Abstract
This article considers the multitude of inquiries and investigations into the treatment of children in youth detention in Australia over the past five years (2017–2022) as well as examples of practices that constitute torture and other cruel, inhuman or degrading treatment under international law (in particular, solitary confinement, use of restraints and force and strip searching). It explores how Australia might move beyond reacting to such treatment to preventing it because of the international and national monitoring and oversight mechanisms introduced by the Optional Protocol to the Convention Against Torture (OPCAT).
Nearly seven years ago (in 2016) there were two high-profile ABC investigations into the treatment of detained children 1 in separate Australian jurisdictions: the Northern Territory (NT) (when images of Dylan Voller in a spit hood and restraint chair in the Don Dale Youth Detention Centre ‘shocked the nation’ as they were broadcast) 2 and in Queensland. 3 The ABC’s coverage of treatment of children in the Don Dale Youth Detention Centre prompted the then Prime Minister, within 36 hours, to announce the Royal Commission into the Protection and Detention of Children in the Northern Territory (RCNT). 4 Upon its conclusion in November 2017, the RCNT’s main recommendation (of a total of 227 recommendations) was that the Don Dale centre be closed. 5 This recommendation has not yet been implemented. 6
At the time of the announcement of the RCNT, there were calls for the Royal Commission to examine juvenile detention nationally due to the problems in juvenile detention being far more widespread than the NT. 7 However, those calls did not lead to an expansion of the Commission’s remit. 8
In mid to late 2022, there were national and state-based inquiries, as well as media investigation into the treatment of detained children in two further Australian jurisdictions: Western Australia (WA) and Tasmania. Regarding WA, the national Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability heard evidence about the Banksia Hill Detention Centre. 9 There was also, in August 2022, a West Australian Supreme Court decision that solitary confinement was being used in an unlawful manner at Banksia Hill. 10 Furthermore, in November 2022 an ABC Four Corners episode entitled ‘Locking Up Kids’ focused on the treatment of children detained in Banksia Hill, with a particular emphasis on solitary confinement and restraint. 11
The Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings has documented abuse at the Ashley Youth Detention Centre 12 that builds on inquiries dating back to 2007 and which have raised concerns about the centre’s operations. 13
Both Banksia Hill and Ashley detention centres have come to the attention of the United Nations (UN), with the concluding observations of the UN Committee Against Torture (CAT/C) on Australia in December 2022 specifically mentioning the practice of solitary confinement in both centres to be a ‘serious concern’. 14 The CAT/C also recommended that Australia ‘give due consideration’ to the recommendations made by the RCNT in the context of addressing the over-representation of First Nations people in custody, bringing international attention to the lack of action in response to the RCNT. 15
The repetitive exposure of mistreatment of children in juvenile detention in Australia raises the important question about the mechanism/s available to prevent such treatment from continuing (other than discontinuing the use of juvenile detention, which will not be canvassed here). 16
Fortunately, there is a mechanism available that has a preventive focus and also facilitates the implementation of recommendations which aim to improve the operation of all places where people are deprived of their liberty – including youth detention centres. The mechanism – the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) – was ratified by Australia in December 2017. 17 This article explains how the OPCAT could revolutionise the current situation that is characterised by exposure and documentation of abuse by inquiries such as Royal Commissions and other investigatory bodies (such as Ombudsmen and prison inspectorates), recommendations made by such inquiries and bodies that are ignored by governments, followed by further inquiries and investigations that document the same abuse.
Not only is the status quo exposing children to harmful treatment that could be prevented, but it is costly to continue investigating in a reactive manner.
Overview
The first part of this article provides an overview of the problematic treatment of children in juvenile detention that has been documented by inquiries and investigatory bodies since 2017 and establishes that this treatment falls within the scope of the OPCAT. The second part outlines the changes that the OPCAT will require and how it has the potential to improve the conditions in juvenile detention centres around Australia.
Torture and cruel, inhuman or degrading treatment
The types of problematic treatment of children in juvenile detention around Australia which have been documented by Royal Commissions and other inquiries from 2017 to 2022 centre around solitary confinement, use of force, restraints and strip searching. In summary, over the course of these five years, there have been inquiries in all jurisdictions by standing organisations including prison inspectors, 18 Ombudsmen, Children’s Commissioners, and/or by ad hoc inquiry mechanisms such as Royal Commissions or parliamentary committee inquiries. 19 In the specified timeframe, solitary confinement has been documented in all jurisdictions. Use of force/restraints has been documented in all jurisdictions except Queensland and strip searching has been documented in most jurisdictions (excluding Queensland, South Australia (SA) and Victoria).
Documentation of treatment in youth detention 2017–2022.
