Early last year, the Western Australian Ministry of Justice invited expressions of interest from the private sector for the design, construction and management of the State's first privately operated, 750-bed, adult prison at Wooraloo. Four consortiums were selected to proceed with their proposals and compete with each other for the final contract.¹ The character of the new prison is thus currently being formed. Such a development in W.A. brings home the philosophical and pragmatic debate that has accompanied the privatisation of penal services in other jurisdictions. Australia, being the second western, anglophone country to commission and open a private prison (at Borallon, Qld in 1990), has confronted these issues before.²

However, it would appear that in W.A. at least, public awareness of, or debate about, the trend is not widespread. This may be due to the camouflage of such a decision in a prevailing political and economic climate of privatisation and contracting out of public services in general. The shift to private prison services is likely to be automatically accepted by some as legitimised by the popular ideology of the time. However, government's responsibility for punishment, and its power over individual offenders are far more serious and consequential than its responsibility to deliver telecommunications, for example. At its essence, punishment is both a moral and a public issue because it involves deprivation or suffering imposed by law, administered by public representatives, without the consent of the person being punished. It is therefore pertinent to question whether penal institutions might desirably be operated as private businesses. Possibly the most challenging aspect of this inquiry is whether, and how, public accountability for punishment can be guaranteed and enforced in the delegation of prison administration. Western Australia accords significant attention and priority to crime rates and criminal justice policy. In light of the high value placed by our society on civil rights, the community's interest in avoiding offender recidivism, and the large amounts of public money spent on prison operations, the role and accountability of private prisons are worthy of exploration.

It is important to clarify at the outset that privatisation of prisons does not refer to a total divestiture of prison ownership, but rather the delegation of service delivery (including the design, construction and management of correctional facilities) to the private sector, which is then funded by collective finances. Also crucial is the distinction between the determination and the administration of justice. There is no suggestion (yet), even by the strongest advocates of private prisons, that the state should delegate its authority to determine punishment. Rather, contracts envisage the private administration and management of that punishment once determined by the state. In practice, there are overlapping areas of concern, as discussed further on, and ensuring that the two roles do not blur into each other constitutes a key aspect of accountability.
 

Why Privatise, Why Now? 

In the US especially, the move to private prisons was a pragmatic response by certain states to crises in prison populations, the resultant overcrowding in existing facilities and the inability of governments to finance new institutions.³ While these factors have existed to lesser extents in the UK and Australia, somewhat different forces have steered the changes in these countries; primarily, the ideological drive prevalent in the UK through the 1980's and currently in Australia, which has been described as a "pathalogical antipathy to the public sector per se, accompanied by a largely untested belief that the quest for profits automatically increased the economic efficiency of virtually any enterprise." ⁴

Linowes also sums up general attitude aptly, 

that the federal government has become too large, too expensive, and too intrusive in our lives. The interest also reflects a belief that new arrangements between the government and the private sector might improve efficiency while offering new opportunities and greater satisfaction for the people served. ⁵

Ryan and Ward put the argument more directly; prison privatisation is on the agenda because the New Right want the state to do less as a matter of principle.⁶ In the case of law and order, however, there is a somewhat paradoxical approach by this New Right position; there is a call for the state to be more involved and interventionist in the control of individual activities, yet less involved in carrying out the consequences. As Andrew Gamble has commented, "A minimal state does not mean a weak state. On the contrary, the state has to be strong to secure the conditions in which a free economy can work".⁷ Ryan and Ward's analysis suggests that private prisons will do little to challenge that expansion of control or the increasing authoritarianism demanded by capital-intensive, cost-effective systems.⁸ It is worth keeping in mind that the introduction of private prisons is as much about supporting an ideological system and those it benefits, as it is about saving money or improving quality of service.

Harding asserts that crux of the justification for contracting is not purely financial but rather value for money - penological accomplishments together with effective financial accountability. He sees the primary value of private sector involvement not in its ability to operate more effectively than the public system, but rather to impact upon and improve the total prison system through a process of cross-fertilisation ⁹ - enabling the strong and weak aspects of the two components to emerge and areas for productive cross-fertilisation to be identified. 

However, as other commentators have pointed out, it is very difficult to speculate about the cause and effect of different approaches on the total system. Research conducted by Bottomly and James into The Wolds (England's first private prison) and broader system-wide changes in the UK prison service challenge Harding's cross-fertilisation theory in two ways; firstly in raising the methodological difficulty of proving cause and effect, and secondly in disagreeing that the private sector was a catalyst for prison service reform as opposed to a new competitive ethos brought about by the possibility of competition rather than privatisation per se.¹⁰

Another concern arising from cross-fertilisation theory is its tendency to focus on a uni-directional flow of superior private practices into public systems. There seems to be an inadequate conception of the positive aspects of the public sector, which should be better incorporated into a model of cross-fertilisation. For example, research by Moyle into the Queensland prison system shows that commercial interests have seriously restricted the operation of freedom of information legislation and increased the use of defamation - developments which have stifled public debate and decreased levels of accountability.¹¹

In fact, in a later article, Harding acknowledges the skepticism about cross-fertilisation theory, adding that the UK Chief Inspector of Prisons "did not see any direct evidence that the lessons of good practice learned from these [private] establishments are being applied to the management of establishments run in the Public Service".¹² But some contrasting examples do show clear evidence of adoption of specific methods into the public system (ie anti-bullying models).