Preventive detention monitoring is effective: A case study on isolation of children and young people in the Australian Capital Territory

Abstract

This article addresses the role of detention monitoring in preventing ill-treatment of detained children and young people, focusing on the use of isolation. It discusses learnings from the Australian Capital Territory’s Office of the Inspector of Custodial Services (OICS) pilot National Preventive Mechanism (NPM) visit to the Bimberi Youth Justice Centre in 2023. This visit was in accordance with OICS’ designation as an NPM (domestic torture prevention body) under the United Nations Optional Protocol to the Convention against Torture. It outlines preparatory steps taken to facilitate an effective, partially announced visit, its successful strategy of escalating urgent matters, and the ongoing challenges and positive outcomes secured by the ACT NPM to facilitate future preventive monitoring.

The United Nations (UN) Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) ¹ supports obligations of States Parties to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), ² to take effective measures to prevent torture. In 2017 Australia ratified the OPCAT human rights treaty, that establishes

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. ³

As of 28 July 2025, 94 States had ratified OPCAT. ⁴ Only Australia, New Zealand, Nauru, the Philippines and Cambodia had ratified in Australia’s geographical region.

The international monitoring body under the OPCAT, the Subcommittee on Prevention of Torture (SPT), is comprised of 25 independent, international experts who visit States Parties periodically. The SPT has only once visited Australia, in October 2022, but it suspended ⁵ and then terminated ⁶ the visit, citing obstruction of access to places of detention and information, in contravention of the OPCAT, which provides for unfettered access to all places of detention and to relevant information. ⁷ This was only the second time that the SPT has terminated a country visit. ⁸

The domestic mechanism for independent detention monitoring (known as a National Preventive Mechanism, or NPM) has the greatest potential to improve conditions and treatment in detention, if appropriately established and resourced. States Parties are required to establish or designate independent monitoring bodies to perform the NPM function. The Australian NPM is comprised of several bodies across Australian states and territories ⁹ (with New South Wales (NSW), Victoria and Queensland yet to nominate their NPM bodies). The Australian Capital Territory (ACT) NPM consists of the ACT Office of the Inspector of Custodial Services (OICS), the ACT Ombudsman and the ACT Human Rights Commission. ¹⁰

The OPCAT mandate requires that NPM bodies work to prevent torture and ill-treatment by focusing on systemic rather than individual issues and identifying root causes of ill-treatment. NPMs complement other detention oversight mechanisms, which may focus on accountability after ill-treatment has already occurred (eg, investigations, complaints adjudication, civil litigation, criminal prosecutions, coronial inquests, systemic inquiries and royal commissions). ¹¹ Central to an NPM’s mandate is working constructively with detaining authorities to mitigate risks of ill-treatment and to strengthen human rights protections, with States Parties being required to ‘enter into a dialogue’ with the NPM. ¹²

The preventive mandate of the NPM is broad. The core function of an NPM is to conduct regular visits to places of deprivation of liberty, but also encompasses policy and educational functions. The Australian NPM’s inaugural joint Annual Report noted the mandate of the NPM includes visiting, advisory, educational and cooperation functions (the ‘preventive package’). ¹³ The case study in this article is ACT OICS’ pilot NPM visit to Bimberi Youth Justice Centre (Bimberi), the ACT’s only youth detention centre, during which OICS exercised the monitoring function of an NPM. ¹⁴ ACT OICS’ broader NPM preventive mandate has included education activities on the OPCAT, including jointly with the other ACT NPM entities. In 2022–23, the ACT NPM developed targeted factsheets for detained adults, and children and young people, and other stakeholders (detaining authorities and civil society organisations), ¹⁵ and ACT OICS delivered information sessions on the OPCAT to staff at Bimberi. In exercising its NPM mandate, ACT OICS has also made submissions on draft legislation (a function explicitly provided for in the OPCAT), ¹⁶ including its submission to the ACT Inquiry into Justice (Age of Criminal Responsibility) Legislation Amendment Bill 2023. ¹⁷

