Published date: 
Thursday, June 17, 2021


In Term 1, 2021, I was an intern at the UNSW Centre for Crime, Law and Justice. I wanted to learn more about prison reform, and was encouraged to read George Zdenkowski and David Brown’s, The Prison Struggle: Changing Australia's Penal System (Penguin Books, 1982). As we approach the 40th anniversary of this landmark book in Australia penology, I had the opportunity to interview one of the authors – David Brown, Emeritus Professor in the UNSW Faculty of Law and Justice. Below is the transcript of the interview.

Isaac Kwong
June 2021

IK:      

David, how did you come to be involved in the topic of prison reform.

DB:

Well, I did my law degree in Auckland, and during that period, I was really interested in criminology and penology. I took those subjects whenever they were available, and that involved, as part of the courses, visiting prisons. Then, when I became a lawyer in a law firm in Auckland, I took up a number of cases that involved people who were detained in prison. As a result, I developed a fairly adverse attitude to prison conditions and prisons as institutions. There was one particular case that was very influential. I was up at the court as a young lawyer one day, and a couple of Hare Krishnas were brought before the court and charged with stealing roses from a rose garden, and the magistrate took one look at them and freaked out.  They had their saffron robes, shaven hair, and they had various followers in the courtroom. So the magistrate freaked out and denied them bail on that charge.

They had no legal representation, and I was horrified by this, so I went and contacted the station sergeant and asked if I could go and see them. I was taken down to the cells, saw them and said, ‘Look, you shouldn't be denied bail on a charge like this, would you like me to put an appeal in?’ And they said, ‘Yeah, yeah, sure. That'd be good.’ So I rushed around and did all the paperwork and got up before the Supreme Court the next morning. And the judge was horrified as well, granting them bail immediately. I got the papers in my hand, got on my motorbike and drove out to Mount Eden Prison, where I produced the papers and sprung them from the jail.

That was quite an important moment for me. It reaffirmed both an interest in, and a hostility to, imprisonment as a form of social sanction. Then I went on to do the postgraduate Diploma of Criminology at Cambridge and spent time looking around other prisons in England.  And there was a week attached to a prison called Grendon Underwood, which was a therapeutic type of prison in the early 70s. Then, when I came to Australia in 1974 [as a lecturer in the very new UNSW law faculty], I was immediately recruited into the very vibrant prison movement at the time, and became a member of the Prisoners Action Group shortly after arriving. I became one of the co-authors of the Prisoners Action Group submission to the Nagle Royal Commission, which operated from 1976 through to 1978.

IK:      

Thanks David. That definitely helps us understand your interest in the topic. It's great to see that your interest in prison reform comes not only from study, but also from personal experiences. I've been reading The Prison Struggle, and it has been eye-opening. I was shocked to read about the  level of discretion that NSW prison officers had over day-to-day operations. I read about arbitrary violence, informal resolution, and invasions of private communications, not as rule-breaking, but as official policy. Could you speak to the impact that this kind of arbitrary discretion had on the interests of prisoners and their ability to exercise their rights?

DB:     

Yes of course. One crucial component, I think, if we go back to the 1940s, was when the Grafton ‘Bash Regime’ was established. Following a riot at Maitland Prison, there was a felt need to establish a really hard ‘end point’ to the New South Wales disciplinary prison system. And the prison in Grafton was singled out, and prison officers were given what was called a ‘climatic allowance’, which was clearly a code for an allowance for taking part in what were systematic bashings, including the infamous ‘reception biff’.  This was quite a benign sounding term for what was a form of torture. As soon as people, or transferees, were sent from other jails and arrived at Grafton, they were stripped naked and bashed by half a dozen prison officers, wielding long-handled batons. They were bashed into unconsciousness in many cases.

And the bashings wouldn’t stop there; they continued intermittently. Prisoners never knew when they were going to be bashed next. In fact, some of them said that once the bashing started, it was kind of almost a relief because the tension of waiting for the next bashing was just so terrible. So that was clearly official policy, rather than the prison officers acting totally off their own bat. They were given an allowance for engaging in that level of extreme state violence, and a considerable degree of discretion on-the-spot as to how often those bashings would be given or who would be singled out for them.

