The Nagle Royal Commission 25 Years on

Nagle J , Report of the Royal Commission into NSW Prisons (1978).

For accounts of the Nagle period see Zdenkowski G Brown D , The Prison Struggle (1982); Findlay M , The State of the Prison (1982); Vinson A , Wilful Obstruction (1982).

O'Neill J , ‘The Punishment Salesman’ (1990) Independent Monthly, October.

See Brown D , ‘Putting the Value Back into Punishment’ (1990) 15 Legal Service Bulletin 6, 177–185; Brown D , ‘The State of Play in the Prisons under the Greiner Government: Definitions of Value’ (1991) 4 Journal of Studies in Justice 27–60.

Summers A , ‘If Prison is Purgatory, then Grafton is hell’ The National Times, 26 April — 1 May 1976.

O'Malley P , ‘Volatile and contradictory punishment’ (1999) 3 Theoretical Criminology 2, 175–196.

See Garland D , Punishment and Modern Society (1990); ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36 British Journal Of Criminology 4, 445–471; The Culture of Control (2001).

Young J , The Exclusive Society (2000).

Bottoms A E , ‘The Philosophy and politics of Punishment and Sentencing’ in Clarkson C. Morgan R. (eds) The Politics of Sentencing Reform (1995).

Mukherjee Crime and Justice in Australia (1990) 50

Australian Bureau of Statistics (ABS) Corrective Services, March Quarter 2003 (2003) 7–8.

Ibid, 20–1.

In NSW the prison utilisation rate in 2002–3 exceeded 100%, an indicator of overcrowding as ‘the optimum rate … lies in the range 85–95%’: Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 2004 (2004) C13, 7.26–7.

NSW Legislative Council, Select Committee on the Increase in Prisoner Population, Final Report (2001) 10. Since the Nagle Report, major prisons have been built at Parklea; Junee (private); Lithgow; Metropolitan Remand and Reception Prison at Silverwater; and John Morony at South Windsor. A women's prison is under construction at South Windsor and new prisons are planned for Kempsey and Wellington.

Ibid, 71.

Report on Government Services 2004 above, n 13, 7.21–3; Table 7A6. ‘Total cost’ is a combination of recurrent and capital cost per prisoner per day.

NSW Legislative Council, above, n 14, 73.

Probation and Parole Act 1983 (NSW).

See Weatherburn D , ‘Appellate Review, Judicial Discretion, and the Determination of Minimum Periods’ (1985) 18 ANZJ of Criminology 4, 272; compare O'Brien [1984] 2 NSWLR 449; Maclay (1990) 19 NSWLR 112.

Sentencing Act 1989 (NSW).

Gorta A , ‘Impact of the Sentencing Act 1989 on the NSW Prison Population’ (1992) 3 Current Issues in Criminal Justice 3, 308.

Sentencing Act 1989 (NSW) s 5(2).

Crimes (Life Sentences) Amendment Act 1989 (NSW) s 19A.

R v Jurisic (1998) 45 NSWLR 209.

R v Henry [1999] NSWCCA 111. 136 — AltLJ Vol 29:3 Jun 2004

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) s 54A.

Brown D , ‘The Politics of Law and Order’ Law Society Journal (2002) October, 69–72.

Royal Commission into Aboriginal Deaths in Custody, Final Report (1991).

Cunneen C Behrendt J , ‘Report to the National Committee to Defend Black rights: Aboriginal and Torres Strait Islander Custodial Deaths Between May 1989 and January 1994’ (1994) 68 Aboriginal Law Bulletin 4.

Dalton V , ‘Aboriginal Deaths in Prison 1980 to 1998: National Overview’ (1999) Trends and Issues No 131.

Dalton V , ‘Prison Deaths 1980–97: National Overview and State Trends’ (1998) Trends and Issues No 81.

Zdenkowski Brown , above, n 2, 180–1.

Ibid, 197–206.

Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 1998 (1998) 421.

Report on Government Services 2004, above, n 13, 7.13–14; Table 7A.13.

Heilpern D , Fear or Favour: Sexual assault of young prisoners (1998).

Report on Government Services 2004 above, n 13, 7. 13–14; Table 7A.13.

Sydney Morning Herald, 22 February 1991.

Smith L , Report of the Inquiry into the Incident at Casuarina Prison on 25 December 1998 (1999); Carter K , ‘The Casuarina Prison Riot: Official Discourse or Appreciative Inquiry? (2001) 12 Current Issues in Criminal Justice 3, 363–375.

Steering Committee for the Review of Commonwealth/State Service Provision, Report on Government Services 1995 (1995) 492–5, 508.

Report on Government Services 2004 above, n 13, 7.16–17; Table 7A.17.

0.47 per 100 prisoners in open security and 0 in secure custody: Ibid, 7.16; Table 7A.16.

Foucault M , Discipline and Punish (1978) 30.

For example Ivan Milat, Bilal Skaf and Phuong Ngo.

See Action Justice , Framed (2003) 45 October, 4–6.

Fraser [1977] 2 NSWLR 867.

Collins v McRae (unreported, NSW SC 16 November 1979).

See Brown D , ‘Prison Discipline, Legal Representation and the NSW VJ Courts’ in Tomasic R Lucas R , (eds) Power, Regulation and Resistance (1986) 123.

See Division 6 of the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1999 (NSW).

Dugan v Mirror Newspapers Ltd (1979) 53 ALJR 166; Felons (Civil Proceedings) Act 1981 (NSW).

