Towards human rights compliance in Australian prisons

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Notes

1 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 18 December 2002 A/RES/57/199 entered into force 22 June 2006.

2 For the most recent statistics, see Productivity Commission, Australia’s Prison Dilemma – Research Paper (2021) 33.

3 Lorana Bartels, ‘Curing our Addiction to Prison’ Sydney Morning Herald (24 April 2016) www.smh.com.au/opinion/curing-our-addiction-to-prison-20160421-gobl0h.html.

4 Andrew Leigh, ‘The Second Convict Age: Explaining the Return of Mass Imprisonment in Australia’ (2020) CESifo Working Paper No 8163.

5 United Nations General Assembly Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules) 17 December 2015 A/RES/70/175.

6 In Canada, see Francis v Ontario [2021] ONCA 197 where the Ontario Court of Appeal found that the practice of solitary confinement breached s 12 of the Canadian Charter of Rights and Freedoms (which provides that ‘[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment’) where the confinement was prolonged or of seriously mentally ill inmates. Ontario was found liable for $30M in damages. In New Zealand, see Taunoa v Attorney-General [2008] 1 NZLR 429. In 2013 the UN General Assembly noted that solitary confinement may amount to torture: UN General Assembly, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment GA Res 68/156 adopted on 18 December 2013 [28].

7 Other terms used across Australian jurisdictions are segregation, separate confinement, separation, seclusion, lockdown, isolation and non-association.

8 See for example the case of Owen-D’Arcy v Chief Executive of QCS [2021] QSC 273.

9 Corrective Services Administrators’ Conference (Cth) Guiding Principles for Corrections in Australia (2018).

10 For more detail, see Laura Grenfell and Steven Caruana ‘OPCAT: Are We Ready? So Far, (2022) 47/1 Alternative Law Journal 54–59.

11 Cunneen, Chris and others, Penal Culture and Hyperincarceration. The Revival of the Prison (Ashgate 2013).