A thematic focus on the isolation of children and young people

Isolation was chosen as the focus of OICS’ NPM pilot visit ‘because of the potential for isolation, particularly when it is prolonged, to cause significant harm to children and young people in detention’. ¹⁸ The use of isolation in youth detention has long been of concern across Australia, in light of indisputable evidence of the harms of isolation and solitary confinement (which may amount to torture in certain instances). ¹⁹ It has been the focus of ongoing work and advocacy of non-NPM detention monitoring bodies, ²⁰ NPM bodies, ²¹ statutory bodies, ²² civil society ²³ and researchers. ²⁴

Preparing for the pilot NPM visit

With ACT OICS’ pilot NPM onsite visit planned for 1 to 6 June 2023 (including during the evening and over the weekend), OICS began preparation in February 2023. Prior OICS reviews under the Custodial Inspector Act 2017 (ACT) had entailed advising the detaining authorities of visit dates and themes. In contrast, the theme and date for the pilot NPM visit were not disclosed to detaining authorities in advance, although management was advised that the visit would occur within a specified period of several months. It is established best practice that NPMs conduct both announced and unannounced visits, and that it is a matter for each NPM to determine their preferred approach. In making its decision, it may be relevant for an NPM to consider factors such as constructive engagement with detaining authorities, assessing ‘authentic’ conditions and treatment, ability to review material in advance to prepare for the visit, and mitigating the risk that detained people may not be brought into the facility or be moved to another facility (which was not an issue of concern in these particular circumstances). ²⁵ Bimberi management was receptive to the unannounced aspect, guaranteeing the team access upon arrival, and facilitating safety and site induction with the visit team in advance.

Having key and fingerprint access, radios, and duress alarms facilitated OICS’ ability to access all parts of the Centre, and conduct private interviews with staff, contractors, and children and young people. OICS was able to access all information, documents and records (eg, CCTV and health records); however, the team was not able to access the electronic records system up to the time of the visit (although this access has since been provided). ²⁶ The review team was able to bring cameras and recording devices into Bimberi.

The OPCAT emphasises that visits should be conducted by NPM visiting teams with the ‘required capabilities and professional knowledge’. ²⁷ Given that the theme was the isolation of children and young people, a team member with a clinical background was essential. As a public health physician with expertise in custodial health, Dr Michael Levy (one of the authors of this article) was engaged for this visit. Health practitioners can provide a competent review of clinical issues. Particularly, with custodial experience, they can provide considered advice when security versus health decisions are raised.

Preparation for the pilot NPM visit included developing policies, procedures and templates for NPM-style visits including a Safe and Effective Youth Engagement Strategy; a Reprisals Policy; templates (meetings with detaining authorities, reprisals register, civil society engagement register); updated consent forms for children and young people; Isolation Expectations; Aide-Mémoires for the site visit; and a Backgrounder providing analysis of relevant information on isolation and segregation of children and young people in the ACT (eg, relevant previous inquiries and litigation, and analysis of legislation and publicly available policies and procedures). ²⁸

Developing isolation expectations/standards for youth detention

While the OPCAT does not introduce any new substantive rights, it is still a human rights instrument. Consequently, NPMs are guided by international human rights instruments such as the UN CAT and the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). ²⁹ OICS had previously prepared standards for adult correctional services and interim standards for youth detention places, informed by international human rights. ³⁰ However, in preparing for the visit, OICS came to the conclusion that ‘distilling key principles specific to isolation would assist the review’, ³¹ and prepared more focused, detailed guidance. The Isolation Expectations covered procedures and safeguards; health-specific expectations; meaningful contact; education, programs and services, and cultural and religious personnel; appropriate staff, and staff responsibilities; and material conditions. ³² Sources used in the preparation of the Isolation Expectations included ‘hard’ and ‘soft’ international human rights instruments, ³³ guidance from UN bodies and UN Special Rapporteurs, regional guidance, ³⁴ NPM standards in other jurisdictions, and guidance from non-government organisations (NGOs) and international peak medical bodies. ³⁵

Reflecting on good practices used in preparation for and during the pilot NPM visit

Educating detention centre staff on OPCAT prior to visit

As the visit functioned as a pilot NPM visit, the visit team met with Bimberi management to explain the NPM mandate under the OPCAT, including that detaining authorities must guarantee the NPM unfettered access to people and information, and that reprisals against detained people, staff and contractors were prohibited. ³⁶ At the time of the visit there was not yet specific legislation setting out the function and powers of the NPM, ³⁷ however almost all the requisite powers existed in the Custodial Inspector Act 2017 (ACT). The team also delivered information sessions to Bimberi staff, distributing an ACT NPM factsheet for detaining authorities. ³⁸ This raised awareness about the OPCAT and clarified OICS’ expectations and NPM methodology, with the intention of making the visit as straightforward as possible, and to adhere to the detention monitor’s goal to ‘do no harm’. ³⁹ Bimberi senior management supported OICS’ awareness-raising initiatives including by making all-staff training periods available to deliver the information sessions across both shift lines. The visit ran smoothly, with no reported reprisals.

