Denial of open air and exercise a failure to treat people in prison with humanity and dignity
Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83
Facts
In 2018, Mr Nathan Davidson was sentenced for six years and nine months, with a non-parole period of three years and eight months, for offences relating to theft, drug trafficking and possession of ammunition.[1] Mr Davidson was detained at the Alexander Maconochie Centre (AMC) in the Australian Capital Territory (ACT).
Mr Davidson was held in solitary confinement on the ‘hard side’ of the Management Unit for a total of 63 days. Solitary confinement refers to confinement of a person for 22 hours or more a day without meaningful human contact.[2] The AMC utilise the Management Unit to detain people in segregation or solitary confinement for disciplinary purposes – it is compromised of 14 cells, each of which has a small area adjoined by an internal door, referred to as the ‘rear courtyard’. During the 63 days of solitary confinement, Mr Davidson was denied access to the general exercise yard located on either side of the Management Unit.
Mr Davidson challenged the lawfulness of the rear courtyard under the Human Rights Act 2004 (ACT) (Human Rights Act) in the ACT Supreme Court. Mr Davidson sought declaratory relief that the rear courtyard does not comply with obligations to provide access to the open air for at least 1 hour each day and to exercise for at least 1 hour per day.[3]
Mr Davidson provided evidence that:
The AMC were aware of his longstanding bipolar disorder and that his general coping technique for this condition is regular, strenuous exercise.
Being held in the rear courtyard made him feel like he was still in his cell because there was no air circulation or breeze, no direct sunlight and inadequate space to exercise.
To seek access to the rear courtyard, people in prison had to use an intercom to buzz the correctional officers station, who would then remotely open the door. Mr Davidson observed that he ‘pretty much [had to] beg for [AMC staff] to open the back door’.
There were occasions when Mr Davidson was not granted access to the rear courtyard for 24 hours per day. Mr Davidson stated that when he requested access and was denied, he generally would not ask again because he was ‘too ashamed’ and did not want to ‘beg’.
While in the Management Unit, he felt he was at the lowest point of his entire life and attempted suicide.
On an occasion where Mr Davidson spent 28 days in the Management Unit, he felt he was ‘never getting out and that he was going to be in the cell forever’.[4]
Prior to the hearing, Mr Davidson’s solicitors successfully sought for Justice Loukas-Karlsson, her associates, the parties and legal representatives to inspect the inside of a cell and rear courtyard in the Management Unit, as well as the two general exercise yards located near the Management Unit. Justice Loukas-Karlsson’s observations during this inspection, particularly those relating to the conditions in the rear courtyard, were relied upon and formed part of the evidence in the hearing.[5]
Relevant Legislation
Section 45 of the Corrections Management Act 2007 (ACT) requires that the Director-General must ensure, as far as practicable, that people have access to the open air for at least 1 hour each day and can exercise for exercise for at least one hour each day.
Section 14 of the Corrections Management (Separate Confinement) Operating Procedure 2019 enables the Director-General to enact corrections policies to facilitate the efficient management of the AMC. Clause 4.3 of the 2019 Operating Procedure stated that ‘the open rear cell door will count as the minimum one hour of fresh air and exercise’.
Section 40C of the Human Rights Act 2004 (ACT) establishes standing for Mr Davidson and jurisdiction for the Supreme Court to hear legal proceedings where a person claims that a public authority has contravened their obligations under section 40B.
Section 40B of the Human Rights Act 2004 (ACT) requires public authorities, including the Director-General in this case, to act consistently with human rights when making a decision. Specifically, this provision makes it unlawful for public authorities to act in a way that is incompatible with a human right or fail to giver proper consideration to a relevant human right when making a decision.
Section 19(1) of the Human Rights Act 2004 (ACT) provides that anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.[6]
Key issues in the case
Justice Loukas-Karlsson determined that the proper construction of section 45 with reference to various authorities, including the Human Rights Act 2004 (ACT), the International Covenant on Civil and Political Rights and UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules). Her Honour referred an extract discussing exercise and open air entitlements in the Mandela Rules, which stated:
The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard…. [A]ll prisoners without exception (including those undergoing cellular confinement as a punishment) should be offered the possibility to take outdoor exercise daily.[7]
Her Honour stated that the phrase ‘can exercise’ should be interpreted as ‘suitable to exercise in’ and agreed with evidence the rear courtyard is not suitable for exercise. Further, Her Honour stated that the phrase ‘as far as practicable’ involves it being ‘capable of being put into practice or feasible’. Accordingly, it was possible to increase staffing levels to provide basic entitlements, such as access to the general exercise yard, while maintaining prison security and to install a door with a hatch. Her Honour emphasised the well documented view that when people are detained in solitary confinement, the requirement of an exercise period should be strictly adhered to and an inadequate space to exercise risks physical and mental health.[8]
Justice Loukas-Karlsson determined that whether access to the open rear cell door fulfils the obligations in section 45 is a question of fact, and agreed that the evidence establishes that the rear courtyard is not ‘in the open air’. Her Honour observed that the mesh ceiling undeniably obstructs a clear view of the sky, impedes natural sunlight and crossflow of air. Justice Loukas-Karlsson agreed that the rear courtyard is ‘in reality, another small enclosed room’ by virtue of the dimensions of the cell, being compromised of four solid block concrete walls and the metal mesh roof ceiling.