Under international law, all the types of treatment may fit within the definition of torture or cruel, inhuman or degrading treatment or punishment (TCID), that violates multiple UN Treaties to which Australia has voluntary committed. TCID is prohibited by the following Treaties/provisions in Treaties: • United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT)
20
and the Optional Protocol to this Treaty (OPCAT) (discussed in the next section) • Article 37(a) of the United Nations Convention on the Rights of the Child (CROC) (which applies to everyone under the age of 18)
21
• Article 7 of the United Nations International Covenant on Civil and Political Rights (ICCPR)
22
• Article 15 of the Convention on the Rights of Persons with Disabilities (that provides this protection to people with disabilities, specifically).
23
Three jurisdictions – the ACT, Victoria and Queensland – have incorporated the prohibition of TCID into domestic law: • Section 10 of the Human Rights Act 2004 (ACT) • Section 10 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), and • Section 17 of the Human Rights Act 2019 (Qld).
Torture is also an offence under the Criminal Code Act 1995 (Cth).
Supplementary detail about the interpretation of the prohibition of TCID and the types of treatment that constitute TCID is provided by the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (known as the Havana Rules) 24 and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) 25 (which apply more broadly to imprisonment, including of juveniles).
Solitary confinement is prohibited for use on children by Rule 45(2) of the Mandela Rules and Rule 67 of the Havana Rules. The Havana Rules spell out the connection between solitary confinement and TCID, stating: All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.
Solitary confinement is defined by Rule 44 of the Mandela Rules to involve ‘22 hours or more a day without meaningful contact’.
The UN Special Rapporteur on Torture and two UN Committees have recommended that solitary confinement be prohibited in youth detention. The Special Rapporteur refers to prohibition of confinement ‘of any duration and for any purpose’, 26 the Committee on the Rights of the Child’s recommendation was directed specifically at Australia 27 and the CAT/C recommended in December 2022 that Australia ‘[i]mmediately end the practice of solitary confinement for children across all [Australian] jurisdictions’. 28
In the same report by CAT/C it was recommended that use of restraint and force be ‘explicitly’ prohibited ‘as a means of coercion or disciplining children under supervision’ in Australia.
29
This goes further than Rule 64 of the Havana Rules that indicates that such methods can only be used in exceptional cases, where all other control methods have been exhausted and failed, and only as explicitly authorized and specified by law and regulation. They should not cause humiliation or degradation, and they should be used restrictively and only for the shortest possible period of time.
The Havana Rules do not deal with strip searching, but Rule 52 of the Mandela Rules specify that this practice should be ‘undertaken only if absolutely necessary’, and further that ‘[p]rison administrations shall be encouraged to develop and use appropriate alternatives to intrusive searches’. It should also be noted that strip searching interferes with other rights contained in the CROC and ICCPR, including the right to privacy (Article 16, CROC; Article 17, ICCPR) and the right to be treated with humanity and respect when deprived of liberty (Article 37(c), CROC; Article 10(1), ICCPR).
The Australian Children’s Commissioners and Guardians provided the following detailed guidance to discourage strip searches in youth detention: Subjecting children in youth detention to strip searches is often demeaning and humiliating. For children with experiences of physical and sexual abuse, these practices can be highly traumatising. Governments should legislate to prohibit strip/unclothed searching as part of a general compliance regime in youth detention centres. Strip/unclothed searching should only be permitted when there is a reasonable, well-founded suspicion that a child or young person is concealing items that threaten the safety or security of the youth detention centre (such as weapons), and which cannot be found using a ‘pat/frisk’ search. If a strip/unclothed search is necessary, it must be carried out in a manner that is consistent with the dignity of the child or young person being searched and reflects the unique vulnerability of children and young people in youth justice detention.
30
The Special Rapporteur on Torture has recommended that use of restraints, force and strip searches be very limited, noting as follows: To use restraints or force only when the child poses an imminent threat of injury to himself or herself or others, only for a limited period of time and only when all other means of control have been exhausted, and not to perform strip searches without reasonable suspicion.
31
What the OPCAT offers
The OPCAT is an international tool for preventing TCID in all places where people are deprived of their liberty.
32
It establishes the practical infrastructure to achieve the obligations imposed by the CAT. The prevention focus is defined in Article 1 as: to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
The reference to ‘international and national bodies’ refers to the establishment of two distinct levels of monitoring and oversight. These are, first, international-level monitoring by the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), and second, national-level monitoring by a National Preventive Mechanism (NPM).
The SPT commenced its first visit to Australia in October 2022 but had to suspend that visit due to ‘lack of co-operation’. 33 Australia is in the process of establishing a NPM that will cover all the relevant places where people are deprived of their liberty (such as prisons, forensic psychiatric facilities, and so on) across all states and territories. Australia requested an extension to January 2023 to finalise the establishment of the NPM. 34 In 2018 the Commonwealth Ombudsman was designated as the coordinating body for the NPM. 35 Some states/territories have designated NPMs, but not all had at the time of writing – despite the January 2023 deadline. 36
There are several differences with the monitoring that the OPCAT requires compared with pre-OPCAT monitoring and oversight – the most obvious being that the SPT can visit Australian places of detention and make recommendations. 37 Another significant difference is that the monitoring is preventive; it aims to ensure mistreatment does not occur, which is different to current mechanisms (including Royal Commissions, coronial inquests, prison inspectorate reports and Ombudsmen investigations) that document the mistreatment after it has taken place.
