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"Torture": Calls for Victoria to end effective solitary confinement of youth inmates

Dechlan Brennan -

"I feel worn out, I don't feel like making any changes . . . You can only stare at the four corners (of your cell) for so long. You don't even get any sun."

These are the sentiments of a youth detainee experiencing isolation in Port Phillip prison, as reported in a new article in the Law Institute Journal (LIJ).

It has renewed calls for the practice to be abolished in Victoria, with Human Rights lawyers noting it's continual use raises questions around compliance with Human Rights laws and standards.

The article in LIJ, written by Monique Hurley from the Human Rights Law Centre (HRLC), and Sarah Schwartz, Principal Lawyer (Wirraway Police and Prison Accountability) at the Victorian Aboriginal Legal Service (VALS) says no one should be subject to human rights abuses whilst they are incarcerated, including being subject to solitary confinement.

"(A)cross Australia the solitary confinement of people in prisons, and rising rates of children subjected to isolation, are becoming increasingly normalised," they said.

A Victorian Government spokesperson told National Indigenous Times solitary confinement is "strictly prohibited in Victoria's Youth Justice system".

"The safety and security of young people and staff in youth justice remains our highest priority," they said.

The two authors noted in their article that "while the words 'solitary confinement' are not used in Victorian legislation, overly broad laws permit a number of practices that have the potential to amount to solitary confinement."

The Yoorrook Justice Commission report also argued a "range of protections in legislation" to limit the use of isolation on youth prisoners existed, but none expressly banned the practice.

The Children, Youth and Families Act 2005 (CYFA) doesn't mention solitary confinement, choosing instead to use the term 'isolation'.

It states the act must not be used as a punishment for a "person detained in a remand centre, youth residential centre or youth justice centre or a child detained in a police gaol".

However, isolation is allowed if all other "reasonable steps" have been taken to prevent a person from harming themselves, others or property or if that person's behaviour presents a danger to others or themselves.

High-Profile Incidents

The article in LIJ comes in the wake of several high-profile stories throughout the country which has highlighted the use of the practice on children and led to repeated calls for it to be legislatively banned.

In a report tabled last week by Victoria's Commission for Children and Young People, it was found a 17-year-old Indigenous prisoner was subjected to a spit hood after being kept in "effective isolation" for 24 weeks out eight months.

In Queensland, Guardian Australia revealed the extensive use of solitary confinement on children, including an Indigenous teenager with an intellectual disability who had been kept isolated in solitary for more than 500 days.

And in Western Australia, the Labor government is subject to a class action in relation to conditions in Banksia Hill Prison, and the state's Supreme Court ruling the solitary confinement of a 14-year-old boy "unlawful".

The authors noted the particularly egregious impact on First Nations people the practice of solitary confinement has, arguing due to a "toxic mix of discriminatory policing and systemic racism," Indigenous people are grossly overrepresented in prisons and remand centres.

Furthermore, Aboriginal people are "disproportionately harmed by cruel practices including solitary confinement".

Speaking to National Indigenous Times, the two authors argued the use of solitary confinement amounted to torture and needs to be abolished.

"The State of Victoria uses solitary confinement as a default tool for managing staffing issues in prisons, for managing people with disability, and for managing people who present with trauma and complex needs," Ms Schwartz said.

"In the last few years, we have seen an increase in the use of solitary confinement in children's prisons to deal with staffing shortages. While Youth Justice has millions of dollars to spend on youth prisons which sit virtually empty, it can't even run a prison where children are able to access regular education, recreation, and rehabilitation programs."

The Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules, says solitary confinement is the confinement of people in prison for 22 hours or more a day without meaningful human contact.

It also notes solitary confinement should only be used in "exceptional cases" and as a last resort for as short a time as possible.

Ms Hurley says the practice of isolation has horrific impacts on inmates when they are detained, as well as when they are released.

"Solitary confinement is a cruel and barbaric practice that causes irreparable harm to the people who are subjected to it," she told National Indigenous Times.

"The physical and psychological consequences of solitary confinement can be devastating. It has long-term, irreversible impacts on people's health and wellbeing.

"It also puts people at risk of losing their grasp on who they are and of how, and whether, they are connected to a larger world."

Writing in LIJ, the authors said the "misuse of solitary confinement and isolation practices" had been the focus of multiple Royal Commissions and inquiries across the country, with serious concerns recently being raised by the United Nations anti-torture watchdog.

The Yoorrook interim report argued the state "need(ed) to stop harmful conditions in youth prisons including the use of solitary confinement".

The Same Four Walls inquiry into uses of solitary confinement in the Victorian justice system, published by the Commissioner for Children and Young People in 2017, made 20 recommendations, 16 of which have been enacted on.

Yoorrook said one of the four outstanding recommendations was the CYFA being amended to allow young people in youth justice at least one hour of fresh air a day - an amendment that would still facilitate isolation.

The report did note the government was considering this and other amendments in a new Youth Justice Act, now likely to come in the new year.

The Same Four Walls report also stated that whilst there were a variety of 'reasons' behind the isolations, and children presented unique issues in custody not always seen by adults, the reasons behind the practice were largely irrelevant when the end result remained the same.