They also had a whole series of local, informal rules in Grafton. One of them was an ‘eyes to the ground’ rule. Prisoners were not allowed to let their eyes travel over a prison officer, and they were certainly not to look a prison officer in the face, or in the eyes.

Now, I don't think that was a rule that was laid down by head office. I think that was one that was developed locally, using prison officer discretion as a way of cowering, intimidating, and bringing prisoners into submission. And the role of the prison officers’ union – the Prison Officers Vocational Branch of the Public Service Association – was very significant in that they tended to oppose reforms that brought greater accountability and scrutiny to prison officer violence.

And so it was a mix of official head office policy to engage in forms of targeted selective violence of a fairly systematic and very brutal form. This mix also allowed prison officers to exercise their discretion on-the-spot in ways that could then be denied officially up the line. For example, after the Nagle Royal Commission, while the Royal Commissioner criticised Corrective Services Commissioner Walter McGeechan very, very considerably, no criminal proceedings were ever taken against any prison officers for those brutal bashings at Grafton, or for the bashings that followed in Bathurst in 1970 and 1974. Neither were any prosecutions brought against senior officers or the Corrective Services Commissioner for their involvement in those events. So, there was a climate of impunity and a lack of accountability exacerbated by the considerable discretion granted to prison officers. That discretion also proved quite functional, in that it allowed for a department to deny clear lines of authority and clear responsibility for what was going on under their watch.

IK:      

The circumstances you describe also had implications for the ability of prisoners to raise grievances, didn’t it? The disconnect between the head office and the day-to-day operations of local prison officers would have been unhelpful, to say the least, for prisoners who were actually trying to resolve grievances through formal avenues.

DB:     

Yes, exactly, and Bathurst was a very good example of that. It is important to look at the local cultures around prisons because different prisons have had very different histories at different times and under different regimes.

Bathurst was a good example of exactly what you mentioned, because it was a local regional prison. The remit of head office didn't really run there very strongly. I think at the time of the bashings in 1970, the Governor had been there for 30-40 years, starting as a junior officer, and gradually working his way up to Governor. Accordingly, there was a clique of hard-line prison officers at Bathurst who were all locals. The jobs there had been handed down in some cases from grandfathers to fathers to sons. So the prison officers at that time really thought of it as their jail. Head office was seen as an intrusion, something to be resisted. And so they developed all their own rules, in essence.

Whereas various prisoners had certain amenities and access to facilities and certain rights in other jails, that did not pertain to Bathurst. Prisoners had to, for example, wear their jackets in the yards even in the summer when it was sweltering, and they were not allowed to sit down in the yard. They only had two showers a week. There was a whole series of things like that that were actually available in other prisons but were not available in Bathurst.

So it was a law unto itself. It was very demoralising and undermining for any prisoner trying to do the right thing to make a complaint for example, and to do it properly. If you made a complaint about something that was legitimate, something which you felt you had a right to – that would have been available, perhaps when you were at another jail – you would often then be charged with an internal disciplinary offence for making that complaint.

You would be charged with making a false complaint and brought before the Visiting Justice. You would nearly always be found guilty, because the visiting justices just followed whatever the prison officer said. There was no right to call witnesses.  There was no right to legal representation. It really was the epitome of a kangaroo court. And in that context, prisoners were then given “pound”, which was confinement to cells. And for each day of pound, you lost four days of remissions. So people ended up doing weeks or even months of extra time for making a formal complaint, for attempting to get access to an entitlement that was allowed in another jail.

It was a lawless environment really.

IK:      

Indeed.  And I think some of those stories that came out of this time remain distressing to read. Reading The Prison Struggle, it appeared to me that prisoners seemed paralysed, with formal complaint avenues yielding little prospect of any success. And so that brings us to the topic of direct action, which came to be a major factor in prison activism during the 1970s. Could you please speak to the importance of direct action in compensating for the ineffectiveness of official grievance processes?