Centering the children and young people deprived of their liberty

The OPCAT articulates that interviewing people deprived of their liberty is key to NPMs effectively exercising their mandate. ⁴⁰ A human rights based approach requires focusing on the voices of children and young people. ⁴¹ While a place of detention might appear to be operating well in terms of compliance with seemingly robust laws, policies, and practices, guided by currently recognised and developing good practices, this may not always translate to a positive experience for children and young people. To identify gaps, missed opportunities and unintended consequences of laws, policies and procedures, an NPM that monitors places where children and young people are detained must prioritise children and young people’s experiences of conditions and treatment in detention, as described by them. Speaking to children and young people is, of course, also key to triangulating evidence during a visit. ⁴²

A child-centred approach is one that is safe and meaningful for children and young people. The review team developed a Safe and Effective Youth Engagement Strategy for that visit, and for future work. This document provided guidance on appropriate communication. Strategies to develop rapport and engage in trauma-informed, child-friendly interviews included:

• balancing ‘productivity’ (ie, collecting information) and building rapport with the children and young people, and acknowledging the beneficial impact that positive engagements can have in and of themselves (playing board games and table tennis, having casual conversations);

• preparing information and activity packs, which included items such as sensory fidget toys and facial masks for skin care for every child/young person in the Centre (including those who did not engage with OICS); and

• bringing a range of snacks for interviews (including food suggested by the children and young people), ensuring that all children and young people were offered snacks, regardless of whether or not they chose to engage with the visit team.

After the visit report was finalised, OICS prepared a version of the report targeted at children and young people. ⁴³ This was provided to children and young people in person, ⁴⁴ where OICS explained the findings and recommendations, and the government’s response. At this feedback session the children and young people informed the team of a trial to have chairs in their cells (one of OICS’ recommendations; ⁴⁵ although in the subsequent 2024 Review, ⁴⁶ OICS found that only one of the children’s cells had a chair) and changes to reception quarantine practice (one of OICS’ recommendations, discussed below). They also informed the team that they had seen media coverage of OICS’ report on the evening news. This is an example of a benefit of utilising the media and other methods to disseminate findings and recommendations.

Successfully escalating concerns about reception isolation and medical confidentiality

Upon commencing the visit, the team did not anticipate the ongoing use of reception quarantine at Bimberi (which had been initiated during the COVID-19 pandemic). The broader community context was that quarantine and isolation requirements regarding a positive COVID-19 test had been lifted some eight months prior. Furthermore, the ACT’s final COVID-19 Management Declaration had been revoked four months earlier, on 28 February 2023. ⁴⁷

However, while onsite in early June 2023, ‘the Review Team found … significant COVID-19 isolation restrictions on newly admitted children and young people, despite clear downgrading of risk posed by the virus since the height of the pandemic’. Children and young people were being placed on 5- to 7-day segregation upon admission. A Polymerase Chain Reaction (PCR) test was administered on arrival and, if it was negative, they would remain on health isolation but could leave their cell and move around their locked unit with a courtyard. On day 5 another PCR test was administered and, if this was negative, they were released into Bimberi’s general population – this usually occurred on day 6 or 7 post-admission due to delay in test results. ⁴⁸ If the PCR was positive, they would remain in isolation.

