Supreme Court of Queensland finds solitary confinement orders breach human rights
Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273
Summary
Mr Michael Owen-D’Arcy, a person in prison confined to a maximum security unit, successfully applied for judicial review under the Judicial Review Act 1991 (Qld) and relief under the Human Rights Act 2019 (Qld) in respect of two related decisions that sought to continue the solitary confinement that had been imposed on him since 2013. Regarding the judicial review application, the Supreme Court of Queensland held that the decision-maker failed to consider relevant human rights considerations in making a “no association order”. The decision-maker’s decision to impose a six-month maximum security order was also unlawful because it was incompatible with, and breached, Mr Owen-D’Arcy’s “right to humane treatment when deprived of liberty”.
Factual background
Mr Owen-D’Arcy was convicted of murder in 2010 and was sentenced to life imprisonment.[1] On 29 January 2011, a six-month maximum security order was issued against Mr Owen-D’Arcy because he was considered to pose a risk of killing or seriously injuring other persons with whom he might come into contact.[2] Consequently, he was placed in the maximum security unit (MSU). Mr Owen-D’Arcy has since been issued with maximum security orders every six months, and has thus been incarcerated in the MSU since 29 January 2011.[3]
On 17 June 2020, an Executive Director within the Department of Corrective Services (pursuant to delegated authority),[4] issued Mr Owen-D’Arcy with a further six-month maximum security order (MSO Decision) and a no association order (No Association Decision) (together, the Decisions) under the Corrective Services Act 2006 (Qld) (Corrective Services Act).[5] The No Association Decision sought to prohibit Mr Owen-D’Arcy from having “contact associations” with any other persons detained in the MSU without approval.[6] Together, these two decisions largely continued Mr Owen-D’Arcy’s solitary confinement in a 3.8m long and 2.2m wide cell. Mr Owen-D’Arcy also gave evidence that he was allowed two hours of “out-of-cell time” each day, which included one hour for exercise.[7] Justice Martin accepted that the nature of the interaction that Mr Owen-D’Arcy was permitted to have with others was “unlikely to rise to the level of ‘meaningful human contact’”.[8]
Although the Decisions were made by the Executive Director of the Department of Corrective Services, the respondent to this proceeding was the Chief Executive of Queensland Corrective Services (Corrective Services).
Arguments
Mr Owen-D’Arcy sought a review of the No Association Decision under the Judicial Review Act 1991 (Qld) (Judicial Review Act) on the basis that, among other things, the decision-maker failed to take into account relevant considerations.[9] Mr Owen-D’Arcy also argued that the Decisions breached the following rights under the Human Rights Act 2019 (Qld) (Human Rights Act):
Section 17(b): the protection from torture and cruel, inhuman or degrading treatment, specifically, the prohibition on a person being treated or punished in a cruel, inhuman or degrading way.
Section 29: the right to liberty and security of person.
Section 30(1): the right to humane treatment when deprived of liberty.
Decision on the judicial review application
The Corrective Services Act does not expressly provide for the factors that Corrective Services, or a delegate thereof, was required to consider in making a relevant direction under that Act. Therefore, it was for Mr Owen-D’Arcy to demonstrate that “the matters he contend[ed] the decision-maker failed to consider were, ‘by implication from the subject-matter, scope and purpose of the Act’, matters the decision-maker was obliged to consider”.[10]
In the decision-maker’s Statement of Reasons, she stated that she had “considered the impact of not permitting contact associations within the MSU on prisoner Owen-D’Arcy’s human rights, particularly, the right to peaceful assembly and freedom of association under the Human Rights Act 2019”.[11] Justice Martin criticised this approach as being “superficial at best” because the decision-maker did not address or give consideration to the specific rights that might be affected by the No Association Decision.[12]
Justice Martin therefore upheld Mr Owen-D’Arcy’s application for judicial review, finding that the decision-maker had failed to take into consideration the effect of the No Association Decision on Owen-D’Arcy’s human rights, which was a relevant consideration for the purpose of exercising her delegated authority to make the No Association Decision.[13]
Decision on the human rights claims
Mr Owen-D’Arcy also successfully argued that both of the Decisions were unlawful under the Human Rights Act. As a “public entity” within the meaning of the Human Rights Act, the decision-maker was required to comply with section 58(1) of that Act in exercising the powers delegated to her under the Corrective Services Act. Section 58(1) of the Human Rights Act imposes two obligations on a public entity:[14]
Section 58(1)(a): not to make a decision in a way that is incompatible with human rights (Substantive Limb); and
Section 58(1)(b): not to fail to give proper consideration to a relevant human right in making a decision (Procedural Limb).
