Guest post: the incarceration of radicalised prisoners in New South Wales

In this guest post, Katrina Zorzi discusses changes to the management of radicalised prisoners in New South Wales and what this might imply for Victoria and other states.

In the past year, the New South Wales government has ushered in a raft of changes to the management of radicalised prisoners. This post provides a short outline of these changes and offers some thoughts on an inspection by the NSW Inspector of Custodial Services, some recent changes that have been either implemented or proposed, and some of the national security and human rights dilemmas raised by this issue.

Goulburn Supermax

The rise and fall of the Islamic State’s ‘Caliphate’ and the apprehension of Australian-based IS supporters has increased the need for a workable, sustainable policy on incarcerating terrorists. In NSW, discussions around the incarceration of radicalised prisoners frequently centre on Goulburn’s ‘High Risk Management Correctional Centre’ Supermax facility.

There are reportedly 40-50 prisoners housed within the Goulburn Supermax. Not all are radicalised or terrorist inmates who are thought to be risks to national security (Ivan Milat, for one, is reportedly an inmate at the Supermax) though more than half are there on terror-related charges. In 2016 NSW Corrective Services Commissioner Peter Severin told The 7:30 Report that: “Supermax was built for extremely violent offenders… It wasn’t built and designed for people who pose a threat to national security.” The decision to house a broader array of radical inmates there reportedly dates from August 2015, when radical preacher Junaid Thorne – who was jailed for booking airline tickets under a false name – was transferred there. Individuals arrested in 2005’s Operation Pendennis, for example, which disrupted two terror cells in Sydney and Melbourne, were already housed in the Supermax.

Goulburn Supermax has gained a lot of media attention in the past few years, generally focused on the convicted and accused terrorists housed there. In 2016, anonymous senior counter-terrorism officials told The 7:30 Report of their concerns that youth terrorism suspects held within Goulburn’s Supermax facility were being further radicalised by extremist adult inmates. In April 2017 The Weekend Australian featured an article by Paul Maley, who had been given access to Goulburn Supermax, which featured insights from the Supermax’s intelligence unit and detailed the day-to-day living conditions of the radicalised prisoners. Last month it was reported that a prisoner within the facility had attacked and injured two guards.

One aspect that has not been reported on for some time is the inspection announced in 2016 by the NSW Inspector of Custodial Services.

The not-yet-public inspection

The NSW Inspector of Custodial Services (ICS) is a statutory agency tasked with “providing independent scrutiny of the conditions, treatment and outcomes for adults and young people in custody, and to promote excellence in staff professional practice”. The ICS has jurisdiction over all correctional facilities in NSW and an inspection can be initiated by either the Inspector, the Minister for Corrections, a Parliamentary Joint Committee or a public authority or official.

In April 2016, the ICS was tasked to undertake an inspection on the “Management of radicalised prisoners in the NSW correctional centres”. The centres identified to be examined in the inspection were: the Metropolitan Remand and Reception Centre, the Mid North Coast correctional Centre, the Lithgow Correctional Centre, the Goulburn Correctional Centre and its High Risk Management Correctional Centre.

However, it is not clear what has come of this inspection. In October 2016, the ABC reported that the review was expected to be handed down to the State Government in November. And, presumably, for it to be made public sometime after this. However, as of early March 2018, the report is still not publicly available on the ICS’s website. The ICS still lists the inspection into the management of radicalised prisoners as a ‘current inspection’.

Yet the ICS’s 2016-2017 annual report mentions the inspection in past tense, articulating that:

Pursuant to a request by the Minister for Corrections and in accordance with section 6(1)(f) of the Inspector of Custodial Services Act 2012, a review of the management of radicalised inmates in NSW prisons was commenced on 22 April 2016… The inspection examined approaches and practices relating to the risk assessment, classification, designation, placement, and management of inmates, conditions within centres, and offender programs and services. Over 200 CSNSW staff were consulted, as well as executive and specialist staff.

If it is not reading too much into the use of past tense it would suggest that the inspection has long been completed.

The 2016-2017 annual report also asserts that: “The ICS publishes all reports and responses to reports on its website”. That the inspection report is not publicly available might be for a few reasons. It might simply have not been posted on the ICS website as an oversight. It is also possible that publishing has been withheld on national security grounds, provisions for which are built into the Inspector of Custodial Services Act 2012. The lack of even a public statement on the inspection or a redacted version is disappointing, given the potential for ICS reporting to bring transparency to the way in which NSW deals with radicalised prisoners.

The remit of the ICS’s inspection into radicalised prisoners in NSW would suggest that they are housed in a number of prisons across the state, not just in Goulburn’s Supermax facility – despite the fact that most media reporting tends to focus on that prison. This relatively high level of media reporting might be due to the notoriety increasingly attached to that facility or a prison management decision to sporadically permit or encourage such reporting. Maley’s article thus offers a rather unique insight into the prison. In this way, Goulburn Supermax has perhaps been more subject to media scrutiny than other prisons situated within NSW corrections housing terrorist or radicalised inmates.