Children and young people with whom OICS spoke told the team that they were aware COVID-19 restrictions had been relaxed in the community, and they saw the restrictions as disproportionate, inconsistent and unfair, but they seemed somewhat resigned, concluding that ‘it is what it is’ and that they ‘felt there was nothing they could do to change the situation.’ ⁴⁹

The reception isolation practice imposed on children and young people was in stark contrast to the approach for Bimberi staff, who were not required to undergo any surveillance testing upon entry to Bimberi (visitors were required to return a negative Rapid Antigen Test/RAT). The visit team confirmed that, as of 14 October 2022, Bimberi as a place of youth detention was no longer considered a ‘high-risk setting’ with regards to the COVID-19 pandemic. Furthermore, OICS’ research found that less onerous approaches in other Australian jurisdictions were being used at that time. ⁵⁰

Another key finding by OICS was that the confidentiality of the health induction (an assessment of the child’s health needs, conducted by a health practitioner within 24 hours of the child or young person’s arrival at the youth detention facility) was not preserved, even though sensitive health and other personal information could be discussed. OICS observed Bimberi youth detention officers standing in close proximity during the induction (within hearing distance, as well as in line of sight), a practice inconsistent with human rights standards. Further, medical staff wore a disposable gown, face mask, face shield and gloves during the induction, which was no longer a proportionate response to the contemporaneous risks of infectious disease and was not a trauma-informed practice. ⁵¹

The team raised these issues during the visit week and in the exit meeting (at the end of the onsite visit). The team was advised by Bimberi staff that these practices were

primarily to limit staff exposure to COVID-19, although [the Directorate] provided the following comment on the draft report: ‘[a]t no time has Bimberi had Health Segregations in place to protect staff. Protections are in place because we are legally required … to not expose young people to infection. That is the primary purpose for restrictions.’ ⁵²

As OICS did not receive a positive response at site level, on 14 June 2023 Rebecca Minty, in her capacity as Inspector, wrote to the relevant Minister and Directorate officials ‘to bring urgent attention to COVID-19 isolation practices’. The Inspector recommended the following with regards to the isolation and health induction practices:

(1) Urgently revise the current practice of COVID-19 health segregation of children and young people on arrival at Bimberi, in light of the well-documented, harmful impacts of isolation on children and young people, and the initial hours and days in custody being a period of high risk to their wellbeing and mental health. We recommend favourable consideration of a measure such as RAT on arrival and releasing children and young people to the general population as soon as a negative RAT is recorded.

(2) All health interviews with children and young people during induction to be conducted respecting confidentiality, and without the use of face shields. ⁵³

The decision to escalate the matter to Ministerial level reflected the urgency of the issue, noting the potential for significant harm to children and young people from isolation. The matter was not escalated lightly, noting that the effectiveness of this approach generally may hinge on its sparing use for matters of utmost concern, that required a timely reply.

In a much faster response than would have been possible if OICS had waited until its visit report had been tabled in the Legislative Assembly and the ACT government responded, OICS was advised on 4 July 2023 that their recommendations had been accepted. ⁵⁴ The ACT government’s 2024 formal, tabled response to the OICS report stated that the ‘issue of health isolation for young people upon induction to Bimberi was swiftly addressed’ and that ‘changes were immediately made to initial health assessment procedures’. ⁵⁵ In OICS’ subsequent visits to Bimberi, it found sustained implementation of these urgent recommendations. ⁵⁶

Securing outcomes that will assist ACT OICS exercise its OPCAT mandate

In preparing for the OICS pilot NPM visit, the ACT NPM identified gaps in OPCAT compliance in ACT legislation. As a result, the ACT NPM met with the Attorney-General and Directorate officials, to discuss the required amendments to the existing Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018, ⁵⁷ which, at the time, did not address the powers, privileges and immunities of the NPM. Constructive engagement between the ACT NPM and government saw the introduction of the Monitoring of Places of Detention Legislation Amendment Bill 2024, ⁵⁸ establishing the ACT NPM, providing for its functions, independence, access powers (to places, people and material), and ability to make recommendations and write reports. Further, the Bill extended the protection against reprisals to those who engage with the NPM (including detained people and staff).

