, George 1980, 'Judicial Intervention in Prisons', Monash University Law Review, vol. 6, no. 4, pp. 294-330.
- ------------ 1983, 'New South Wales Prisoner Denied Court Access', Legal Service Bulletin, vol. 8, no. 2, p. 88.
- Zdenkowski, George & Brown, David 1982, The Prison Struggle: Changing Australia's Penal System, Penguin Books, Ringwood.