The rights of Australians in custody in the time of COVID-19

Black spray painted stencil on a white wall of a face mask and text "COVID-19" photographed in Warsaw, Poland. Photo: Adam Nieścioruk/ Unsplash


By Rouein Momen

The Australian response to COVID-19 has not been all-encompassing, legal groups warn, with some raising the issue of prisons being one of the blind spots that might very well undo the early successes experienced in flattening the curve of the expansion of the virus.

The basics of the problem are very simple. Prisons are overcrowded, confined spaces where the spread of the coronavirus could follow a trajectory much steeper than what is experienced in free society. Prisoners also tend to have a higher rate of chronic illness and a record of poorer health compared to the non-incarcerated population. The result of this unfortunate mix is a ticking time bomb - where the introduction of the virus to the prison environment could bring disastrous outcomes.

Australian prisons cannot afford to face the risk of coronavirus. The number of people incarcerated in Australia sits at a record high of more than 43,000 people. One only needs to add to this picture the disproportionate rate of incarceration of the Aboriginal and Torres Strait Islander people to fully realise the direness of the situation.

The effects of a deadly breakout of coronavirus in any given Australian prison is not bound by the geographical limits of the prison building. Nearly one third of Australian prisoners are not sentenced, meaning they will be leaving prison after the short remand process. Many will have lost jobs and homes and thereby the ability to self-quarantine. Any rapid spread of the virus amongst prisoners is bound to find its way out.

The importance of the fate of prisoners during the COVID-19 crisis is an international concern. The United Nations has warned that there might be up to 11 million prisoners and prison staff worldwide facing the dangers of the spread of the virus. The World Health Organization (WHO) – based on the findings of a commission headed by the Australian health expert Stuart Kiner – has advised nations around the world to release prisoners to the extent possible.

Some countries have gone on to heed the recommendation made by WHO. Iran has released 70,000 of its prisoners, whilst Indonesia has decreased the number of people incarcerated by 30,000, by releasing people jailed for less serious offences. In both cases the measures were introduced as preventative acts before the virus was present inside any prison. Australia – at the time of writing – has only put its prisons under lockdown. In other words, Australia has mainly tried to cut the route off so the virus cannot get in, but if it does so, the lives of the 43000 vulnerable Australians in custody will be at risk. 

A group of almost 400 lawyers, ex-politicians and activists have been urging the federal and states governments to protect vulnerable prisoners and free as many as possible. The main obstacle they face is the public fear and sentiment against letting criminals and ‘dangerous people’ free. However, their proposals offer the solution of releasing prisoners who are likely to be released in the next six months.

Another group at the forefront of advocating for the protection of prisoners during the COVID-19 crisis is the National Aboriginal and Torres Strait Islander Legal Services (NATSILS). They are understandably concerned about the First Nations People in custody and cite Australia’s Chief Medical Officer, Professor Brendan Murphy, who predicted Aboriginal and Torres Strait Islander people would be more vulnerable to the spread of COVID-19.

NATSILS has released a policy statement encouraging the government to start a program aimed at freeing incarcerated vulnerable First Nations People. Elderly First Nations People and people with pre-existing medical conditions, disability and mental health conditions would be included in any release plan. They suggest that the police, the courts and governments at all levels should aim to create a justice system which is understanding of the needs of the vulnerable people at risk in the face of the pandemic.

Griffith Law School’s Associate Professor Susan Harris Rimmer and Stephanie Cook have called for a charitable bail fund to be established for prisoners in need. In the US, these groups assist accused men and women who cannot raise bail. The organisations pay on their behalf, and when the defendant appears for their court date, the money is returned to the charity to be used again. A/Prof Harris Rimmer suggests a similar model could work in Australia, and would help keep low-risk, non-violent defendants out of prisons during the pandemic.

In its fight against the coronavirus the Australian government should ensure there are no blind spots and that it considers the rights of all members of the community. It remains to be seen what path the government will take to respond to the concerns, and protect the health of this vulnerable group of incarcerated Australians.

If you are interested in the protection of the health of prisoners in these times of crisis, you can follow the progress of NATSILS at With the families of people who have died in custody, NATSILS has a social media campaign called #CleanOutPrisons. The campaign asks supporters to photograph themselves with a bar of soap, which is not available in some prisons, and send the soap with a note to a prison, to be provided to a prisoner:

Alternatively, you can join this petition calling for prisoners with sentences of two years or less to be freed and put under home quarantines.  This petition from the Aboriginal Legal Service asks for sick people to be able to serve home detention during the pandemic.


Rouein Momen is a final year student in the Bachelor of Laws and Arts (Honours) at UNSW Sydney and was the Student Editor for the Human Rights Defender magazine, Term 1, 2020.