Ongoing challenges for effective torture prevention work

Following up on implementation of recommendations

Under the OPCAT, detaining authorities are required to ‘examine the recommendations of the [NPM] and enter into a dialogue with it on possible implementation measures’. ⁵⁹ In OICS’ Bimberi pilot onsite exit meeting, some key initial findings and potential recommendations were raised with the detaining authorities. This was then followed up with provision of a copy of the draft report for them to correct any factual errors and afford natural justice. The report was then finalised and tabled in the ACT Legislative Assembly. The ACT government tabled its response to the recommendations in March 2024. ⁶⁰

A challenge for OICS in effectively exercising its NPM mandate is a lack of resourcing to follow up on recommendations. This work is crucial to achieving positive outcomes for detained people, rather than outputs (the recommendations to detaining authorities). Additional resourcing would enable OICS to:

• track implementation of accepted recommendations, and mark the recommendations as complete when they have been implemented to OICS’ satisfaction; and

• engage in ongoing, constructive dialogue with detaining authorities and the ACT government to ascertain why recommendations may not have been accepted, had been partially accepted or had only been accepted in principle. This would facilitate OICS developing appropriate strategies to better formulate recommendations in the future, and to address any obstacles to recommendation implementation.

Monitoring for reprisals

The ‘do no harm’ principle is central to any human rights monitoring work, ⁶¹ and the OPCAT explicitly prohibits detaining authorities from ordering, applying, permitting or tolerating

any sanction against any person or organization for having communicated to the [SPT] ... any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way. ⁶²

The SPT has a policy that it may request the domestic NPM to conduct follow-up visits to places of detention that the SPT has visited if it ‘becomes aware of the occurrence or risk of occurrence of reprisals’. ⁶³

As discussed by Professor Naylor, the need to protect detained children and young people from reprisals is particularly important, given their many vulnerabilities. ⁶⁴ In preparation for the visit, OICS delivered information sessions to Bimberi staff on the prohibition of reprisals against both staff and detained children and young people, and distributed the OPCAT factsheet that addresses the prohibition on ‘ordering or allowing any sanction against a person or organisation for having communicated to the NPM any information, whether true or false’. ⁶⁵ A challenge for OICS was implementing an effective strategy for monitoring any potential reprisals. While the OICS team conducted a follow-up visit to Bimberi to share the report’s findings and recommendations with the children and young people, there was no opportunity to speak confidentially with them (and to safely enquire about any reprisals). As such, OICS opted to rely on other independent bodies that regularly visit the Centre and/or receive complaints and other correspondence from the children and young people detained at Bimberi (such as the ACT Public Advocate and Bimberi Official Visitors), to inquire about and be alert to possible reprisals resulting from OICS’ visit and report.

Concluding remarks

As co-authors, our objective has been to share OICS’ learnings from its pilot NPM visit with other members of the Australian NPM, Australian civil society (including researchers and academics) and NPMs in other ratifying States. While ultimate responsibility for conducting detention monitoring visits rests with the NPM, civil society plays a crucial role in successfully realising the potential of the OPCAT in Australia. ⁶⁶ Civil society may make myriad contributions to NPM work, including participating in the detention visits, providing information about conditions and treatment in detention, as well as guidance and feedback on methodology or expectations/standards, and monitoring for reprisals against detained children and young people, or following up implementation of NPM recommendations.

This article describes an example of strategic decision-making, including escalating urgent issues which, in this case, secured timely positive outcomes for detained children and young people. It notes different ways to raise awareness of OPCAT and NPM functions with detaining authorities, including delivering training and factsheets. It describes the development of policies and procedures to facilitate a child- and young person-centred focus. The article also discusses the challenges that arose – some, such as conducting a partially announced visit for the first time, were addressed by OICS prior to the visit, while others were addressed after the conclusion of the visit, such as the ACT NPM not having a legislative mandate. Other challenges are ongoing, including effective follow up on the implementation of recommendations and monitoring for reprisals.

As part of a multi-body entity, Australian NPM members can benefit from each other’s expertise and lessons learned as they continuously improve how they exercise their OPCAT mandate. However, the NPM members’ limited funding significantly curtails the realisation of OPCAT’s torture prevention objective in Australia, as does the fact that three of the largest jurisdictions (NSW, Victoria and Queensland) have yet to nominate their NPM bodies. Once the Australian NPM has coverage across the entire country, and has secured adequate funding and the requisite powers, privileges and immunities to properly exercise its mandate, NPM members will be better placed to share learnings with each other and civil society, and to strengthen cross-jurisdictional collaboration in detention monitoring. In the interim, OICS, as a member of the Australian NPM, hopes that its pilot NPM visit can assist other NPM members who are (or will be) exercising their own crucial torture prevention mandate across Australia.