However, the rights conferred by the Human Rights Act are not absolute,[15] and Justice Martin noted that, just like in Victoria’s Charter of Human Rights, section 13(1) of the Human Rights Act embodies a proportionality test.[16] Therefore, the Substantive Limb will only be breached where a relevant act or decision places a limit on a human right and that limit is not “demonstrably justified in a free and democratic society based on human dignity, equality and freedom”.[17] The Procedural Limb, on the other hand, will be breached where a public entity fails to identify the relevant human rights and fails to consider whether a decision will be compatible with those human rights.[18] In light of these obligations, Justice Martin proceeded to consider whether the Decisions had breached any of the pleaded human rights.
Section 29 of the Human Rights Act
Justice Martin concluded that section 29 of the Human Rights Act – the right to liberty and security – was not relevant to the review of the Decisions in respect of the conditions of detention. This is because section 29 deals with the fact of detention or deprivation, and not the circumstances thereof or the treatment of persons in detention. Further, his Honour noted that a consideration of whether section 29 has been unjustifiably burdened in these circumstances would require the Court to engage in an assessment of various levels of imprisonment and determine which is most appropriate for a particular prisoner. This, his Honour noted, is not the role of the Court under the Human Rights Act.[19]
Sections 17(b) and 30 of the Human Rights Act
Section 17(b) of the Human Rights Act provides for the protection from cruel, inhumane or degrading treatment or punishment and section 30 states that all persons must be afforded humane treatment when deprived of liberty.
Justice Martin held that in order for section 17(b) to be engaged, Mr Owen-D’Arcy needed to “demonstrate, at a minimum, that the terms of his confinement are of such a nature that they can manifest in bodily injury or physical or mental suffering”.[20] However, he did not adduce sufficient evidence to establish these facts. The only evidence on this point related to Mr Owen-D’Arcy’s anxiety generated by certain events, such as the suicide of other prisoners, which his Honour considered to not be directly related to the conditions of his confinement.[21] The judgment importantly notes that:
If the applicant in this case had wanted to demonstrate the effects of isolation upon him or, more generally, the effects of isolation in a prison environment, then appropriate expert evidence should have been adduced. … There was no expert evidence which had been obtained for the purposes of this application.[22]
As such, Justice Martin held that Mr Owen-D’Arcy had not satisfied the onus of establishing that his right to protection from cruel, inhumane or degrading treatment or punishment had been limited by the Decisions.
His Honour did, however, find that the right to humane treatment when deprived of liberty under section 30 had been limited by the MSO Decision.[23] This right had been engaged because Mr Owen-D’Arcy was “subject to hardship or constraint beyond the hardship or constraint that all prisoners experienced by virtue of being deprived of their liberty” and, although he “has some interaction with other people, that interaction is unlikely to rise to the level of ‘meaningful human contact’ within the meaning of that term as it appears in the Mandela Rules”.[24] Justice Martin also considered it to be relevant that Mr Owen-D’Arcy had not been told how he might behave in order to have these conditions changed or removed, or even whether this was a possibility.[25]
Was the right in section 30 breached?
