Children shackled in a barbaric dungeon in Banksia Hill, spit hooded in adult prisons in Victoria, caged in solitary confinement in Don Dale and human rights laws overridden to allow for children to be locked away in police watch houses in Queensland. These are a handful of headlines that paint a harrowing picture of the human rights abuses that are allowed to thrive in the darkness behind prison walls.
Yet governments across Australia continue to pipeline children into prisons at alarming rates, and Victoria, New South Wales and Queensland continue to shirk their responsibility to enact bare minimum safeguards to prevent torture in places of detention.
Due to a toxic combination of the ongoing impacts of colonisation, systemic racism and discriminatory policing – which governments have repeatedly failed to reckon with – Aboriginal and Torres Strait Islander children are over-represented in, and disproportionately harmed by, youth prisons.
The spotlight was shone on the callous disregard that federal and state governments have for the rights of people behind bars last year, when the United Nations Subcommittee on the Prevention of Torture (SPT) released its report on its first visit to Australia in October 2022.
The SPT’s visit was terminated after the torture prevention body was blocked from accessing police cells and prisons in New South Wales and mental health facilities in Queensland. Since it started its work 17 years ago, the UN body has made over 80 visits to more than 60 countries. Terminating a visit has only happened on one other occasion.
The SPT is empowered to visit Australia by virtue of the Optional Protocol to Convention Against Torture (OPCAT), which the Australian Government voluntarily ratified in 2017. Focused on torture prevention, OPCAT provides a framework for stamping out cruel and degrading treatment by requiring governments to designate independent bodies to undertake inspections of places of detention and to facilitate an international system of visits by experts, being the SPT.
The SPT experts were scathing in their critique of their first visit to Australia and the “discourteous, and in some cases hostile, reception from a number of government authorities and officials in places of deprivation of liberty” and noted that such a regrettable reception “raises concerns (as it is assumed to be reflective) of how persons deprived of liberty are treated.”
The report added that the independent SPT “experienced persistent negative media coverage, including pernicious remarks from government officials in certain regions, amounting to what the [SPT] would qualify as a smear campaign.”
At Banksia Hill in Western Australia, the SPT observed cells where children were left alone for up to 23 hours per day with mattresses on the floor, and no running water or televisions. They also inspected Don Dale in the Northern Territory, which still operates out of a defunct maximum-security prison despite the Royal Commission into the Detention of Children in the Northern Territory recommending – and the NT Government agreeing – that it should be shut down seven years ago.
The dark, secret walls of prisons create an environment where mistreatment is rife. Arbitrary decision making and wide discretion is afforded to prison staff, in addition to the significant power imbalance between prison staff and detained people, can result in basic needs (like time outside, and access to basic necessities like bedding and underwear) being withheld as punishment. This is compounded by people being at risk of reprisal if they lodge complaints about staff behaviour and abuse of power.
Yet children continue to be funnelled into prisons at alarming rates. The torture prevention body drew particular attention to the ‘extraordinary’ number of people deprived of their liberty and locked away in pre-trial detention. Recent data confirms that a staggering 77 per cent of children are unsentenced and languishing behind bars for behaviour that a court has not even found them guilty of. This rise in the number of children detained on remand in pre-trial detention is largely attributed to the introduction of reverse onus bail provisions that flip the usual process for granting bail on its head. Children should never be subject to reverse onus bail provisions that too often make time behind bars the default setting. Instead, years of misguided ‘tough on crime’ politics across the country have got us to a point where we now have criminal legal systems which turbo-charge injustice.
Review after review has called for change, and the SPT’s report echoes many of the calls that have been made by Aboriginal and Torres Strait Islander, legal and human rights organisations for years. It also reiterates many of the recommendations made by the United Nations Committee Against Torture during their last review of Australia in 2022. Some key recommendations made by the SPT in their report include raising the minimum age of criminal responsibility to at least 14 years old, ensuring that detention of people awaiting trial is the exception rather than the rule, and ending cruel and degrading prison practices including the use of spit hoods across the board, routine strip-searching of people in prison and solitary confinement on children.
The SPT also recommended that Australian governments implement and properly resource OPCAT. Last month, 20 January 2024 marked one year since the Australian Government missed the deadline to meet its obligations pursuant to OPCAT. While most states and territories have taken some steps to implement the anti-torture protocol, Victoria, New South Wales and Queensland have missed multiple deadlines and refuse to implement the bare minimum safeguards to protect against mistreatment in places where people are deprived of their liberty. The ongoing non-compliance with OPCAT puts Australia at risk of being ‘blacklisted’ by the United Nations, which would mark yet another blight on Australia’s international human rights track-record.
The only thing more horrifying than the abuse of children in prisons is for governments to do nothing meaningful about it. Rather than commit to act on these recommendations, the Australian Government’s response to the SPT’s report fails to grapple with the country’s mass imprisonment crisis and the harm that it is causing to the children locked away in their ‘care’.
Pipelining children into prisons does not make communities safer – it only serves to undermine it and destroy children’s lives in the process. While Australian governments acting on the SPT’s recommendations would end some of the cruellest prison practices, there will always be harm inherent in locking children away behind bars in youth prisons.
Instead of condemning future generations of children to this, governments must stop propping up systems of brutality and instead design a future without youth prisons. This starts by ceasing endless spending on prisons, and building up the much-needed health, education and housing services that will allow every child to grow up supported by their families in their communities.
