By Katelin Chambers
Australia has struggled to adopt a consistent framework to implement the Optional Protocol to the Convention Against Torture (OPCAT) in youth detention following its ratification in late 2017, leaving a patchwork of initiatives that vary between states.
OPCAT was intended to protect the rights of people held in detention by establishing independent inspections of all detention centres. By establishing a consistent inspection framework, it was hoped that torture and degrading treatment or punishment of detainees would be prevented. However several Australian detention centres have faced criticism for their treatment of detainees since ratification.
The best known is the Don Dale Youth Detention Centre in the Northern Territory. The Centre is a maximum-security facility which currently houses detainees aged between ten and 17 years for a range of serious offences. The facility itself has been criticised as unfit for children, having originally been a dedicated adult correctional centre. Don Dale entered the media spotlight in mid-2016 when Australia’s national public broadcaster, the ABC, aired an episode of its investigative journalism program, Four Corners, entitled ‘Australia’s Shame’. It showed young detainees being strip searched, assaulted and held in isolation for extended periods of time.
The centre has a record of incidents dating back to the early 2000s including deaths in custody and the ongoing use of tear gas. As recently as April this year, detainees were reported to have caused an aggressive disturbance when they occupied the roof of the facility for several hours.
Royal Commission highlights the issues
In 2016, the Royal Commission into the Protection and Detention of Children in the Northern Territory was established. It made more than 200 recommendations in its 2017 report, including the closure of the Don Dale facility. Many of these recommendations are yet to be formally implemented.
The wider treatment of detainees in youth detention centres across Australia has also become a focus in academia, particularly in light of Australia’s ratification of OPCAT. The National Children’s Commissioner has noted that no Australian jurisdiction has met the requisite international standards, including OPCAT. Similarly, Professor Bronwyn Naylor of RMIT University has reported that only New South Wales, Tasmania and the ACT have set up prison inspectorates which come close to complying with OPCAT.
One step forward, two steps backwards
Professor Naylor has noted that the Northern Territory in particular is working to meet its OPCAT obligations by developing a dedicated oversight body for children and youth in detention that would also manage the implementation of the existing Children Commissioner’s Act. Northern Territory Families currently has responsibility for administering all youth justice initiatives. However, in March, the Northern Territory passed several amendments to laws regarding the use of force, restraints and isolation on children in centres including Don Dale. The amendments were intended to give youth detention staff a clearer framework under which to use their powers, but have been criticised from several corners.
Of particular concern are the changes to the “use of force generally” provision in section 10 of the Youth Justice Act 2005 (NT). The word “reasonably” was inserted with regard to the use of force on a youth if “all other reasonably practicable measures to resolve the situation ‚Ķ have failed.” The wide discretion this gives detention centre staff does not appear to address the use of excessive force that the Royal Commission had in fact attempted to eliminate. Ruth Barson of the Human Rights Law Centre stated the reforms were unnecessary and diluted existing protections afforded to detainees.
Youth detention in 2019 and beyond
Professor Naylor and Stan Winford are among many academics to provide recommendations on the practical implementation of OPCAT in Australia. Naylor and Winford noted in the Australian Journal of Human Rights that adopting a rehabilitative stance could reduce the risk of “cruel, inhuman and degrading treatment” such as that seen in the Don Dale facility.
Emeritus Professor of Law and Criminology at the University of Western Australia and former Inspector of Custodial Services for Western Australia, Richard Harding, has suggested that while Australia has the potential to improve its detention standards and accountability protocols, it’s unlikely to become an example of best practice if it continues to let states develop their own legislative frameworks for monitoring and inspecting detention centres. Rather, Harding calls for a greater commitment from the Commonwealth Government to administer standardised, nation-wide inspectorate legislation for youth detention centres.
In the case of OPCAT, it appears that legislation alone will not be able to resolve a history of misaligned policy in youth detention centres. Legislation can only act to support good practice. Greater consideration of the Commonwealth’s potential to take responsibility for overseeing the implementation of OPCAT and inspectorate legislation is necessary if a uniform approach to the inspection and monitoring of youth detention centres is to come to fruition.
The Australian Journal of Human Rights OPCAT special issue is now available. The issue features key commentary on issues surrounding Australia’s implementation of the Protocol to date, and recommendations for improvements.
Katelin Chambers is a media graduate who recently completed a Bachelor of Laws at UNSW Sydney. She was the Student Associate Editor for the Australian Journal of Human Rights for Term 1, 2019.