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Perth Town Hall and Supreme Court building, Perth, Western Australia, March 2018. Paul Mayall/picture-alliance/dpa/AP Images

(Perth) – The Western Australian (WA) government should permanently end the use of prolonged solitary confinement for prisoners, particularly those with disabilities, Human Rights Watch said today.

Under a Corrective Services Disruptive Prisoner Policy, some prisoners at the Casuarina Prison are spending more than 23 hours a day in solitary confinement with as little as 30 minutes of fresh air a day, according to court documents filed in the State Supreme Court on July 29, 2020. The documents were filed by the law firm Roe Legal, on behalf of three 26-year-old Aboriginal men, following concerns raised by family members to a Curtin University senior Indigenous research fellow, Dr. Hannah McGlade. The State Solicitor’s Office said on July 30 that the Department of Corrective Services would review the Disruptive Prisoner Policy and that no prisoners would be held under that policy until the review was completed.

“Prolonged solitary confinement is cruel, counterproductive, and should end,” said Sophie McNeill, Australia researcher at Human Rights Watch. “Western Australia’s prison management practices urgently need to be reviewed, particularly for the treatment of at-risk Aboriginal and Torres Strait Islander prisoners.”

Three Aboriginal men have died inside Western Australian prisons in the past three months, shining a spotlight on Corrective Services operations. Death in custody is an urgent issue in the state, and WA Premier Mark McGowan should ensure that the safety and wellbeing of at-risk prisoners is a priority for his government, Human Rights Watch said.

The affidavits of the three men filed in court state that some prisoners have spent nearly eight weeks in solitary confinement under the punitive Disruptive Prisoner Policy.

The WA Office of the Inspector of Custodial Services raised concerns over the legality of the policy after a 2019 inspection of Casuarina prison, saying that it created a “risk of prisoner mistreatment.” The inspector’s report stated: “It is not appropriate (and arguably not lawful) for the Department to create a regime equivalent to separate confinement that does not comply with the legislation. Ignoring legislative requirements creates a risk of prisoner mistreatment, and exposes the Department to a potential legal challenge.”

The three prisoners who lodged the Supreme Court challenge had initially been placed under the Disruptive Prisoner Policy in Hakea prison in June 2020. Later in the month, after allegedly being involved in an incident at Hakea, the three were transferred to Casuarina Prison, where the solitary confinement regime continued.

The court documents state that while held under the Disruptive Prisoner Policy regime at Casuarina prison, one of the men initially spent approximately four weeks in solitary confinement with only 30 or 45 minutes of fresh air a day on some days. After several weeks, an hour of exercise was reportedly permitted, but court documents state that two of the men spent at least 23 hours in solitary confinement for nearly two months.

Lawyers representing the three men say their clients have psychosocial – mental health – or physical disabilities.

Under the UN Standard Minimum Rules on the Treatment of Prisoners (the “Mandela Rules”), the “confinement of prisoners for 22 hours or more a day without meaningful human contact” amounts to solitary confinement. The UN special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment has said that the imposition of solitary confinement “on persons with mental disabilities is cruel, inhuman or degrading treatment.”

While Western Australia’s law allows for 23 hours of solitary confinement, under the WA Prisons Act 1981, that confinement should not exceed 30 days nor should it be used as a punishment. The department introduced the Disruptive Prisoner Policy in July 2019 to separate prisoners who are deemed to “negatively” influence other prisoners. It outlines distinct confinement levels of up to 60 days, which exceeds the department’s own 30-day limit under the Prisons Act.

In 2018, Human Rights Watch reported on the abuse and neglect of prisoners with disabilities in Australia, finding that they are at serious risk of sexual and physical violence, and are disproportionately held in solitary confinement for 22 hours or more a day. The research, which included visits to prisons across Western Australia, found that prisoners with psychosocial disabilities or cognitive disabilities in particular can spend days, weeks, or months locked up alone in detention or safety units.

“While solitary confinement can be psychologically damaging to any prisoner, its effects are devastating for people with psychosocial or cognitive disabilities,” McNeill said. “The WA government should urgently act to change the law to prohibit all forms of solitary confinement of people with disabilities.”

Isolation can cause anxiety, depression, anger, obsessive thoughts, paranoia, and psychosis. The stress of a closed and heavily monitored environment, absence of meaningful social contact, and lack of activity can exacerbate mental health conditions and have long-term adverse effects on the mental well-being of people with psychosocial or cognitive disabilities.

The Mandela Rules state that “Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority.” The UN special rapporteur on torture has said that indefinite and prolonged solitary confinement in excess of 15 days should also be subject to an absolute prohibition, citing scientific studies that have established that even a few days of social isolation cause irreparable harm, including lasting psychological damage.

Dr. McGlade, the Curtin University research fellow, told Human Rights Watch: “The recent court action evidences a lack of respect not just for the law, but also for the human rights of Aboriginal prisoners. We intend to take this treatment to the UN Human Rights Committee as it violates UN standards on the treatment of prisoners.”

The inspector’s report said that Casuarina has no Aboriginal healthcare workers and lacks culturally safe health care.

State and federal governments in Australia should end the use of solitary confinement for prisoners with disabilities, ensure that appropriate services are available to meet their needs, and more effectively screen prisoners for disabilities as they enter prison, Human Rights Watch said.

“The WA government was on notice that its solitary confinement policy was unlawful and allowed for the mistreatment of prisoners,” McNeill said. “It’s alarming that it required a State Supreme Court challenge for the WA government to respond to these issues. This is an opportunity for Corrective Services and the government to recognize the long-term harm of these policies and to ensure that such conditions are no longer acceptable in WA’s prisons.”

Quotes from the Affidavits

“I was meant to get one hour a day there, but I only got 45 minutes or sometimes 30 minutes…I don’t feel good,” said a 26-year-old man currently on remand in Casuarina Prison. “You go crazy with nothing to do.”

“I suffer from depression and take medication for that,” said a second 26-year-old man who said he had been in solitary confinement for 52 continuous days. “I have not had good thoughts in my head in solitary confinement.”

“I do not know if I can do another 28 days in solitary. … I asked the SO [senior officer] at Casuarina a number of times to see a mental health officer and they said ‘no,’” said a third 26-year-old man currently being held in Casuarina prison. 

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