For example the Victim's Support and Rehabilitation Act 1996 (NSW) s 24(4) provides that ‘convicted inmates’ are ineligible for victim's compensation for ‘an act of violence if it occurred while the person was imprisoned’, illustrating that notions of forfeiture are alive and well. See Brown D , ‘Prisoners as Citizens’ in Brown D Wilkie M , (eds) Prisoners as Citizens (2002) 308.

See Ridley-Smith M Redman Ronnit , ‘Prisoners and the Right to Vote’ in Brown D Wilkie M , (eds) Ibid, 283.

Edney R , ‘Judicial deference to the expertise of correctional administrators: The implications for prisoners' rights’ (2001) 7 Australian Journal of Human Rights 1, 91–133.

(1949) 79 CLR 1 at 8.

Edney , above, n 53, 113.

Ibid, 125. For a good example see Binse v Williams (1998) 1 VR 381.

Giffard C , ‘International Human Rights Law Applicable to Prisoners’ in Brown D. Wilkie M. (eds) above, n 52, 177.

See Minogue C , ‘An Insider's View: Human Rights and Excursions from the Flat Lands’ in Brown Wilkie (eds) Ibid, 196.

NSW Legislative Council Select Committee on the Increase in Prisoner Population, above, n 14, xv.

See Brown D , ‘Notes on the Culture of Prison Informing’ (1993) 5 Current Issues in Criminal Justice 1, 54–71.

A recent letter from NSW Commissioner of Corrective Services, Ron Woodham, to the Sydney Morning Herald, reveals the considerable resources devoted to drug detection operations: ‘Tough on drug detection’ SMH 3 November 2003. Commissioner Woodham argues that ‘NSW has one of the most stringent drug-detection practices in the world’. Methods include: Joint drug-interdiction operations with police; drug detector dogunit deployment; visitor searches; comprehensive centre searches; daily searches in accommodation units; inmate strip searches before and after visits; a urine analysis program randomly targeting all inmates and those suspected of drug usage. In the first six months this year there were 164,143 cell searches, 231 searches of the entire centre, 19,000 visitor searches and 150 vehicles were searched. As a result, 294 inmates were found with drugs or contraband resulting in visit restrictions and police charges.

ICAC, Case Management in NSW Correctional Centres (1999).

Crimes (Administration of Sentences) Act 1999 (NSW) s 135 (2) (f) (ii). 140 — AltLJ Vol 29:3 Jun 2004

NSW Legislative Council, above, n 14, 8.

The NSW Government has recently abolished the position of Inspector General of Prisons and transferred some of its functions into the increasingly overburdened and muzzled Ombudsman's Office, described by one commentator as having ‘lost its teeth, and its bark muffled by new secrecy provisions, legalisms, and the exercise of discretion.’: Horin Adele , ‘Another tough watchdog muzzled’ Sydney Morning Herald 1–2 November 2003.

Garland D , The Culture of Control (2001); Lea J , Crime and Modernity (2002).

Bottoms A , above, n 9.

Garland D , ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36 British Journal Of Criminology 4, 445–471.

Taylor I , Crime in Context (1999).

O'Malley P , above, n 6, 175–196.

Garland D , ‘“Governmentality” and the problem of crime’, (1997) 1 Theoretical Criminology 2, 173; Rose N , Powers of Freedom: Reframing Political Thought (1999).

Beck U , Risk Society: Towards a New Modernity (1992).

Feeley M Simon J , ‘The New Penology: Notes on the Emerging Strategy of Corrections and its Implications’ (1992) 30 Criminology 4, 449–74; Feeley Simon , ‘Actuarial Justice: The Emerging New Criminal Law’ in Nelken D. (ed) The Futures of Criminology (1994).

Simon J , ‘They Died with Their Boots On, The Boot Camp and the Limits of Modern Penality’ (1995) 22 Social Justice 25–48; Hallsworth S , ‘The Case for a Postmodern Penality’ (2002) 6 Theoretical Criminology 2, 145–64.

Young J , The Exclusive Society (1999).

Wacquant L , ‘Deadly Symbiosis: When Ghetto and Prison Meet and Merge’ (2001) 3 Punishment and Society 1, 95–133; Wacquant L. , ‘From Slavery to Mass Incarceration’ (2002) New Left Review, January/February, 41–60.

Pratt J , ‘Emotive and Ostentatious Punishment: Its decline and resurgence in modern society’ (2000) Punishment and Society, 2, 417–40; Pratt J , Punishment and Civilisation (2002); Vaughan B , ‘The Civilizing Process and the Janus-Face of Modern Punishment’ (2000) 4 Theoretical Criminology 1, 71–91.

Ryan M , Penal Policy and Political Culture in England and Wales (2003).

For a range of perspectives on the ‘punitive turn’ see Pratt J , (eds) The New Punitiveness: Current Trends, Theories, Perspectives (forthcoming 2004).

O'Malley P , ‘Criminologies of Catastrophe? Understanding Criminal Justice on the Edge of the New Millennium’ (2000) 33 ANZ Journal of Criminology 2, 164.

See Brown D , ‘“There is life in the old dog yet”: NSW penal practice since Nagle, the penal welfare complex and the punitive turn’, ANZ Society of Criminology Conference, Sydney, October 2003; Zedner L , ‘Dangers of Dystopias in Penal Theory’ (2002) 22 Oxford Journal of Legal Studies 341–61.