Updated on 3 July 2024

What laws must be followed for separation?

The laws that must be followed for separation depend on the type of separation. There are two types of separation:

  1. Separation that happens from a separation order; and
  2. Separation that happens without a separation order.

A separation order is an order that is put together by prison management and then sent to the Sentence Management Division (SMD) or Sentence Management Operations (SMO) to be checked and approved or endorsed.

Separation that happens from a separation order

The Sentence Management Manual PM 3 says a separation order must be made when the separation is about:

  • Transfer of a person to a high security unit
  • Transfer of a person into a management unit or cell
  • Transfer of a person into a medical or psychiatric observation cell
  • Keeping a person in their cell for management reasons where it’s expected the separation will last for more than 24 hours

A separation order must generally:

  • Be in writing;
  • Include the reason for your separation; and
  • Be given to you within 12 hours of separation.

For urgent separation orders, the SMD or SMO can make the order verbally, but they must make a written order as well within 12-24 hours. These requirements come from Regulation 34 of the Corrections Regulations 2019 (Vic).

Regulation 32 of the Corrections Regulations 2019 (Vic) says a separation order can only be made about you where the person deciding believes on reasonable grounds that the separation is necessary:

  1. For your safety and protection; or
  2. For the safety or welfare of any person; or
  3. For the management, good order or security of the prison.

Important: you should not be separated for any longer than what is necessary for these purposes.

Before drafting and endorsing a separation order, prison management and the Sentence Management Division or Sentence Management Operations must consider:

  • Any medical and psychiatric condition/s you have
  • If you are under 18, your age, your best interests and your vulnerability

Separation that happens without a separation order

Separation can happen without a separation order:

  • During lockdowns caused by things like staff shortages, security issues and industrial action (like a strike by prison staff)
  • When prison staff keep someone in their cell for a short period of time that doesn’t significantly impact the usual out-of-cell time
  • When a person already classified as a ‘long term management prisoner’ is being transferred between high security or management units

Decisions made by prison staff to separate someone without a separation order can only be made where it is a “reasonable step for the security of the prison or part of the prison”. This comes from Section 20 of the Corrections Act 1986 (Vic).

Decisions made by the General Manager to separate someone without a separation order can only be made where it is a “reasonable step for the security of the prison or part of the prison”, or necessary for the “management, security and good order of the prison”. This comes from sections 21 and 22A of the Corrections Act 1986 (Vic).

The Deputy Commissioner’s Instructions 1.17 say that when Corrections Victoria or prison staff are making a decision about your separation, they must consider:

  • Your individual needs and vulnerabilities
  • Your human rights
  • The Mandela Rules
  • The Optional Protocol the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT)

The Mandela Rules on solitary confinement

The UN Standard Minimum Rules for the Treatment of Prisoners 2015 (known as the ‘Mandela Rules’) provide international minimum standards for the treatment of people in prison. They are not legally binding but are recognised around the world and referenced by Corrections Victoria on their website and in their policies.

The Mandela Rules includes specific rules about solitary confinement. Solitary confinement is defined in the Rules as “confinement of prisoners for 22 hours or more a day without meaningful human contact”.

Section 32(2) of the Victorian Charter of Human Rights also says that international law can be taken into account when you are interpreting Victorian laws like the Corrections Act 1986 (Vic). This includes laws about separation.

The Commissioner’s Requirements and Deputy Commissioner’s Instructions say that when prison staff are making a decision about separation, they must consider these rules.

For more information on the Mandela Rules about solitary confinement, use the link on the left side of this page.

Next - Separation Mandela Rules on solitary confinement
CONTENTS