Destruction of inmate mail may be illegal

The NSW Inspector of Custodial Services said this practice needs to end "immediately" and advice about its legality should be obtained.

The ongoing practice of destroying original mail sent to inmates in New South Wales should end “immediately” and may be in breach of the law, according to a new report by the Inspector of Custodial Services NSW.

At the onsent of the Covid pandemic, the NSW government quietly introduced a regulation requiring prisons to photocopy original mail sent to people in prison and provide this copy to the recipient and destroy the original. This was ostensibly done to prevent the introduction of illicit substances after prision visits were paused.

A similar piece of legislation was also introduced in Victoria.

The updated NSW CAS regulation related to the sending and receiving of mail to inmates, “including the circumstances in which letters and parcels may be opened for inspection or confiscated”. The regulation outlines that prison workers may copy any written or pictorial matter sent to a person in prison, and then deal with the original “in accordance with the directions of the Commissioner”, delivering the photocopied version to the person in question.

After this, the Commissioner’s Instruction was issued, outlining that prisons should photocopy all mail and provide this to the person in prison, and then destroy the original copy.

This practice may be in breach of the law and should be stopped “immediately”, the Inspector said in its report into the handling of the Covid pandemic in NSW prisons.

“The CAS Act contemplates regulations relating to the inspection and confiscation of inmate mail, not its destruction,” the report said.

But these regulations “cannot be used as a legal basis for practices that go beyond the regulation-making authority provided in the CAS Act”.

“Inmate mail has also gone from an almost non-existent subject of complaints to official visitors to one of the most frequently raised complaints by inmates,” the report said.

The review recommended the state government obtain legal advice as to the lawfulness of the destruction of original mail to inmates in NSW.

In 2019-2020 mail was not even listed as a complaint made by people in prison to official visitors. But in 2020-21 it was the third most recorded complaint, and in the following year was second.

“It has been disappointing to observe correctional centre staff and management take so little care with inmate mail given the significant additional obstacles inmates have faced to maintain contact with family and friends during the pandemic,” the Inspector said.

“This has created further distress during a difficult period that could have easily been avoided with some attention to detail and internal oversight.

“We consider that the destruction of inmate mail should cease entirely. The persistent implementation issues mean we cannot support the continuation of this practice, even if it should be found to be lawful.”

There have numerous reports of letters being photocopied poorly or in a way that makes much of the letter unreadable, and of photocopied mail being delivered to the wrong person.

Justice Action has labelled this practice as an “unprecedented deprivation of a prison’s basic entitlement to receive the original letters and envelopes addressed to them”.

“Timely delivery of mail is important for prisoners to maintain contact with family and friends, to receive time-sensitive information, to plan and prepare for release and to maintain their mental health,” Justice Action said.

“Delays and denial of access to original letters can cause significant harm to mental health with some prisoners reporting that they fear their loved ones have abandoned them when letters haven’t arrived.”