“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” – Nelson Mandela
The above sentiment might seem counterintuitive to some. After all, those convicted of serious crimes are not always seen as worthy of society’s respect.
But there is a difference between respecting someone and affording them justice – and the rule of law is supposed to apply equally to everyone in society, whether they are the Prime Minister or a convicted murderer.
The rule of law was brought into question when, earlier this year, Corrective Services Minister David Elliot instructed the Corrective Services Commissioner to send 12 life-sentence prisoners (“lifers”) to maximum security in response to a sustained campaign led by radio host Ray Hadley.
A report by the Inspector of Custodial Services, John Paget, found that the Minister direction was an example of pandering to populism over the rule of law – and was inconsistent with NSW prison regulations.
Background to the Decision
In July 2015, media reports started to circulate about 12 inmates serving life sentences who had been downgraded from maximum security to lesser classifications.
The suggestion was that those inmates – which included Arthur “Neddy” Smith, John Cribb and Anita Cobby’s killers – were getting “cushy” or “soft” treatment.
But the reports were factually incorrect, asserting that the move was recent when nine of the inmates had in fact been reclassified more than eight years ago.
As the Ray Hadley-led furore built, Minister Elliot directed that the 12 inmates be reclassified as maximum security. A letter was written to the the inmates attempting to justify the sudden reclassification, stating that it was:
“… based on significant concerns expressed by victims of crime and other members of the community in relation to the current classification policy for inmates serving a life sentence.”
The letter added that:
“I would also like to confirm that this decision is not as a result of your conduct and behaviour in custody and all our records will record this accordingly as the decision is not based on any disciplinary issue.”
The problem, as John Paget outlined in his report, is that the law does not list community and victim concerns as considerations when classifying inmates. Paget found that the Minister’s “knee jerk reaction” undermined the classification system by giving in to demands made by media personalities rather than adhering to legislation.
Reclassifying Serious Offenders
But there is one very important proviso: he must first “seek and consider the recommendations of the Review Council”, and must give “adequate notice” if he goes against that recommendation.
In this case, however, the Commissioner wrote to the Review Council after the decision had been made to re-classify the 12 inmates. This, Mr Paget’s notes, is inconsistent with his legal obligations.
In his report, Paget emphasises the importance of the classification system to the health of prisons as a whole, pointing out that the chance of getting a lower classification provides inmates with an incentive to behave well, while the fear of a higher classification acts as a powerful deterrent against misbehaviour. This, Paget says, promotes order and stability within the system.
In relation to the inmates in question, Paget says that:
“This was 12 lifers for which there is zero public sympathy, but that’s not the point. Retrospective legislation is not good for the stability of the system. Other inmates will say, am I vulnerable? We must follow the rule of law.”
But Elliot has hit back – saying that the current legislation is inconsistent with “community expectations” and foreshadowing changes to the law.