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December 20, 2013

SOLITARY CONFINEMENT BREACHES ARTICLE 7 OF ICCPR

by dankrogers

solitary-confinement
Under the Queensland Government’s anti-bikie laws, the Department of Corrective Services are directed to imprison members or associates of bike groups in particularly harsh and unprecedented ways. Some have described the conditions as being similar to Guantanamo Bay.

Any person sentenced to a term of imprisonment found to be identified participants in a criminal organisation are to be imprisoned at Woodford Correctional Centre in the “restricted management unit”, unless there are compelling reasons otherwise. All such persons are subject to a very strict management regime including:

1. Out of cell time restricted to at least 2 daylight hours a day;
2. No visits from other CMG members or affiliates which includes family members;
3. Only 1 hour of non-contact personal visit with family members per week;
4. The wearing of the CMG prisoner uniform (pink wonesies);
5. No TV’s in cells;
6. No access to gym or the oval;
7. Restricted minimum prisoner property;
8. Restricted phone calls;
9. Heavy restriction of phone calls and any letters.

Solitary confinement is the most disturbing of the conditions. The significant mental health harm arising from solitary confinement has been well documented over many years.

Last week, The Honourable Justice Peter Applegarth delivered a series of three decisions involving sentence proceedings for contempt of the Crime and Misconduct Commission. See this link for the Judgments. In each case, a member or an associate of an outlaw motorcycle group refused to answer questions under compulsion at the Crime and Misconduct Commission. The reasons for the refusal were unclear but it was accepted by His Honour that fear of retribution was probably a significant factor in the decision not to give evidence.

In sentencing the three persons, His Honour carefully considered the harsh effects of solitary confinement during the person’s period of imprisonment. In recognising that the period of actual custody would be significantly worse for an identified participant, His Honour reduced the sentence significantly to recognise the adverse health effects of solitary confinement. The United Nations have in fact described solitary confinement as “an extreme prison practice which should only be used as a last resort and then only for a short period of time”. Because of the extent of psychological and physiological damage caused by solitary confinement, it was proper for the period of imprisonment to be reduced in these cases.

This case and the decision of His Honour highlights the very poor way in which the Queensland Government has introduced anti-bikie legislative reforms. Such reforms have been without evidence based research to establish that the reforms will actually make a difference. If the goal of the Newman government is to reduce crime then surely it would be obvious that placing persons in solitary confinement will do nothing to rehabilitate them and will only worsen their mental health which is often a direct contributing factor to a person engaging in criminal activity. In fact, His Honour recognised that any substantial period of solitary confinement carries a high risk of causing serious psychological damage to the prisoner which will endure after release and further that such injuring consequences carry dangers for members of the community.

The practice of solitary confinement of any prisoner in Queensland should be immediately abolished. It constitutes a breach of Article 7 of the International Covenant for Civil and Political Rights of which Australia is a party. Article 7 serves to protect both the dignity and the physical and mental integrity of an individual. This has been recognised by the office of the High Commissioner for Human Rights in its general comments on Article 7 of the International Covenant for Civil and Political Rights. The protection exists against persons acting in an official capacity.

Solitary confinement is inhumane, degrading and absolutely cruel. As a practising criminal lawyer I have seen first-hand the deterioration in mental health of persons exposed to this treatment. It is appalling and it is so disappointing to see this occurring in a country that prides itself on democratic values and the protection of fundamental rights.

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