Additionally, there will be national-level monitoring so that the mistreatment of children in juvenile detention has the potential to move beyond separate consideration on a state/territory basis, which has been the case with inquiries and investigations to date (other than the national Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability). Organisations that are part of the NPM and involved in monitoring juvenile detention can potentially learn from each other about best practice. Best practice, as well as consistency, is facilitated by the development of inspection standards. A precedent for this is the inspection standards that prison inspectorates already have; some of these are specific to juvenile detention. 38 However, the standards are likely to need adjustment to achieve the OPCAT’s focus on prevention of TCID.
The other possibility that national-level NPM coordination presents is that treatment of specific groups may be compared across types of places of detention. This could include comparing the treatment of First Nations people who are over-represented in prisons and juvenile detention, 39 and comparing the treatment of people with mental illness or cognitive disability across types of places of detention, such as forensic psychiatric units, police custody, prisons and juvenile detention.
To support this comparison, there is scope for OPCAT monitoring to be culturally sensitive 40 and to take into account the needs of people with disabilities. 41 This is extremely important in light of the over-representation of First Nations children and children with mental illness or cognitive disability in detention in Australia. 42
OPCAT monitoring includes direct engagement with those who are deprived of their liberty. Article 14 entitles the SPT to ‘private interviews with persons deprived of their liberty’ and Article 20 makes equivalent provision for NPMs. There is research suggesting that detained juveniles currently distrust external monitoring bodies.
43
Ewenson and Naylor have developed specific recommendations for engaging youth in OPCAT monitoring, including: • ensuring ‘cultural safety and connection for the young people detained’, • managing ‘risk of reprisals’ and • ensuring NPMs are ‘open to engaging with children and young people once they are released from detention’.
44
have a key role in ensuring that these young people are treated fairly and appropriately in detention, that they have the opportunity to speak up safely about their detention concerns, and that the deprivation of liberty is the only rights deprivation they experience within the criminal justice system.
45
Ewenson and Naylor conclude that NPMs
This demonstrates the potential for OPCAT monitoring to be an improvement on the pre-OPCAT systems of monitoring.
A final significant difference – particularly in light of the Royal Commissions and other inquiry and investigatory bodies’ recommendations that have not been implemented in recent years – is that the OPCAT requires governments to actively consider how to implement recommendations made by both the SPT and NPM. Article 19(b) of the OPCAT provides that NPMs have the power to ‘make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of liberty’. Article 22 goes on to stipulate that ‘authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures’. 46 While this does leave scope for governments to ignore NPM recommendations, it imposes a greater obligation than exists with mechanisms such as Royal Commissions, which cease to exist upon provision of a report to government. 47
Discussion
The OPCAT changes the monitoring landscape for juvenile detention and other places where people are deprived of their liberty. The shift to preventive monitoring is particularly important because existing mechanisms are reactive and the trend has been that too many recommendations are not implemented, such that mistreatment and abuse is repeated.
However, there are several prerequisites for the OPCAT to succeed. These include proper resourcing of fully independent organisations that form the NPM and ensuring adequate national-level coordination so that the NPM operates cohesively. 48 Lessons may be learned from other countries (including other federations) that have multi-organisation NPMs. 49
The argument that preventive monitoring requires increased resourcing 50 has been over-stated when the cost of Royal Commissions and other inquiries/investigations and retrospective payments are taken into account. For example, the RCNT cost $54 million and the NT government’s involvement reportedly cost a further $16 million (including legal costs). 51 It costs governments money to conduct coronial inquests into deaths in custody, 52 and to make ex gratia and other compensation payments to those who suffer harm (such as, following litigation). 53 Furthermore, when children are mistreated in juvenile detention they are less likely to be rehabilitated and more likely to go on to adult imprisonment, 54 which was costed at an average of $272.41 per person per day in 2020–21. 55 If this reactive expenditure can be saved, the funds can be reallocated to the NPM. Grenfell and Caruana argue that ‘[f]rom a budget perspective, NPMs are low-cost’. 56
These are the economic costs. The human costs cannot be quantified, but also need to be factored into the equation. The State owes a duty of care to each and every incarcerated child. Further, Australia must comply with the obligations imposed by the UN Treaties to which it has voluntarily committed, as well as legislative requirements, and this involves ensuring detained children are not subjected to TCID. One way of doing this is to operationalise the preventive monitoring regime required by the OPCAT.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
