WARNING: The following discusses themes of suicide and self-harm. Please take care while reading.
Solitary confinement under the guise of “lockdowns” has become increasingly normalised in prisons across the country since the peak of Covid-19 pandemic in 2020. While prisons have always been brutal and barbaric places where human rights abuses thrive in the darkness behind locked doors, the Victorian Government’s response to the pandemic in prisons demonstrated a particularly callous disregard for the lives of people behind bars.
During the peak of the pandemic, we were all told by governments and health experts to “social distance” in order to slow the spread of Covid-19. This was impossible in prisons. The very nature of prisons means that people are in close proximity to others at all times, so separating sick people from well people to prevent the spread was totally unworkable.
Rather than reducing the number of people in prisons during the peak of the pandemic, Australian governments generally responded to the risk of Covid-19 by imposing harsh “protective quarantine” regimes. In Victoria, this resulted in people being detained in isolation for 14 days in conditions that often amounted to solitary confinement. Alongside this, in-person visits with family were stopped, programs were suspended and court hearings were postponed.
The already unforgiving prison environment was exacerbated. The horrific harms of solitary confinement are well documented, with the cruel and degrading practice having a particularly detrimental impact on First Nations people as documented by the Royal Commission into Aboriginal Deaths in Custody: it is “undesirable in the highest degree” that Aboriginal and Torres Strait Islander people in prison be subjected to “segregation or isolated detention.”
People behind bars and their families called for governments across Australia to reduce the number of people being pipelined into prisons and put at risk of contracting Covid-19 during the pandemic and beyond. Experiences in other countries showed that, should there be a Covid-19 outbreak in prison, it would spread like wildfire. Advocacy across so-called Australia took many forms: many open letters were published, many media releases were sent, many policy statements were prepared and many submissions were made.
When the calls for the Victorian government to reduce the number of people in prisons did not result in action, strategic legal action was taken. A case was brought in the Supreme Court of Victoria seeking orders to temporarily release a 52-year-old man from Port Phillip Prison in light of the serious risk of harm or death that Covid-19 would pose to him. At an interlocutory hearing in the case of Rowson v Department of Justice, Corrections Victoria and the State of Victoria, while not making any findings of fact, a Judge found that there was a prima facie case that prison authorities had breached their duty to take reasonable care for the man – Mr Rowson’s – health. Detained in a single cell around 2,600mm x 3,000mm in size, Mr Rowson described in affidavit evidence that:
- people in prison had not received any information about Covid-19 prevention and management measures in prison, nor any advice about social distancing;
- social distancing was not possible to observe in prison in any event;
- people in prison did not have access to hand sanitiser;
- people in prison were limited to one bar of soap a week; and
- the temperature of the water supply in prison cells was lukewarm, so people did not have access to hot water to wash their hands, or clean their cell.
The Supreme Court of Victoria also heard that prisons provided “an optimal setting for an outbreak and the prison population may be naive to the seriousness of COVID-19.” The risk increases as the number of people passing through the prison increases, with other risk factors including overcrowding, unsanitary conditions, poor ventilation and poor health care. No risk assessment had been completed at Port Phillip Prison where the man was detained, despite it being recommended by national guidelines. The Supreme Court of Victoria ordered a risk assessment take place, and that any recommendations be implemented.
The criminal legal system also responded by recognising that “the situation [was] causing additional stress and concern for prisoners and their families, as it [was] for every member of the community” (Brown (aka Davis) v The Queen [2020] VSCA 60). Although dependent on the facts of each case, the conditions and risks created by the Covid-19 pandemic in prisons became a potentially relevant factor in applications for bail and in sentencing decisions.
The use of draconian 14 day “protective quarantine” in Victorian prisons was particularly problematic and also ineffective because it did not address the daily churn of people being funnelled through the criminal legal system, nor the daily influx of staff going into prisons.
The adoption of this approach was especially harsh and harmful during times when there was no transmission of Covid-19 in the community. It was arbitrary and inappropriate for every person entering prison to be subject to 14 days in “quarantine” regardless of risk. There were reports of men only having 15 minutes out of their cell a day, and women only having 40 minutes. While the Victorian government claimed that their policy was “following the advice of health experts”, Freedom of Information requests at the time revealed an alarming absence of robust, concrete health advice and minimal consideration of the mental health impacts of isolation. Rather, documents showed a handful of emails that considered whether the 14 day “protective quarantine” period for people in prison could be reduced.
The harshness of the conditions that people were being subjected to in Victorian prisons was recognised to some extent by sentence remissions, in the form of “Emergency Management Days”. An existing legal mechanism, Victorian laws allow for such days to reduce the length of a sentence being served by a person if they suffered disruption or deprivation during an emergency or in other circumstances of an unforeseen and special nature.
An anomaly was identified by lawyers where people in prison serving federal sentences were not being granted such sentence remissions, in contravention of clear legal provisions which stipulated that state and federal sentences should be treated in the same way. Advocacy by lawyers to the government helped remedy this issue, only for the federal Morrison government to confirm their indifference for the lives of people in prisons by passing unfair laws abolishing such legal protections for people serving federal sentences.
A responsible government would have taken urgent steps to reduce the number of people in the prisons and stem the tide of those getting caught in the net of the criminal legal system as part of their response to the unprecedented public health emergency that was the pandemic. While a mass casualty event due to Covid-19 was avoided in Australian prisons, a pernicious consequence has been the normalisation of isolation as a prison practice.
During the peak of the pandemic, Aboriginal and Torres Strait Islander, legal and human rights organisations were concerned about this and the erosion of people’s human rights. Cruel and degrading prison practices should never have formed part of the response to the pandemic, and we are now witnessing the use of isolation become increasingly normalised as a tool to control people in prison and as a compounding form of punishment. It is contributing to prisons serving as death traps for the people detained in them, with escalating deaths in custody and increased rates of people suiciding and self-harming.
This has been confirmed by formerly incarcerated people who have spoken out about how rife lockdowns are, and how harmful they are. This includes Kelly Flanagan, a staunch formerly incarcerated Wiradjuri woman, who documented the lockdowns she was subjected to during her time detained at the Dame Phyllis Frost women’s prison. Kelly and other women were locked away with no interaction or support for days and nights on end. Her diary documented suicide attempts by fellow women, and her own attempt at self-harm. Kelly described her response to ongoing lockdowns as follows: “These are mothers and daughters, sisters and aunties, and I feel like they’re being treated like human garbage.”
Lockdowns are continuing to occur and are continuing to result in calls and visits – including legal and medical appointments – being disrupted. This is only set to get worse, with Victoria facing a government-manufactured mass imprisonment crisis with dangerous and discriminatory bail and sentencing laws pipelining more people in prisons that the government allegedly cannot even staff. The evidence is crystal clear that more people in prison not only undermines community safety, but also increases the risk of people being subjected to human rights abuses behind bars, including solitary confinement.
The answer has never been to build more prisons, but to work towards a future without them. In the interim, the Victorian Government – and governments across the country – should be enacting robust legal safeguards to protect against the further normalisation of lockdowns and isolation practices by banning the use of solitary confinement in law.