There have also been several changes announced in the NSW government’s approach, though it is impossible to know if they are a result of the ICS’s inspection.

Recent change: extended detention

In October 2017, ahead of the Council of Australian Governments (COAG) meeting on counter-terrorism in Canberra, the NSW government announced its intention to usher in measures that would allow the ‘indefinite detention’ of radicalised prisoners. In November the Terrorism (High Risk Offenders) Bill 2017 was passed in NSW state parliament, which complements laws introduced at the Federal level in 2016. Under the changes, an inmate in a NSW prison could be designated as a radicalised national security threat and be jailed for up to an additional three years. Radicalised inmates would undergo a rehabilitation assessment and a medical assessment presumably to determine whether they were still ‘radicalised’ and posing a threat to the community. The process to initiate this would be done at the behest of the state’s attorney general to the Supreme Court. There is the potential for these extensions to continue in perpetuity.

At the time, NSW Counter Terrorism and Corrections Minister David Elliott explained that evidence would be gathered from a range of agencies to determine whether a prisoner was radicalised and thus representing an unacceptable risk to the community. Such evidence “would include radical behaviour, letters, interactions, treatment of staff within the corrections establishment, treatment of other inmates”. Elliott went on to assert: “It is unfortunate that we have to introduce what are potentially the toughest anti-terrorism laws in the world – but what would be more unfortunate is if somebody who was radicalised in a prison and was then released and did harm.”

Why up to three years? It is not clear what the logic is behind this. Presumably it would be much more difficult for the NSW government to muster support for longer extensions to prison sentences given the human rights issues potentially at play. Whether there are current or viable future ‘deradicalisation’ or disengagement programs being run in the NSW prison system that authorities believe can work in three years or less is another potential consideration.

Another issue is that the concept of radicalisation – and thus the nature of what it means to be ‘radicalised’ too – is contentious. What the threshold for determining whether an individual is ‘radicalised’ and so constitutes an ongoing threat to national security is unclear. Whether there is room in this approach for an inmate to maintain a radical political ideology but disavow violence is also unclear. No doubt any declaration of the sort would be greeted by authorities with a healthy dose of scepticism.

Proposed change: new facility

The scale of this is set to increase, following the announcement last year that the NSW government was spending $47 million to build a new ‘mini-max’ facility within Goulburn’s Supermax for radicalised inmates. A logical inference would be that this is intended to address the problems raised by Severin (that Goulburn Supermax was built for violent offenders, not offenders who pose a risk to national security).

This is supported by Maley’s reporting in April 2017, which highlighted that Corrective Services NSW was looking at a ‘differentiated’ approach of separating radicalised inmates (presumably from the broader prison population) and also anticipated that the ICS report on the management of radicalised prisoners would make recommendations in favour of this too.

That $47 million will now be spent on a specialised facility within the Goulburn Supermax would suggest that, at least in part, the practice of centralisation and separation for radicalised inmates is being given a boost.

Proposed change: juvenile justice strategy

The changes continue, as in February this year the NSW government announced that it intended to create a ‘countering violent extremism’ unit within the juvenile justice system to designate and monitor youth inmates who constituted national security threats. It would also work to identify inmates ‘at-risk’ of radicalisation and involve them in ‘deradicalisation’ programs. NSW Premier Gladys Berejiklian highlighted that “this new strategy complements other initiatives such as our post-sentence detention scheme and stronger parole provisions”.

Further thoughts

The NSW government’s approach is not the only way to address this issue. There are some good media articles which articulate the different approaches taken by New South Wales and Victoria to managing offenders convicted of terrorism or terrorism-related offences. ANU’s Dr Clarke Jones and others have commented publicly and written at length on this topic. However, Severin expected that changes in Victoria might bring it closer to the NSW model. And recent reports also quote Victorian Premier Daniel Andrews as being supportive of having a federal prison facility solely for terrorist prisoners – in direct contrast to Victoria’s existing arrangements.

From a national security perspective, it is understandable that authorities are unwilling to risk releasing any individual they suspect still harbours violent extremist goals.

I am not convinced that complete transparency, for its own sake, is necessarily in the community’s best interest when it comes to national security. However, greater overtures could be made to transparency regarding the processes internal to the NSW government that have initiated these wide-ranging changes to policy and now practice. This is where the benefit of having strong mechanisms of oversight and public trust in institutions often kicks in. At the same time, of course, few people are going to be willing to go into bat for the rights and liberties of terrorists and the NSW government is probably quite confident of the public’s acceptance of such measures.

From a human rights perspective, things might look a bit different. Especially considering that some of these changes concern the incarceration of minors. We might expect that a new, purpose built facility for radicalised inmates will create qualitatively different conditions of life for inmates – for better or for worse. This aspect is much better commented on by someone with an advocacy, human rights or legal background.

But it is a good time to pause and take stock of the ways in which NSW deals with its incarcerated, radicalised population. We might also consider whether, for Victoria and other states, this represents the way of the future or a cautionary tale.

Katrina Zorzi is a sessional academic at Monash University, Charles Sturt University and Deakin University.

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