Five ways Australian governments can stop the abuse of children in detention

The horrifying images made two things clear: it’s utterly inexcusable that children ever suffer like this and it cannot be allowed to continue. So what needs to change?  

The report was called ‘Australia’s Shame’, and rightly so.

We can blame the guards at Don Dale Detention Centre for their abhorrent treatment of young children – and they should be held fully accountable under the law – but Four Corners confronted Australia with a bigger and more troubling question: how did we as a nation let this happen to children, in 2016?

Ultimately, responsibility lies with our governments. Prolonged solitary confinement and use of force against children may amount to torture by the government responsible for their care. And as a signatory to the UN Convention on the Rights of the Child, Australia has plainly failed in its promise that “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person."

The Prime Minister’s announcement of a Royal Commission into the Northern Territory’s juvenile detention system is a welcome first step towards greater transparency but we have to go further. Here’s why:

• We know from UNICEF’s global experience in juvenile justice that institutional environments are definitively unsafe for children. We cannot continue to lock up so many children and expect them be safe, and the problem doesn’t end at the NT border: children are at risk wherever they are institutionalised.
• This problem overwhelmingly affects Aboriginal and Torres Strait Islander children, who are a staggering 26 times more likely than non-Indigenous children to be incarcerated. Nationally, more than half of children in detention are Indigenous and in the Northern Territory, it’s an astounding 97%. Aboriginal leaders say this level of incarceration threatens the very fabric of their community and identity. We need to acknowledge this uncomfortable fact and change public policy to address the injustice.

UNICEF Australia is asking State, Territory and Federal Governments to take five critical actions.

1. Finish the good work of the previous Royal Commission

We’ve been here before. In 1991, the Royal Commission into Aboriginal Deaths in Custody was established to address the over-representation of Indigenous people in the criminal justice system. The Commission made 339 recommendations which largely tackled the underlying reasons why people come into contact with the law in the first place. Importantly for children and young people, we need to ensure that they are not being incarcerated for minor crimes or offences, where the same conduct would not be considered a crime if done by an adult. 

Yet, in the 25 years since this landmark inquiry, the rate of Aboriginal and Torres Strait Islander incarceration hasn’t dropped – it has consistently increased to new crisis points. More than ever before, it’s time for governments to fully implement the Commission’s advice.

Governments have made some positive reforms since then, although progress has often been matched by other regressive moves like criminalising minor offences and removing judges’ discretion with policies of mandatory detention. We can’t step forward with one foot and back with the other.

Now, as the Federal and Territory Governments establish a new Royal Commission, they should do so with every intention of putting its advice into practice.

Gillian Triggs discusses the detention of children on ABC's Q&A.

2. Agree to oversight and monitoring by the UN 

Australia is already bound by various international human rights treaties to ensure that torture doesn’t occur, although we need comprehensive domestic laws to give effect to these international treaties.

Also, we’re yet to ratify something critical. It’s called the Optional Protection to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and it would allow United Nations officials to conduct inspections of Australia’s youth detention centres. It would also require us to set up a National Preventative Mechanism which would play a vital role in stopping the kind of situations we saw on Four Corners from ever occuring.

If Australia wants better oversight and an ongoing system of accountability – if we want to ensure that children in detention are held in the safest possible conditions and treated according to international standards – we need to ratify OPCAT.

3. Tackle the root causes that drive Aboriginal and Torres Strait Islander Children into custody

If a young person experiences discrimination, exclusion and social and economic disadvantage, they’re more likely to come into conflict with the law. So to stop children ending up in detention, we need to address the education gaps, unemployment, substance misuse, neglect and family violence that increase their chances of getting into trouble.

The criminal justice system is not a solution for these social and economic issues: we need to intervene earlier in the lives of Aborginal and Torres Strait Islander children. That means proven initiatives like community care and support for children with cognitive disability or mental health issues, public health models that target behaviour in young people and empower parents, and better support networks like police mentoring for young people.

In working to realise the rights of Indigenous children, governments should listen to communities and draw on their cultural strengths in caring for their own families. Investment must heal and strengthen families and it should empower communities to determine their own ways forward.

4. Ensure detention of children is only ever used a last resort 

If common sense weren’t enough, the UN Convention on the Rights of the Child is crystal clear: “the arrest, detention or imprisonment of a child…shall be used only as a measure of last resort and for the shortest appropriate period of time.”

When children run into trouble, our first response cannot be to throw them behind bars. We need to rethink Australia’s culture of institutionalisation and give children a chance at a good life. Governments can start by:

• changing mandatory sentencing laws that limit judges’ ability to apply a fair sentence on the basis of a child’s individual circumstances;
• legislating the principle of detention as a last resort;
• providing youth specific courts; and
• making non-custodial sentences like community service and good behaviour bonds available to more children. 

5. Give children access to justice and the support they need to recover

Children at Don Dale Detention Centre deserve justice and so do children who may have experienced cruel, inhuman or degrading punishment elsewhere in Australia’s detention systems. They deserve to have their abuse fully investigated as crimes and to be given child-friendly and culturally appropriate ways to contribute to these proceedings, including to the Royal Commission.

They also deserve a chance to heal. The kind of violence we saw on Four Corners can cause long term harm to a child’s developing brain: UNICEF’s global experience shows that such abusive treatment commonly causes anxiety, depression, insomnia, psychosis, extreme paranoia and cognitive delays. The violence inflicted on these children can never be taken back but government can provide psychosocial support and counselling for as long as they need to recover.

Want to know more?

Here are just a few ways you can learn more about the issues:

• 25 years after Australia ratified the UN Convention on the Rights of the Child, UNICEF Australia joined with our partners in the Child Rights Taskforce to produce a landmark report reflecting on progress. It shows astounding gaps for children in the justice system, check out a summary blog here.
• UNICEF Australia has prepared a detailed submission to the National Children's Commissioner explaining why the Government should ratify the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
• Too many Aboriginal and Torres Strait Islander children are separated from their families, with one in five living in alternative care. Find out more in this blog.
• Take some time to hear from Indigenous organisations like SNAICC, the Secretariat of National Aboriginal and Islander Child Care, which has lots of excellent info on its website.

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