NSW will no longer have the power to surveil conversations between incarcerated people and legal practitioners, after a disallowance motion moved by Greens justice spokesperson Sue Higginson passed the Legislative Council with the support of the Opposition and the entire crossbench.
Members of Parliament, police, and legal practitioners are exempt from surveillance under regulation, meaning any phone calls or letters between those persons and inmates cannot be monitored or recorded. A regulation made earlier this year restricted the surveillance exemption to legal practitioners who gave legal advice to specific inmates.
The 2024 Inquiry into prison guard Wayne Astill's sexual offending against female prisoners raised concerns that prison guards had "systematically" used information "gleaned from monitoring inmate calls, visits and letters as a means of intimidation".
Greens MP, spokesperson for Justice and solicitor Sue Higginson said:
"Conversations between lawyers and incarcerated people should not be monitored by the state.
"Incarcerated people have a right to access lawyers free of state interference, lawyer and client confidentiality and legal professional privilege are important basic tenants of access to justice,
"Women in prison who were victims of Wayne Astill's heinous sexual offending were terrified of raising their experiences because they knew prison guards were spying on their conversations with lawyers unlawfully. This practice has continued under the Minns Labor Government and Minister for Corrections Anoulack Chanthivong, and to date he has done nothing to protect the privacy of vulnerable people in custody, he has only made regulations that increase the risks of this happening again,
"The Minns Labor Government made a clumsy and authoritarian attempt to intercept conversations between lawyers and incarcerated people by regulation, but this attempt has failed after the parliament disallowed the regulation,"
"The ramifications of breaching legal professional privilege by spying on conversations with lawyers are severe. The Supreme Court has been clear that Courts can permanently stay any proceeding where a breach of legal professional privilege has been identified, meaning this regulation could have risked entire criminal cases being thrown out,
"I have no doubt that Corrective Services routinely spy on conversations that inmates have with me, even though Members of Parliament are also exempt from surveillance. Prison guards often retaliate against incarcerated people who are seeking my assistance with urgent health issues and matters of injustice,
"I have written to the Minister for Corrections raising these concerns and I have been ignored. It wasn't until Minister Chanthivong was questioned by journalists that he gave any assurance that my allegations of unlawful conduct were being investigated. It shouldn't be journalists' job to persuade the Minister to do his job,"
"The Minister for Corrections is wilfully overseeing a system of rampant non-compliance with the law in which privileged conversations can be spied upon. His continued inaction has created a significant mess and he must act to clean it up, or the parliament and the press will keep doing it for him," Ms Higginson said.