DB:     

Yes, well in a way that was all that was left to inmates. Again, to focus on Bathurst, direct action was a major factor during the 70s, starting from about '68 on, right through to the early 80s. There were disturbances across a large number of New South Wales jails, and indeed in jails throughout other states.  But New South Wales prisons were at the fore.

The mass systematic flogging of all prisoners at Bathurst jail in 1970 was precipitated by ‘sit ins’ in the yards, where prisoners presented a list of demands to the authorities. If you look at them, they were very minor demands. To have an extra hour of listening to the radio, to have a proper internal disciplinary system where you can call evidence, to have better food, and so on. These were relatively minor considerations.

The prisoners were led to believe that the Commissioner of Corrective Services was coming up to discuss those demands. A few days later, they were all locked in and systematically bashed, cell by cell, led by the superintendent. That then sowed the seeds for the riot in 1974, because conditions by '74, four years later, still had not improved. There was a strong collective institutional memory about what had happened at Bathurst in 1970.  Those ‘Bathurst Batterings’, as they were called, were a major factor in the 1974 riots that basically burned down half the jail and led to the jail having to be initially abandoned.

So, in summary, in the absence of proper systems of dispute resolution for complaints, prisoners were really left with no alternatives but direct action. It’s certainly worth noting that direct action was what brought about the Nagle Royal Commission, which was essentially established because of the Bathurst riot in '74 and the burning down of the jail. Prisoners could see that not only was it the only avenue available to them that brought about a feeling of solidarity and agency, but also that objectively, direct action was really the only way that they could bring their plight to the attention of the government and the public through the media. 

IK:      

I definitely see that. It was really eye opening to read about those experiences. In the past, I would have perhaps been perplexed about why prisoners wouldn't simply resolve issues ‘by the book’, but I realise now that this wasn't really an option for them given the circumstances that they were in. Like you said, it was like the lawless west out there.

I did want to touch further on the Nagle Royal Commission. I think The Prison Struggle performs a rather balanced evaluation of the commission, pointing out its strengths and also some of its weaknesses. Could you perhaps share some reflections on the commission all these years on?

DB:     

Well, clearly it was very significant at the time. You have to put the Nagle Royal Commission in the context of the time of the mid to late 70s and the anti-institutional movement. The vibrancy of the anti-institutional struggle that was taking part from the late 60s, which involved the creation of what sociologists and criminologists called a new political subject, namely people like psychiatric patients, school students, prisoners. There was a revolt against the oppressive nature of a whole range of institutions.  There was a kind of flowering of liberatory thought about people not just reforming those institutions, but taking them over. Things like second wave feminism, the Black Power Movement, land rights struggles, the Green bans in New South Wales – all those sorts of things were going on at the same time.

So prisoners were one group that were affected by this, gaining a new sense of a kind of vibrancy. The Nagle Royal Commission provided a vehicle and a focus for that. It was significant that a number of what were called ‘counter groups’, namely the Prisoners Action Group, the Council for Penal Reform, Women Behind Bars and Council for Civil Liberties, all had separate representation at the commission. And by and large, the Commission was conducted fairly openly. A lot of evidence was put forward from prisoners, which initially of course, was denied by the prison officers. They denied the bashings at Grafton. They denied the bashings at Bathurst in '70 and '74.  Eventually, when the evidence became just so overwhelming, those denials were completely implausible. The prison officers’ union changed tack and entered an admission about those bashings, saying they regarded them as official departmental policy, which was true to a large extent. 

So the Nagle Commission basically found that what prisoners had been saying about their conditions, about their treatment over all the years was true. The systematic brutality, the bashings that took place in the aftermath of the riot, the victimisation of ringleaders and so on – all that was true.

And that was laid out in the Commission’s report, along with a whole series of reform-oriented recommendations. I think, if you want to point to one great victory that the prison movement obtained out of the Nagle Royal Commission, it was the recommendation to close Katingal - what Nagle called the ‘Electronic Zoo’. It was not fit for human habitation, and that led to the government actually closing Katingal. I think that was a pretty extraordinary event, perhaps beyond our hopes at the time. It was really a landmark moment for the prison reform movement and for prisoners and for the public more generally in finding out what had been going on in the prisons. 

