Recommendation 181

This recommendation is assigned to CSNSW.

Recommendation

That Corrective Services should recognise that it is undesirable in the highest degree that an Aboriginal prisoner should be placed in segregation or isolated detention. In any event, Corrective Services authorities should provide certain minimum standards for segregation including fresh air, lighting, daily exercise, adequate clothing and heating, adequate food, water and sanitation facilities and some access to visitors.

Context

The Royal Commission report specifically referred to the use of segregation in QLD and referred to a report from a Queensland Aboriginal Prisoner group which noted that whilst the use of segregation had declined following the passage of the new Corrective Services Act in QLD, abuses were still occurring. Recommendation 181 is directed at ensuring minimum standards are provided for inmates who are segregated whilst noting that segregation is undesirable in the highest degree.

Details of implementation

Under section 10 of the Crimes (Administration of Sentences) Act 1999 (CAS Act)  ‘Segregated custody direction of inmates’:

(1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that such segregation is necessary to secure

a) the personal safety of any other person, or

b) the security of a correctional centre, or

c) good order and discipline within a correctional centre.

(2) The governor of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.

(3) A segregated custody direction given by the governor of a correctional centre does not apply in relation to any other correctional centre.

Furthermore, rule 37 of the United Nations Standard Minimum Rules for the Treatment of Prisoners states that any form of involuntary separation from the general prison population, such as segregation directions, whether as a disciplinary sanction or for the maintenance of order and security, should be subject to authorisation by law or by the regulation of the competent administrative authority.

COPP section 3.4 Segregated custody direction at subsection 2.1 Policy states that ‘No inmate is to be deprived of any rights or privileges other than those imposes as a penalty for a correctional centre offence with which the inmate has been charged and a determination made. This includes the keeping of approved personal property e.g. goods purchased or under hire.’

Part 3 Placement of Aboriginal inmates into segregated custody states:

‘Segregated custody directions may cause greater distress for an Aboriginal inmate than for other inmates. When considering such placements recognition must be given to the unique social and cultural relationships that exist between Aboriginal people.'

'…Placing an Aboriginal inmate in segregated custody is undesirable in the highest degree. These procedures are in accordance with the recommendations of the Royal Commission into Aboriginal Deaths in Custody and must be followed.'

However, where a segregated custody direction is necessary, the Governor is to:

• ensure that the relevant Regional Aboriginal Programs Officer (RAPO) (who will provide support for the inmate) is informed.
• provide the segregated inmate with access to a member of the Aboriginal Inmate Committee or appropriate Aboriginal delegate. Such access may assist inmates who are experiencing problems that could lead to physical or mental harm.

The Governor or other authorised officer directing the segregated custody must ensure there is justification for the direction, and that detailed reports are provided to support the decision. The inmate must be informed of the specific reasons for their segregation.

Inmates are advised when placed under segregation that they are entitled to seek a review of their segregated custody direction. An inmate’s placement in segregated custody can be reviewed by the Serious Offenders Review Council (SORC) at any time after the first 14 days have elapsed, but the inmate must be informed of this when first placed under a direction by the Governor, and sign acknowledgement of this.

Segregated custody directions must never be used if there are other satisfactory ways of managing the identified risk(s), of the inmate. Governors (and delegates) should consider the use of Behavioural Management Plans (COPP 3.11) in defining and conveying behavioural expectations for inmates.

If an inmate is moved while on a segregation direction the 3 months does not restart. If the segregated custody direction is to be continued, the clock on the three months review requirement under s 16 of the CAS Act does not restart. The original direction continues.

Section 15 of the CAS Act confirms that a segregated custody direction applies:

• S 15(1)(a) in relation to the correctional centre to which the inmate is transferred
• S 15 (1)(b) in relation to the conveyance of the inmate to the receiving correctional centre, including custody of the inmate in any correctional centre in which the inmate is held during the course of being conveyed to the receiving correctional centre.

When an inmate is received at a correctional centre, the segregated custody order must be reviewed within 72 hours of arrival. The governor may revoke, confirm, or confirm with amended terms the segregated custody order. The effect of a confirmed segregated custody direction is to continue the order that the inmate arrived at the correctional centre with. The clock for review requirements by the Commissioner (or delegate) under section 16 (CAS Act) is not reset.

Difference between segregation custody directions and protective custody directions

The effect of seg and protection can be similar. An inmate will be held in such a way that they will not associate with other inmates (protection/seg) or may be held in limited associated with other like inmates, as determined by the Governor or delegate (seg only). Their placement in seg or protection will be reviewed by the Commissioner (or delegate) according to the requirements of section 16 of the Crimes (Administration of Sentences) Act 1999.

There are different levels of protective custody and only the highest-level Protection Non-Association (PRNA) has a similar effect as segregation. For example, reduced access to purposeful day activities including work, education and programs due to their status/identified risks.

Inmates that are in the category of Special Management Area Placement (SMAP) are afforded the same access to purposeful day activities as inmates in general/normal population. SMAP inmates are housed in groups with the ability to participate in work, programs and education. These are inmates with similar needs in relation to the vulnerability.

It is important to note that the criteria/purpose of seg and protection are different.

The criteria/purpose for segregated custody is s 10(1) CAS Act:

An inmate can only be placed on a segregated custody direction if in the opinion of the Governor (delegate) such segregation is necessary to secure:

• the personal safety of any other person
• the security of a correctional centre
• good order and discipline within a correctional centre.

The criteria/purpose of protective custody is s 11(1) of the CAS Act; the Governor must be of the opinion that the association of the inmate with other inmates constitutes, or is likely to constitute, a threat to the personal safety of the inmate.

The Regional Aboriginal Advisory unit is dedicated to providing specialised cultural expertise and support to Correctional Centre management and staff. Their focus is on reducing adult reoffending, ensuring the humane treatment of Aboriginal offenders, and enhancing staff cultural competency. Additionally, they offer culturally sensitive crisis support to create a supportive environment.

In the role and responsibility of the unit:

• Cultural Guidance for offender Well-Being: providing culturally specific expert advice and support to Correctional Centre management and staff on strategies to reduce adult reoffending and ensure the safe and humane treatment of Aboriginal offenders while in custody.
• Enhancing Cultural Capability: partner with Corrective Services NSW (CSNSW) management to improve the level of cultural capability for staff members working within the correctional centre.
• Cultural Crisis Support: deliver professional and culturally sound crisis support to correctional centre staff, management, and Aboriginal offenders who are at risk or on segregation. Their goal is to assist these offenders with pathways back into the main population.

Currently, there is a complement of 6 RAPOs covering the following areas:

1. Metro East
2. Metro West
3. Southern
4. Western
5. Northern
6. Hunter

Evidence

• Crimes (Administration of Sentences) Act 1999 Section 10 ‘Segregated custody direction of inmates’
• rule 37 of the United Nations Standard Minimum Rules for the Treatment of Prisoners
• COPP section 3.4 Segregated custody direction (PDF, 9.9 MB)
• COPP 3.11 (PDF, 823.4 KB) Behaviour Management
• Section 15 of the Crimes (Administration of Sentences) Act 1999
• Section 16 of the Crimes (Administration of Sentences) Act 1999
• Section 11(1) of the t Crimes (Administration of Sentences) Act 1999