The legality of solitary confinement and the direction Australian policy should take

In Australia there is little regulation of solitary confinement. Each state jurisdiction confers wide discretion on the senior prison administrator’s decision-making powers. This relatively unfettered power is worrying; prisoners become one of society’s minorities upon incarceration, and their rights are vulnerable to being overlooked or abused.[1] Segregation orders are also less amenable to judicial review, due to the broad nature of legislative powers vested in prison officials and the reluctance of courts to intervene with the administration of the corrections system.[2]

The complexity of this issue is multi-faceted. For policy makers, the law must be broad enough to grant corrections administrators’ sufficient power to fulfill their duty of care to their staff and the other prisoners.[3] From a human rights perspective, there is little support for resorting to this particularly harsh measure. According to the UN special rapporteur Juan Mendez, imposing such mental suffering would be ‘beyond any reasonable retribution for criminal behaviour’.[4] Solitary confinement may also constitute a breach of the Convention against Torture[5] and the International Covenant on Civil and Political Rights.[6]

In Binse v Williams, Charles JA recognised the importance of giving prison administrators ample discretion to fulfill their role, noting that the ‘consequences of an erroneous decision…may be disastrous in terms of security relevant policy concerns’.[7] Accordingly, segregation provisions are construed broadly; permitting solitary confinement orders when safety concerns are present, or when confinement would assist with maintaining administrative order. It is in this context that the courts would appear to look favorably on decisions carried out by prison officials, if executed for the purpose of ‘general administration’, so long as there are no contraventions of other relevant provisions.[8]

State correction laws differ regarding when solitary confinement becomes ‘prolonged’. In Victoria, the Secretary is entrusted to determine when the isolation is ‘no longer necessary’, and only then will solitary confinement cease.[9]  In South Australia[10] and Tasmania, [11] the duration of solitary confinement remains un-regulated. Conversely, Queensland has the most regulated segregation practice, with a maximum duration of 7 days[12] and compulsory medical checks before and after the confinement period.[13]

The lack of uniform solitary confinement regulation amongst the states is alarming, given that prolonged solitary confinement can cause extensive damage to the prisoner’s psyche and physical condition. In Davies, Street CJ acknowledged the ‘intense severity’ of this type of detention, observing that 12 months of solitary confinement could be equated to nearly 2 years of standard imprisonment.[14]

There has been no international consensus or standard applied with regard to prolonged solitary confinement.[15] Standards vary across the globe, with confinement periods ranging from anywhere between a few weeks, to three years,[16] to 40 years.[17] However, under the UN standard minimum rules addressing the treatment of prisoners, solitary confinement pertains to segregation lasting for 22 hours or more without any social interaction. The segregation will constitute ‘prolonged solitary confinement’ after 15 consecutive days.[18] Mendez concluded that solitary confinement should only be reserved for ‘exceptional circumstances’ where the duration must be ‘as short as possible’.[19] The revision and the United Nation’s subsequent adoption of the Nelson Mandela Rules also reiterate that indefinite and prolonged solitary confinement is unlawful.[20]  

The European Court of Human Rights (‘ECHR’) has progressively condemned the debilitating effects of solitary confinement, recognising that this practice ‘can destroy personality and constitute a form of inhuman treatment which cannot be justified by the requirements of security or any other reason’.[21] Although international law is not binding on domestic jurisdictions, it can be informative and guide domestic policy and the implementation of legislation. For example, the ECHR resolutely maintains cautionary processes that must be adhered to when issuing a solitary confinement order.[22] Some aspects to take into account include the prisoner’s physical health,[23] as well as the option to seek judicial review.[24]  The ECHR has been praised for the ‘clear rules, proportion, balance and defence of the fundamental values of suspects’ that consistently influences the court’s decisions.[25]

What direction should Australia’s corrections legislation take in the future? Australia should model policies and subsequent regulations on solitary confinement in line with the approach of the ECHR. Similar to the ECHR, there should be minimum restrictions and safeguards implemented to monitor the conditions endured by prisoners in solitary confinement. Australia should adopt a strong stance on prohibiting the use of prolonged solitary confinement, as defined by the UN special rapporteur report.[26] Where solitary confinement must be utilised, prison administrators should be subject to more scrutiny. For example, correction institutions could undertake more frequent and compulsory reviews to ensure the prisoner’s wellbeing. Perhaps the biggest challenge for future corrections legislation is exploring what other measures are available to prison administrators to deal with potentially dangerous inmates that put other people at risk.