Interestingly, Nagle recommended that, in his view, prisoners would reduce in significance as, what he called, improvements in the nature of society developed. By that, he meant that improvements in welfare and education and so on, would lead to a diminishing of crime and the need for the prison would wither away as other non-custodial measures came to the fore.

Of course, in retrospect, that didn't happen. That prediction in 1978 proved to be spectacularly wrong because from the 1980s onwards, not just in Australia, but across the Western democracies more generally, we saw significant rises in the prison population. In the American context, we saw a fivefold increase from the 1980s through to the early 2000s. In the Australian context, we saw a doubling in the imprisonment rate over that period. So while the Nagle inquiry was very important in giving voice for prisoners’ grievances and acknowledging that what prisoners had been saying was true and not just fantasy, as prison officers claimed, nevertheless, in the longer term, its significance dwindled.  In the aftermath of the Nagle Royal Commission, a progressive commissioner, Tony Vinson, was appointed to oversee the post-Nagle Commission reforms, which he did for a period of three years. But then he was driven out as the political climate changed and he didn't have the support of the Minister. He resigned, there was a backlash, and some of the gains that were won in that period following the Nagle Commission in terms of improved prisoner conditions, greater accountability, prison officer behaviour and so on, were wound back.

They were particularly wound back during the Michael Yabsley period.  Michael Yabsley was the Minister for Corrective Services in the late 80s, a very bellicose and belligerent minister who promised to put the ‘value’ back in punishment. And during that period, there was a significant deterioration in prisoner conditions, prisoner experiences. Importantly, there was also a wave of unrest in the prisons as prisoners could see their hard-won gains being taken off them.

There is one other significant point to make about the aftermath. It is interesting to reflect on the place of analysis of Aboriginal imprisonment in the Nagle Inquiry. At that time, there wasn't a lot of emphasis. There was a relatively short chapter on Indigenous imprisonment, but that has to be put into context. The context was that Indigenous prisoners constituted 7% of the New South Wales prison population in 1976.  Now that was four times their representation in the community. So it was a significant over-representation, which should have warranted greater scrutiny, but didn't. But on the other hand, if we look now, we find a disproportion around about 14 times rather than four times. And for women, there is an even greater disproportion. Aboriginal women constituted over 20% of women's population. For juveniles in detention, it's something like 28%.

So the proportion of Aboriginal prisoners has increased very, very significantly, having more than tripled over that period of time. In some sense, the gap, or the lack of foresight in the Nagle inquiry, was that insufficient attention was paid to the disproportionate number of Indigenous prisoners and their conditions. Of course, now, these issues are very much to the fore in the whole Australian debate around disproportionate Indigenous imprisonment rates, deaths in custody, the Uluru Statement from the Heart and the high juvenile detention rate of Aboriginal and Torres Strait Islander people. These issues are now seen as really central to the whole Indigenous condition, and the lack of agency and voice and control they have over their own destiny.

IK:      

And I suppose the challenge with having an inquiry such as the Nagle Royal Commission is that after you have conducted the inquiry, and released the report and all the findings, there probably won't be another commission for quite some time.

I want to return to the topic of the accountability that did come out of the Nagle Commission. As you mentioned earlier, McGeechan was heavily criticised, but you also mentioned that there were some weaknesses to this approach, and that accountability at the local level was not so great. Could you maybe speak a bit more to that?

DB:     

Yes. There was perhaps a bigger focus on the internal Visiting Justice system, because that was really central to the maintenance of the prison officers’ control and ‘order’ such as it was within the prison. And again, there were significant differences across different jails, but by and large, as I mentioned before, the internal disciplinary system where prisoners, who, for example, asked for various entitlements or made complaints or were seen as troublemakers or agitators, were brought before a Visiting Justice. This would be an outside magistrate, who was brought in to the jail to administer those hearings. Prisoners were not entitled to call evidence. There was no legal representation. There was no records kept. There was no right of appeal from an internal disciplinary hearing, and the results could be very significant, leading to extra time served.