As Mr Owen-D’Arcy had demonstrated that his right to humane treatment when deprived of liberty had been limited, Corrective Services was required to establish that this limitation was justified with reference to the criteria set out in section 13(2).[26] Justice Martin held that this limitation was not justified on the basis that:
the decision-maker did not provide any basis for her belief that no alternative was available that could adequately manage the risk posed by Mr Owen-D’Arcy;[27]
there was a possibility of reintegrating the applicant into the mainstream population before the end of the six-month period;[28] and
the decision-maker did not appear to have given any sufficient weight (or any weight at all) to the fact that the making of these Decisions was not just for six months, but for a further six months on top of the more than seven years of MSOs which preceded the Decisions.[29]
Therefore, in making the MSO Decision, the decision-maker acted incompatibly with section 30 of the Human Rights Act and therefore contravened the Substantive Limb of section 58. The MSO Decision was therefore unlawful.
In respect of the Procedural Limb of section 58, his Honour held that the No Association Decision engaged section 30, but this right was not considered in the making of the No Association Decision.[30] First, on judicial review, Justice Martin held that the decision-maker was required, but failed, to take into account Owen-D’Arcy’s relevant human rights as a “relevant consideration”. Secondly, and relatedly, the decision-maker contravened the Procedural Limb of section 58 by failing to address and consider the relevant human rights impacted by the No Association Decision, including the right to humane treatment when deprived of liberty. Therefore, the decision-maker also breached the Procedural Limb of section 58 when making the No Association Decision.[31]
Commentary
Justice Martin upheld Mr Owen-D’Arcy’s judicial review application on the basis that certain human rights in the Human Rights Act constituted relevant considerations to which the Executive Director of the Department of Corrective Services was required to turn her mind when exercising her delegated authority under the Corrective Services Act. Because these relevant human rights had not been considered, the Court held that the decision-maker did not have jurisdiction, in accordance with the Judicial Review Act, to make the No Association Decision.
This reasoning is particularly relevant, given that the first hurdle to instigating human rights proceedings is satisfying the “piggy-back” requirement of section 59 of the Human Rights Act. In other words, an applicant can only bring a human rights claim if it is being brought on the back of an application for relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was unlawful other than because of section 58 of the Human Rights Act (Primary Claim). Framing the Primary Claim as one where the decision-maker erred in failing to take into account a person’s human rights, as was done in this case, will assist prospective litigants to bring human rights claims.
The full text of the decision can be found here.
Jake Herd is a Solicitor at King & Wood Mallesons.
[1] Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [16] (Owen-D’Arcy).
[2] Ibid [18]. This order was issued pursuant to s 60 of the Corrective Services Act 2006 (Qld).
[3] Ibid [18].
[4] This delegation was made under the Corrective Services Act 2006 (Qld).
[5] Owen-D’Arcy (n 1) [7], [8].
[6] Ibid [20].
[7] Ibid [152]. The United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), which provide a best practice framework for the treatment of prisoners, condemns “prolonged solitary confinement”. This is defined as confinement of prisoners for 22 hours or more a day without meaningful human contact for longer than 15 consecutive days: Mandela Rules r 44. This type of confinement may also contravene art 7 of the International Covenant on Civil and Political Rights: Owen-D’Arcy (n 1) [163].
[8] Owen-D’Arcy (n 1) [239].
[9] Ibid [68].
[10] Ibid [67] (emphasis in original), citing Minister for Aboriginal-Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (Mason J).
[11] Owen-D’Arcy (n 1) [78].
[12] Ibid [80].
[13] Ibid [81].
[14] Ibid [125].
[15] Human Rights Act 2019 (Qld) s 13.
[16] Owen-D’Arcy (n 1) [104].
[17] Human Rights Act 2019 (Qld) s 8(b), 13(1).
[18] Owen-D’Arcy (n 1) [134].
[19] Ibid [234].
[20] Ibid [190].
[21] Ibid [190].
[22] Ibid [161], [165].
[23] Ibid [240].
[24] Ibid [239].
[25] Ibid [242].
[26] Ibid [243].
[27] Ibid [250].
[28] Ibid [251].
[29] Ibid [253].
[30] Ibid [265].
[31] Notably, with respect to the MSO Decision, the decision-maker satisfied the procedural limb of section 58 because she specifically identified this right in making the decision: Owen-D’Arcy (n 1) [262], [266].