Kilroy, Debbe --- "Editorial: Moving beyond the bars" [2018] PrecedentAULA 38; (2018) 147 Precedent 2

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MOVING BEYOND THE BARS

By Debbie Kilroy

The number of people behind bars and barbed wire in Australia’s adult prisons has exploded over the past three decades.^[1] Youth prisons are overcrowded with children on remand.^[2] Visa cancellations, especially on character grounds, are on the rise,^[3] and our privatised, offshore immigration prisons are notorious for violence, death and human rights abuses.^[4]

This issue of Precedent illustrates the diversity of legal rights and obligations relevant to imprisonment in Australia’s legal system and the limits and potential for legal advocacy to challenge the carceral state and hold it accountable.

Margalit discusses workplace relations laws and the fallout following implementation of smoking bans in Victorian prisons; the flawed rationale and implementation of this policy demonstrate the failure of ‘altruism’ in systems that purport to combine ‘care’ and ‘protection’ with punishment and control.

Morrissey and Osborne highlight the legislative challenges to claiming compensation for negligence and intentional violence for prisoners in WA and Victoria. Both articles demonstrate the ‘political’ factors that restrict the law’s ability to make the state accountable for violence in prison.

In fact, violence in prison is invisible to the law of civil damages. Despite clear and repeated evidence that routine strip searches are highly abusive and traumatising for women,^[5] especially survivors of sexual abuse, challenging strip-searching at law is practically impossible. Consent must be the right of every woman.

Kerr and Shackel contend that rising imprisonment rates for women in Australia and internationally indicate ‘pervasive systemic gender bias and discrimination’ in the criminal punishment system. Matthews explains how this ‘abuse-to-prison pipeline’ starts in childhood. Girls continue to be shunted from residential ‘care’ to prison, and adult women are increasingly imprisoned for domestic violence offences. A reality check of what we have actually achieved in the name of equality and the women’s anti-violence movement is overdue.

We cannot escape the racism of Australia’s legal and prison systems. On 20 June 2018, 100 per cent of children in the Northern Territory’s youth prisons were Aboriginal.^[6] Across Australia, Aboriginal and Torres Strait Islander women are over 20 times more likely than non-Indigenous women and 1.55 times more likely than non-Indigenous men to be in prison.^[7] People from non-European backgrounds are over-represented in our immigration prisons, both onshore and offshore.^[8]

Prisons are an industry built on the structural disadvantage of marginalised groups in our society, clearly illustrated by the involvement of multinational corporations in the immigration prison system. The articles by Birchall and Paull, and Lees, show the potential for civil litigation, as well as the significant challenges posed by privatisation and legislated secrecy.

So what is the way forward? Nicholson encourages us to make a break from the past direction of the criminal law to realise a system of genuine accountability. Calma advocates for justice reinvestment – the diversion of financial resources from the prison system to communities.

But such changes will be hard fought in periods of prison expansion and privatisation. In July, the Queensland government announced plans to open a new women's prison at Southern Queensland Correctional Centre at Gatton, currently run by Serco. If these plans go ahead, Gatton will be the first private women’s prison in Queensland and there could be over 1,000 women in prison in Queensland within a year.

A justice system that truly guarantees safety and accountability for us all means moving beyond the bars.

Debbie Kilory OAM is CEO of Sisters Inside, which advocates for the human rights of women and girls in prison and their families, and provides services to meet their needs. Debbie was the first person convicted of drug trafficking in Australia to be admitted as a solicitor. She is a qualified social worker and Principal of Kilroy and Callaghan Lawyers. EMAIL [e-mail].

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^[1] E Baldry and S Russell, ‘The Booming Industry continued: Australian Prisons A 2017 Update’ (ResearchGate, 17 January 2017).

^[2] F Caldwell, ‘Two out of three children in detention in Queensland are Indigenous’, Brisbane Times (online), 17 December 2017, <https://www.brisbanetimes.com.au/politics/queensland/two-out-of-three-children-in-detention-are-indigenous-20171215-p4yxre.htm>; T Lodewyke, ‘Understaffing and overcrowding crippling youth detention centres’, Lawyers Weekly (online), 8 March 2017, <https://www.lawyersweekly.com.au/news/20691-understaffing-and-overcrowding-crippling-youth-detention-centres>.

^[3] Refugee Council of Australia, ‘Cancelling visas on “character” grounds: The Ombudsman report’, 30 January 2017, <https://www.refugeecouncil.org.au/resources/publications-external/ombudsman-character-cancellations/>.

^[4] H Davidson, ‘Australia’s human rights record attacked in global report for “serious shortcomings”’, The Guardian (online), 18 January 2018, <https://www.theguardian.com/law/2018/jan/18/human-rights-watch-attacks-australias-serious-shortcomings>.

^[5] AAP, ‘Strip searching female prisoners “abusive”, says ombudsman’, The Guardian (online), 4 July 2018, <https://amp.theguardian.com/australia-news/2018/jul/04/strip-searching-female-prisoners-abusive-says-ombudsman?__twitter_impression=true>.

^[6] NITV Staff Writers, ‘100% of children detained in NT are Aboriginal’, NITV News (online), 26 June 2018, <https://www.sbs.com.au/nitv/nitv-news/article/2018/06/26/australia-aboriginal-detention-northern-territory>.

^[7] Australian Bureau of Statistics, 4517.0 Prisoners in Australia 2017 (8 December 2017) table 21.

^[8] Department of Home Affairs, Immigration Detention and Community Statistics Summary (26 April 2018) 8 <https://www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-26-april-2018.pdf>.