Now, in the aftermath of the Nagle Royal Commission, that changed, but not just due to the Commission. There was the Fraser case, where the New South Wales Supreme Court held that there was a right of appeal from a Visiting Justice hearing to the Supreme Court. Also, there were decisions made to provide legal representation through the Public Solicitor's office. That had a very, very significant effect, because it meant that the ‘kangaroo court’ nature of the system had to change, once you had lawyers in, once it was a court of record, once there was a right of appeal. The arbitrary nature of the prison disciplinary system was significantly altered in that period following the Nagle Royal Commission, through administrative changes and the court decision in the Fraser case. So there's an example of formal legal accountability being introduced into the prison, which produced a very significant change in the ability of prison officers to exercise arbitrary discretionary justice at their own local whims.  

Unfortunately, as a result of administrative changes, since that period, the significance of the visiting justice system has diminished very considerably. Now most internal charges are brought before the Governor rather than a Visiting Justice, and so there's no entitlement to legal representation.  There's no right of appeal. It's changed into a predominantly administrative system. I think ultimately that's a backwards step in terms of prison accountability, on behalf of prisoners.

IK:      

It seems like there's still some ways to go, almost 40 years on from when The Prison Struggle was published. How have you seen things develop?  What are some aspects of prison reform that you think have been positive, and what are some areas where you still think we've got a long way to go?

DB:     

I think one of the enduring legacies of the Nagle Royal Commission, and other people might disagree with this but, by and large, the endemic systematic violence, which was really a cornerstone of the whole prison system running right through to the Nagle Royal Commission, stopped with the Nagle Royal Commission. It didn't stop entirely. There were subsequent bashings, and while the Nagle Royal commission was sitting, there were some quite appalling instances happening in Goulburn jail.

But by and large, I think you have to credit the Nagle inquiry with bringing an end to that systematic routine, institutionalised, extreme violence. I think that this has to be acknowledged as a major achievement. On the other hand, the prison system has had to cope with the effects of widespread drug use and the criminalisation of drugs in the prison system. That's had very significant effects. A lot of prison life now is organised around trying to keep drugs out of prison, and administering legal drugs. There’s a very, very high level of substitute drug usage in prison that is actually administered by the department, and critics say that this is in part to pacify and keep the prisoners acquiescent. It's not a problem that's particular to the prison; it’s clearly a problem in the society at large about the way we seem to treat drug use as a criminal issue rather than a social and medical one.

The prisons have had to try to deal with it in their own way, not altogether successfully. That was something that was not really foreseen and treated within the Nagle report.  One of the other significant issues I think, I've already touched on. That is the very significant increase in the number of Aboriginal and Torres Strait Islander prisoners, and also, the significant increase in female prisoners. The proportion of women to male prisoners has increased very significantly in recent decades. Clearly that's got a lot to do with women's position in the economy, a lack of access to jobs, health issues, medical issues. Women are increasingly criminalised for forms of illness, poverty and lack of access to resources/

This is particularly the case for women who have been subject to domestic, physical, and sexual violence, who are increasingly finding themselves criminalised and in jail. Again, that's not an issue that was really foreseen or dealt with in any significant way in the Nagle Royal Commission. The great achievement, I think, is the ending of the institutionalised violence.  Where prisons have not been so successful is in dealing with the whole issue of drugs, both as a security issue and a rehabilitation issue. They haven't performed very well in dealing with the influx, the increasing disproportionate influx of Aboriginal and Torres Strait Islander prisoners and women prisoners, Also, a lot of the accountability and scrutiny measures that were partially introduced following Nagle have been wound back to become more hidden, to become more administrative rather than public measures. That's not very helpful, in terms of trying to find out what is going on. Corrective Services is not a very open department. It's often hard to get access to information in relation to what's actually going on in the prison. That's something that has not significantly improved of late, I think.

IK:      

Thanks, David. It has been a great experience for me to learn from your decades long engagement with the topic of prison reform. Thank you for the opportunity to be able to speak to you about all these issues.

DB:     

Thanks very much. I've enjoyed this and thanks for doing it.