The Western Australia Department of Justice could continue with a policy that allows it to isolate prisoners for 23 hours a day without the isolation constituting torture under international standards, due to terminology surrounding the definition of 'solitary confinement'.
Last month, lawyers for three Aboriginal prisoners with mental health or physical disabilities successfully lodged a supreme court challenge on the basis that the practice contravened the WA prisons Act, after family members expressed concerns for their well-being.
Two of the men had allegedly been held alone for 23 hours a day for almost two months, following a serious incident in June.
The state's own legislation (WA Prison Act) only allows confinement of up to 30 days consecutively, but under WA Corrective Service's 'disruptive prisoner' policy, inmates deemed to negatively influence other prisoners could be held in isolation for 23 hours a day, for up to two months.
Rule 44 of the UN standard minimum rule for the treatment of prisoners defines solitary confinement as: "... the confinement of prisoners for 22 hours or more a day without meaningful human contact.”
UN standards also classifies prolonged solitary confinement in excess of 15 consecutive days as ‘torture.’
The WA Department of Justice has maintained that it is in compliance with international standards, specifically regarding "meaningful human contact".
The department defines its treatment as "separate confinement", which allows for access to services such as medical attention or official visits, and prisoners can exercise in the time they are not in isolation.
Push to scrap the practice
While the Department has announced it will now review the policy and in line with those powers is no longer confining prisoners until the process is complete, the supreme court case has highlighted a systemic issue around mistreatment.
The disruptive prisoner policy was introduced mid-2019 and has since been subject to criticism by the state's independent watchdog, the WA Office of the Inspector of Custodial Services.
It warned in May this year that the policy could lead to legal action.
"Ignoring legislative requirements creates a risk of prisoner mistreatment, and exposes the Department of Corrective Services to a potential legal challenge," the report said.
Human rights representatives, including international body Human Rights Watch, have called for the WA government to scrap the use of solitary confinement inside prisons completely.
Noongar woman and lawyer, Dr Hannah McGlade, said a recent visit to the prisons revealed there are allegedly more people being affected than she first thought.
"One young man has been actually held in solitary isolation for seven months now," she said.
"He and the others, no doubt have suffered health implications or disorders potentially as a result of this inhumane, cruel treatment towards them,"
"We know that Aboriginal people in the criminal justice system experience racial profiling and racism racial discrimination at every stage, and I have no doubt that this practice is being used against Aboriginal prisoners in a harsh and unfair manner," Dr McGlade said.
The WA Department of Justice declined to comment on the proceedings and the on-going review when contacted by NITV News.
Treatment to be referred to UN
Dr McGlade has pledged to take the "cruel" and "inhumane" treatment to the UN human rights committee.
Western Australia has the highest imprisonment rate of Aboriginal people in Australia and in the past three months, three Aboriginal men have died in the states' prisons.
While the UN's Special Rapporteur on torture stated that a person should never be held more than 15 days in solitary confinement, it also states that a person with mental or physical disabilities should never be held in solitary confinement when their conditions would be exacerbated by such measures.
Dr McGlade said the WA government has failed in its duties.
"So, what they're doing here is clearly violating international human rights law standards on the treatment of prisoners and they are, I believe, creating further disability on the part already of three vulnerable young Aboriginal men," she said.
"We don't accept that you can abuse Aboriginal people in this way."
Mental health pleas
The Australian Insitute of Health and Welfare has linked social isolation with depression, emotional distress and pre-mature death.
Social isolation or exile has also been used as punishment in some traditional Aboriginal societies.
The court proceedings against the state included statements from three 26-year-old Aboriginal men, some detailing their struggles inside with poor mental health.
“I suffer from depression and take medication for that,” said a man who claimed to have been in solitary confinement for 52 continuous days.
“I have not had good thoughts in my head in solitary confinement.”
A second prisoner said he had sought help from staff at the Casuarina prison, a maximum security facility south of Perth.
“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,’” he said.