"(T)he result was usually the same: children and young people enclosed alone between four walls with limited access to fresh air, human interaction, stimulation, psychological support and, in some circumstances, basic sanitation".

In 2019, Victorian Ombudsman Deborah Glass found that children were being "damaged rather than rehabilitated" through the "excessive" use of isolation and separation in her report on prisons in the state.

"Legislation and official procedures acknowledge that children and young people should be isolated only as a last resort and for the minimum time necessary," she said at the time.

"But we found the procedures do not translate into practice.

"The direct impact is that many of the practices in both our youth justice and prison systems are likely to be contrary to law, incompatible with Victoria's human rights legislation, oppressive, discriminatory or simply, wrong."

She argued in many cases, the justification for isolation was punitive and questionable. Furthermore, she said it was disturbing to see "the disproportionate use of isolation on Aboriginal young people, given it had been known for decades that Aboriginal prisoners subjected to solitary confinement suffer 'extreme anxiety'".

Ms Glass recommended "a legislative prohibition on 'solitary confinement.'"

In 2017, a Victorian Ombudsman inspection found that women held in management (separation) units, were sometimes kept in their cells for 22 to 23 hours a day, having "little meaningful human contact".

Earlier this year, The Age revealed whistleblowers from the Youth Justice Centre in Parkville has complained about the rampant use of isolation, including on Indigenous teens and youth on remand - who had not been found guilty of any crime.

"During my time at Parkville, there were multiple suicide attempts and self-harm incidents. Most of these took place while boys were forced to isolate in their rooms," one of the whistleblowers - a teacher - said.

Youth Justice Minister Enver Erdogan said at the time that the government's top priority was ensuring the safety and wellbeing of staff and young people at youth justice centres

"Isolation is always a last resort and never used as a form of punishment," he said.

"In the rare cases it is authorised, young people's health and developmental needs are prioritised, and all instances of isolation are recorded and reported to the Commissioner for Children and Young People."

The government has also highlighted the difference between isolation and solitary confinement, arguing that the former allows trained staff to provide regular wellbeing, along with phone calls, fresh air, proactive support for health, mental health and cultural support to isolated persons, something someone in solitary confinement may not receive.

Nevertheless, the impact on people who experience isolation, or solitary confinement, is stark and both Ms Schwartz and Ms Hurley argue these effects are well documented.

"Solitary confinement is 'strikingly toxic to mental functioning', 'psychologically painful' and causes long-term, irreversible harm," they said.

"Common psychological and physiological effects of isolation include anxiety, depression, cognitive disturbances, confusion and disorientation, paranoia and psychosis, insomnia, deterioration of eyesight, self-harm and suicide."

The 1991 Royal Commission into Aboriginal Deaths in Custody found that solitary confinement was "undesirable in the highest degree" for Indigenous people.

The Victorian government has enacted some progressive reforms concerning Aboriginal and Torres Strait Islander incarceration. The Yoorrook hearings were Indigenous-led and allowed First Nations people to directly question and query government representatives. The government has largely committed to implementing many of the reforms - even if the details are yet to be finalised.

However, whilst public drunkenness and bail reforms have been largely welcomed, the use of isolation - even if discouraged and prohibited by the government - continues to cause consternation and concern for many.

Ms Schwartz told National Indigenous Times Indigenous people in prison are "disproportionately subjected to solitary confinement."

"For First Nations people, solitary confinement, and being locked in a concrete cell for extended periods of time, further dislocates people from country, community, and culture," she said.

In Victoria, the rate of youth detention for Indigenous young people in 2021-22 was the second lowest in the country, increasing from 47.5 per 10,000 young people in 2020-21 to 56.6. Western Australia leads the nation with 278.1 per 10,000 young people.

Data from 2021–22, in which 75 Indigenous children and young people were housed under youth justice custodial supervision, showed 3187 instances where Aboriginal detainees were isolated in the 'interest' of the security of the facility they were housed in.

Some of these 'interests' included staff shortage; representatives from the Victorian government "accepted" that these shortages were not a justification for "human rights violations".

There are improvement, with isolations decreasing in the latest data. In 2022–23, the number of 'behavioural' isolations decreased, from 1,486 episodes in 2021–22 to 663. The isolation episodes per individual child or young person isolated also decreased from seven to four - all of which were commended by the Child Commissioner.

However, Ms Schwartz says many of the clients who VALS have represented have been "subjected to prolonged periods of incarceration".

These include children, people with disabilities, and transgender women.

"Instead, our clients sit for periods of up to 23 hours in their cells, staring at the walls, without access to fresh air, recreation, or school," she said.

"Even short periods in solitary confinement can have a profound impact on people's physical and mental health and can lead to illness and premature death."

The authors say legislative abolishment of the practice is a must, and a "Victorian government which is committed to community safety would end the damaging practice of confining people to a small cell for days or weeks on end".

"Solitary confinement is a form of torture and should be abolished in all its forms," Ms Schwartz said.

*The article was amended on 16 November to note Victoria has the second lowest rate in the country for youth detention. The original article incorrectly stated that it has the highest.

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