Since 2017 there have been almost 300 inquest findings delivered by the Western Australian State Coroner. Forty-four of these relate to people held in the custody of the Department of Justice. Within the findings, a Coroner can make recommendations which are centred on the administration of justice aimed at preventing similar deaths happening in the future. Thirty-five recommendations have been made to the Department regarding deaths in custody, of which it has supported 31.
The Department tracks its response to coronial recommendations and ensures that there is enough and defensible evidence to endorse their completion and/or closure. Further governance mechanisms include reporting recommendation tracking and closures through internal risk management and audit processes.
On 11 November 2021, the Minster for Corrective Services endorsed the following Terms of Reference directing the Inspector of Custodial Services to undertake a review into the Department’s performance in responding to coronial recommendations arising from inquiries into deaths in custody. The was in accordance with Section 17(2)(b) of the Inspector of Custodial Services Act 2003.
Review terms of reference:
- Does the Department of Justice implement recommendations made by the Western Australian Coroner appropriately?
- How effectively does the Department of Justice monitor its continued compliance with the recommendations?
A timeline for this Directed Review is in development.
Confinement, separation or segregation of prisoners is commonly used as a tool to manage and safeguard the good order and security of a prison. These terms are often used interchangeably and at times without clear definition. In Western Australia, the Prisons Act 1981 (the Act) specifically allows for confinement or separate confinement under three circumstances, including:
- s 36(3) – the Superintendent may issue orders necessary for the good government, good order, and security of the prison
- s 43 – separate confinement for the purposes of maintaining good government, good order, and security of the prison
- s 82 – separate confinement as a penalty imposed following a disciplinary hearing or conviction
While the Act does not explicitly define separate confinement, both s 43 and s 82 provide the parameters for such confinement, including a minimum of one hour each day for the taking of air and exercise, and for other activities as directed by the chief executive officer. Other activities typically include time out of cell for showering, cleaning the cell, making phone calls and taking other entitlements.
The length of confinement can vary depending on the circumstances and the legislative authority under which a prisoner is confined. Separate confinement under s 43 cannot exceed 30 days. Punishment by confinement can occur for up to 28 days, with 48-hour periods of non-separation required after every seven days of confinement. The Department of Justice’s policy states confinement under s 36(3) ‘must end as soon as possible and should not, unless necessity or emergency require, continue for more than is necessary’. The policy suggests between 48 and 72 hours.
There are also a range of policy-based confinement options for prison management to consider. For instance, prisoners displaying poor behaviour may be regressed to ‘close supervision’, which may include up to 14 days of confinement to ensure the good order and security of a prison.
The ‘Nelson Mandela Rules’ define solitary confinement as confinement of prisoners for 22 hours or more a day without meaningful human contact. It defines prolonged solitary confinement as solitary confinement that exceeds 15 days. The Guiding Principles for Corrections in Australia does not specifically prohibit prolonged solitary confinement but requires prisoners to be managed under the least restrictive conditions, and for a person’s mental health to be recognised and considered where confinement is continued.
This review will examine the use of confinement and management regimes within Western Australia since January 2017.
Review Terms of Reference:
- Is the use of confinement and management regimes transparent and accountable?
- Are policies and practices on the use of confinement and management regimes consistent with legislation?
- Is the Department effectively managing prisoners placed into confinement or on a management regime?
- Are staff resources and training adequate to effectively manage the needs of prisoners placed in confinement or on a management regime?
The report is expected to be available to the public in September 2022.
Transporting people in custody is a standard, regular function in Western Australia. During their time in custody, prisoners may need to be safely and securely transferred between facilities, to external appointments, for compassionate reasons, and to attend court. Between 2018 and 2021, there were more than 305,000 external movements within the adult custodial estate. This equates to roughly 209 adult movements per day across the state.
Just over 120,000 of these external movements had a destination or origin at a regional or remote prison. Many of these movements are for short trips to facilitate court appearances, health appointments or external work activities. However, long-haul journeys to transfer prisoners between facilities are also undertaken. Many of these include lengthy road journeys across remote parts of Western Australia. The Department seeks to complete these journeys in a safe, humane and efficient manner, which assures the self-respect and privacy of the prisoner, and the safety of the community (DOJ, 2021).
Depending on where the transport originates, and the reason for the trip, adult prisoner transports can be conducted by various escorting agents. This includes the Department of Justice; Serco Acacia Prison; and the private transport provider, Ventia, under the contractual requirements of the Court Security and Custodial Services (CSCS) contract. Ventia is also required, contractually, to complete all transports in a safe, humane and secure manner.
We have recently been made aware of a few incidents that have occurred during the transportation of prisoners in regional areas. This includes a vehicle break-down between Derby and Broome and anecdotal evidence that prisoners travelling from Greenough Regional Prison to Perth were not provided with adequate opportunities to stop for ablutions. These incidents, and any others we become aware of, will be examined during this review.
This review will examine the transportation of prisoners in regional and remote Western Australia and whether these transports are conducted in a safe, secure and humane manner. It will not specifically address the transport of young people across regional and remote Western Australia. Nor will it examine in detail transport of prisoners within the Perth metropolitan area.
The Terms of Reference for the review are:
- Are regional and remote transports of prisoners performed in a safe, secure and humane manner?
- Do regional and remote transport practices align with policies and contract arrangements?
The report is expected to be available to the public in February 2023.
The Special Handling Unit (SHU) is a unit at Casuarina Prison for prisoners from across the custodial estate who are assessed as posing a major threat to the prison system. Prisoners placed in the SHU are not in separate confinement or being punished. Rather, the SHU is intended to act as a prison within a prison to separate high-risk prisoners from the mainstream population, in accordance with r.54C of the Prison Regulations 1982. Separating prisoners in this way assists the Department of Justice to reduce the risk of major threats posed by such prisoners if they were to be held in the mainstream population.
Historically there has been some confusion with the SHU’s role. A departmental review reiterated that the SHU should not be used as a punishment unit or be used as a ‘last resort’ option for difficult prisoners, resulting in lengthy stays with no pathway back to mainstream. It stressed that the intention of the SHU should be to reduce risk through intervention and develop management strategies to enable prisoners to transfer back into the mainstream population. Despite this, over the years there have been several prisoners who have been held in the SHU for long periods. Between 2018 and 2021 there have been 14 prisoners who have resided in the SHU for greater than one year. This includes one prisoner who has been held in the SHU since 2005. The Department’s current policy states prisoners will remain in the SHU for as long as they are considered to be a major threat.
Many of the prisoners placed in the SHU are also acutely unwell with mental health conditions. With a lack of bed space in the state’s secure mental health facility, the Frankland Centre, the SHU is often assessed as the safest place for high-risk unwell prisoners.
Further, the west wing of the SHU may also be utilised for prisoners subject to a s.43 separate confinement order or those subject to punishment by confinement. There are also provisions to allow the WA Police Force or the Australian Federal Police to hold certain persons in the SHU under specific Commonwealth legislation.
This review will examine the role of the SHU as a specialist unit for high-risk prisoners and the management of prisoners placed there, guided by the following terms of reference:
- Are prisoners placed in the SHU in accordance with relevant legislation and departmental policies?
- Is the SHU’s purpose clear with appropriate operating policies and procedures?
- Is the Department effectively managing prisoners placed in the SHU, including developing arrangements to transition them back into the mainstream population?
- Are staffing arrangements, resources and training adequate to effectively manage the needs of prisoners placed in the SHU?
Page last updated: 06 Sep 2022