Arguably, prisoners are primarily in detention as a means of protecting the community and for rehabilitative purposes.[27] Solitary confinement achieves neither purpose, thus if the practice cannot be abolished, it must be strictly regulated.

Kelsey Montgomery is a University of Western Australia law student. She undertook a student placement at the HRLC in December 2015. You can follow her on Twitter @kelsey_monty. 

[1] Peter Scharff Smith, ‘Solitary Confinement: An Introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement’ (2008) 18 Torture Volume 56, 56. 
[2] Matthew Groves, ‘International Law and Australian Prisoners’ (2001) 24 University of New South Wales Law Journal 17, 20.
[3] Binse v Williams [1998] 1 VR 383 383, 392.
[4] United Nations Standard Minimum Rules for the Treatment of Prisoners (The Mandela Rules), GA Res 2015/20, UN ESC Res, 3rd Comm, 70th sess, Agenda Item 106. UN Doc A/c.3/70/L.3 Rule 444, [72].
[5] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 1; art 16.
[6] International Covenant on Civil and Political Rights, opened for signature 16 December 1966 UNTS 2200A (entered into force 23 March 1976) art7; art 10(3).
[7] Binse v Williams [1998] 1 VR 381, 394.
[8] Matthew Groves, ‘International Law and Australian Prisoners’ (2001) 24 University of New South Wales Law Journal 17, 56.
[9] Corrections Regulations 2009 (Vic) s 27(2).
[10] Correctional Services Act 1982 (SA) s 36(4).
[11] Corrections Regulations 2008 (Tas) s 7(1)(a); Correctional Services Act 2016 (NT) s 41.
[12] Corrective Services Act 2006 (Qld) s 121(2).
[13] Ibid s 121(3) (a);(b).
[14] R v Davies (1978) 68 Cr App R 319, 322.
[15] Juan Mendez, Special Rapporteur, Torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/66/268 (5 August 2011) [61].
[16] A.B. v. Russia (2010), Application No. 1439/06, Eur Court HR, [135].
[17] Amnesty International, USA: The Cruel and Inhumane Treatment of Albert Woodfox and Herman Wallace (8 January 2016) Amnesty International < http://www.amnesty.org.au/action/action/38395/?gclid=CMKKwfbzvMoCFZSUvQody_UC0g>.
[18] United Nations Standard Minimum Rules for the Treatment of Prisoners (The Mandela Rules), GA Res 2015/20, UN ESC Res, 3rd Comm, 70th sess, Agenda Item 106. UN Doc A/c.3/70/L.3 Rule 444.
[19] Mendez, above n 15, [75].
[20] United Nations Standard Minimum Rules for the Treatment of Prisoners (The Mandela Rules), GA Res 2015/20, UN ESC Res, 3rd Comm, 70th sess, Agenda Item 106. UN Doc A/c.3/70/L.3 Rule 43.1.
[21] Ilaşcu and others v. Moldova and Russia (2004), Application No. 48787/99, Eur Court HR [432].
[22] Mendez, above n 15, [35].
[23] A.B. v. Russia (2010), Application No. 1439/06, Eur Court HR, [108]; Palushi v Austria (2009) Application No. 1439/06, Eur Court of HR [72].
[24] Ibid [11].
[25] Michael Kirby, ‘Terrorism and the Democratic Response’ (2004) University of New South Wales Law Journal 28(1) 221, 244.
[26] Mendez, above n 15, [26].
[27] International Covenant on Civil and Political Rights, opened for signature 16 December 1966 UNTS 2200A (entered into force 23 March 1976) art 10(3); Corrective Services Ministers’ Conference, ‘Standard Guidelines for Corrections in Australia’ (National Guidelines Framework, Corrective Services Ministers’ Conference, 2012) 3 <http://assets.justice.vic.gov.au/corrections/resources/d16d61ab-ea20-4277-9cfe-adc2ee5162d8/standardguidelines%2b2012.pdf>.