A further punishment other than that imposed by the courts? A breach of Australia’s international human rights obligations? PETER NORDEN AO explores these questions in the following brief extracts from his paper, published in 2019.
The Mannheim Centre for Criminology at the London School of Economics sees solitary confinement as ‘the most extreme sanction which may be legally imposed on prisoners’.
Under the Victorian Corrections Regulations 2009 it is specified that ‘If reasonable for the safety or protection of the prisoner or other persons, or the security, good order or management of the prison, the Secretary may, in writing, order the separation of a prisoner from other prisoners’ (Corrections Victoria 2009: 27.1), but that ‘the amount of time a prisoner is separated must not be longer than is necessary to achieve the purposes set out in sub-regulation (1)’ (27.2).
The Norwegian Centre for Human Rights in a recent report on the use of solitary confinement in prison called for ‘a critical review of the statutory grounds for solitary confinement, including the introduction of more precise legal requirements of use and stricter criteria for the exercise of discretion, and the introduction of strengthened rights for prisoners in administrative proceedings’ (Norwegian Centre for Human Rights 2012:72).
Administrative segregation (eg solitary, maximum security) is said ‘to separate those deemed to pose a significant threat to institutional security from the general population’, disciplinary segregation being ‘imposed as a sanction after a disciplinary hearing related to a specific instance of misconduct’…
The recent Mandela Rules represent a substantial and qualitative difference from the United Nations Minimum Rules outlined in the earlier edition of 1955. They are effectively a ‘game changer’ which is why it is so significant that the Victorian Department of Justice has failed to incorporate them into their Management Standards and their Sentence Management Manual.
Rule 1 clearly states:
‘No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification’ (United Nations 2015, 1). In clearly stating that the purpose of a sentence of imprisonment is to ‘protect society against crime and to reduce recidivism’ (Rule 4.1) it also stipulates in the same section that imprisonment must be used to ensure ‘the reintegration of such persons into society upon release’.
The Mandala Rules determine that any form of isolation must be authorised by law or the regulation of the competent authority (Rule 34.d) and that ‘Prison administrators shall ensure proportionality between a disciplinary sanction and the offence for which it is established’ (Rule 39.2).
Beyond legislation, regulation and management manuals, there is yet another form of documentation that impacts on the imposition and management of solitary confinement in Victorian prisons, called the Deputy Commissioner’s Instructions. In September 2016, an instruction was issued titled: ‘Separation Regimes’ (Corrections Victoria 2016b). Among other detailed specifications of diverse separation regimes, it outlines the ‘circumstances that might give rise to being considered for placement in a restricted regime unit’.
These include being dismissed from work; refusal to work; being returned from another prison for misbehaviour; problematic behaviour; to cool off following a minor altercation and to provide for the safety of a prisoner who appears in need of protection.
* Peter Norden AO Fellow of the Australian & New Zealand Society of Criminology, and Honorary Fellow, Humanities & Social Sciences, Deakin University. Norden Directions provides professional consultancy services, media advice, representation and State and Federal Government liaison.