Accordingly, Justice Loukas-Karlsson considered clause 4.3 of the Operating Procedure to be invalid and inconsistent with the Corrections Management Act 2007 (ACT).[9]
Justice Loukas-Karlsson provided a detailed analysis of Victorian and ACT authorities when determining whether decisions made during Mr Davidson’s 63 days in the Management Unit breached human rights protections and obligations owed by the Director-General.[10] Her Honour noted that once a prima facie breach of human rights is established, the onus shifts to the public authority to justify why the human right was limited by its actions.[11] Her Honour referred to the observations of Justice Dixon in the Certain Children case, who stated that public authorities cannot merely give ‘lip service’ to human rights ‘whilst working towards a pre-determined outcome’.[12] Further, Her Honour noted that when determining which human rights are relevant to decisions made by public authorities, this should be done ‘in the broadest way possible’.[13]
Ultimately, Justice Loukas-Karlsson held that when the Director-General denied Mr Davidson access to the open air, space to exercise and access to the general exercise yard, the Director-General acted incompatibly with and failed to give proper consideration with the right to humane treatment when deprived of liberty.[14] In fact, Her Honour agreed that there was no evidence of any consideration of Mr Davidson’s right to humane treatment, let alone proper consideration.
As Her Honour summarised:
In summary, a denial of open air and exercise is a failure to treat a detained person with humanity and dignity… Access to at least one hour in the open air and an adequate space to exercise is not ‘unavoidable in a closed environment’, particularly as the requirement is designed precisely for the closed prison environment. Such access has particular importance for detainees in segregation or separate confinement.[15]
Decision
The ACT Supreme Court declared:
Access to the rear courtyard of the Management Unit at the AMC does not does not comply with section 45 of the Corrections Management Act 2007 (ACT);
Clause 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with section 45 of the Corrections Management Act 2007 (ACT);
Pursuant to section 40C of the Human Rights Act, that the Director General breached the plaintiff’s human rights under s 19(1) of the Human Rights Act; and
Pursuant to section 32 of the Human Rights Act, that clause 4.3 of the 2019 Operating Procedure is incompatible with the plaintiff’s human rights under section 19(1) to be treated with humanity and with respect for the inherent dignity of the human person while deprived of liberty.
Commentary
Mr Davidson’s right to seek judicial enforcement of his human rights is provided for under section 40C of the Human Rights Act 2004 (ACT). This provision is different to the legislative bases in Victoria and Queensland, where human rights protections are enlivened and able to be brought before a Court where there is a separate ground of unlawfulness or right to relief outside the human rights legislation.[16] So, if a similar circumstance arose in Victoria or Queensland, access to the Court would be limited by the requirement of a principle cause of action alongside an alleged violation of human rights legislation.
However, if such a principle cause of action could be established, this case provides a strong basis for and timely reminder to public authorities that their policies are expected to be compatible with, and give proper consideration to, human rights protections. Public authorities should be particularly wary of imposing limitations on human rights by considering what is ‘practicable’ with reference to staff shortages.
The full text of the decision is available here (along with photos of the relevant prison conditions).
Morsaal Aimaq is a graduate lawyer on secondment at the Human Rights Law Centre.
[1] R v Davidson [2018] ACTSC 227.
[2] United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) r 44.
[3] Corrections Management Act 2007 (ACT) (Corrections Management Act) s 45.
[4] Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 [40] – [77].
[5] Court Procedure Rules 2006 (ACT) r 1509.
[6] Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [199] - this is a general entitlement to humane treatment, denial of which is a question of fact and degree to be assessed in all the circumstances: see also Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20.
[7] Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [213] citing Andrew Coyle and Helen Fair, A Human Rights Approach to Prison Management: Handbook for Prison Staff (International Centre for Prison Studies, 3rd ed, 2018).
[8]Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [386] – applying Taunoa v Attorney General [2007] NZC 70; Sharon Shalev, A Sourcebook on Solitary Confinement (Mannheim Centre for Criminology, London School of Economics, 2008).
[9] Clause 4.3 of the 2019 Operating Procedure was beyond the power conferred under s 14(1) of the Corrections Management Act.
[10] Hakimi v Legal Aid Commission [2009] ACTSC 48; Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; Director of Public Prosecutions (ACT) v Close [2015] ACTSC 10; Director of Public Prosecutions (ACT) v Nikro [2017] ACTSC 15; Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70; Baker v Director of Public Prosecutions (Vic) [2017] VSCA 58; Director of Public Prosecutions v Kaba [2014] VSC 52; Kracke v Mental Health Review Board [2009] VCAT 646.
[11]Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [344].
[12] Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [374] citing Certain Children v Minister for Families and Children (No 2) [2017] VSC 251 at [515].
[13] Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [366]
[14] Human Rights Act 2004 (ACT) (Human Rights Act) s 19(1).
[15] Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [213] citing Castles v Secretary, Department of Justice [2010] VSC 310.
[16] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 39(1); Human Rights Act 2019 (Qld) s 58.