From 1989 until now: Australia’s track record on children’s rights in detention under international law

1989 marked a historic shift in the world’s commitment to children’s rights, when the international community decided to adopt the United Nations Convention on the Rights of the Child (‘CRC’). This convention, which has become the most ratified UN Convention in the world, signalled a worldwide recognition of the importance of protecting children from violence and exploitation. The underlying principle of the CRC was that the best interests of the child would be the primary consideration in all policies and actions involving children, and this principle remains the standard against which countries must act with regards to young people.

The CRC has resulted in significant strides in relation to children’s rights and dignity in the world, but there remain fundamental issues that persist and continue to threaten the rights of children around the world. Unfortunately, Australia is not immune to these issues. Despite Australia ratifying the CRC almost immediately, at the end of 1990, Australian children still endure considerable constraints on their rights and dignity as children.

One of the most significant threats towards children’s rights is Australia’s treatment of youth in detention. Aside from the fact that Australia continues to have one of the lowest ages of criminal responsibility in the Western world at 10 years of age, far from the UN recommendation of 14 years, Australian state and federal governments have yet to prohibit the use of cruel and inhumane solitary confinement and isolation practices against juvenile offenders. The CRC mandates that detention is to be used against children as a last resort, and that children be protected from cruel treatment. Australia’s continued use of solitary confinement undoubtedly contravenes these principles.

In 2009, Australia signed, but didn’t ratify, the UN Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). This human rights convention aimed to improve the conditions of all places of detention and set out obligations to prevent torture and mistreatment. These obligations were pointed out by human rights organisations and other non-government organisations as directly applicable to youth justice efforts in Australia. During this time, the UN also joined these voices in condemning the use of solitary confinement against children as directly violating OPCAT obligations. Further, in 2015, the UN adopted the Mandela Rules which again declared solitary confinement as a cruel and punitive practice, and explicitly banned its use against children.

However, despite the seemingly large strides of the international community, Australia’s position on youth detention practices remained stagnant. Just a year after the adoption of the UN Mandela Rules, the infamous 4 Corners documentary in 2016 exposed the Don Dale youth detention scandal, where evidence emerged of children being tortured and locked in solitary confinement for days on end. Due to intense national media and social outrage, a Royal Commission into the Protection and Detention of Children in the NT was announced just 12 hours after the documentary aired. The Royal Commission in 2017 found that solitary confinement was being used unlawfully and was a routine practice, and recommended an explicit full legislative ban. Around this time, the ‘Same Four Walls’ report in Victoria revealed systemic isolation practices being regularly utilised in Victorian juvenile detention centres, often due to staff shortages.

It was only in 2017 that Australia finally ratified the OPCAT, after signing it in 2009. Under the obligations of this treaty, Australia was required to establish independent oversight mechanisms to monitor detention centres, including youth facilities. Australia proceeded to delay its obligation to do so by four years, after which some mechanisms were established by several jurisdictions, including the Commonwealth. However, at the time of writing, the New South Wales, Victorian, and Queensland governments have still yet to coordinate mechanisms within their jurisdictions. This means that Australia’s approach to youth detention oversight and monitoring of harmful practices remains fragmented and incomplete, and drastically hinders the effectiveness of the existing mechanisms.

In 2018, Western Australia releases yet another report into inhuman solitary confinement practices against young people in detention, where two teenagers were notably held in isolation for over 250 days. The Banksia Hill detention centre was condemned by Amnesty International for breaching Australia international obligations. This report raised further concerns over damaging youth detention practices and particularly the use of cruel and punitive measures against child inmates. The following year, the UN Committee on the Rights of the Child reviewed Australia and found that Articles 19 and 37 of the CRC were being violated by solitary confinement practices, calling for immediate national action to eliminate them from use.

Despite all of this, Australia’s track record continues along the same path. 2023 produced several reports across the country of the inherent dangers of solitary confinement, particularly its links to mental health deterioration, increased self-harm incidents, and youth deaths in custody, as well as its frequent weaponisation against First Nations children. These reports of mistreatment and poor conditions continued into 2024, particularly the exposure of the north Queensland Cleveland youth detention centre. Finally, in 2024, Australia and New Zealand child commissioners issued a joint statement demanding an end to all practices of solitary confinement and isolation except as a last resort, in line with international law obligations.

It is clear that Australia has ignored its duty and responsibility towards children in detention, and is in direct contravention with its international obligations. The No Child in Solitary campaign strongly encourages the Australian government to rectify this mistake and prioritise the protection of children in youth detention.