• Children mourning the loss of their friends, drowned in the Swan River during a police chase in Perth, W.A. (AAP)Source: AAP
ANALYSIS: Does Australia deliver basic human rights to all children, equally? Dr Hannah McGlade asks, what has been compromised in the pursuit of punishment.
Dr Hannah McGlade

2 Apr 2019 - 6:09 PM  UPDATED 3 Apr 2019 - 11:01 AM

It is an understatement to say that Aboriginal children are severely over-represented in the criminal justice system. The rate of incarceration of our children and youth is higher than that of Aboriginal men and women. 

This injustice is a matter of national and international concern, as evidence indicates that Aboriginal people are the most incarcerated group of people in the world, while our children bear the brunt of this human rights crisis.


What should be the age of criminal responsibility?

Aboriginal children, who should be in primary school, are being imprisoned at the tender age 10. Some have been sent into adult goal cells and watch-houses.

Sadly, we have one of the lowest ages of criminal responsibility in the world. 

Both Amnesty International Australia and the Australian Medical Association (AMA) have taken a stand on the mistreatment of Aboriginal children and called for an increase in the age of responsibility to 14 years minimum.  The AMA President, Dr Tony Bartone has stated “The criminalisation of children in Australia is a nationwide problem that disproportionately impacts Aboriginal and Torres Strait Islander children.

“Most children in prison come from backgrounds that are disadvantaged. These children often experience violence, abuse, disability, homelessness, and drug or alcohol misuse.

"Criminalising the behaviour of young and vulnerable children creates a vicious cycle of disadvantage and forces children to become entrenched in the criminal justice system.

"Children who are forced into contact with the criminal justice system at a young age are ... more likely to die an early death."

"Children who are forced into contact with the criminal justice system at a young age are also less likely to complete their education or find employment, and are more likely to die an early death.”


Education and Health in Youth Detention

Along with detention, Aboriginal children are being denied basic human rights, such as the right to an education. It has been reported, there were 28 Aboriginal children incarcerated at the W.A Banksia Hill Detention Centre in 2017-18 who did not receive an education, according to the recent Productivity Commission report on Government Services.

Research confirms, the majority of Aboriginal youth in detention, specifically at Banksia Hill, suffer from mental disabilities and may have a cognitive disability such as FAS-D; they have all experienced trauma from poverty, discrimination, homelessness and family violence, including for some, sexual abuse.

Related Reading
Nine out of ten young people in detention have mental disability, study finds
High rates of brain damage and mental impairment shock researchers assessing young people in Australian youth detention facility.

According to the W.A Coronial Inquest into the deaths of 13 Kimberley Aboriginal children ‘intergenerational trauma’ was ‘the primary common factor’. The Coroner referred to the impact of ‘life stressors’ on the children which Professor Suvendi Perera argues is more accurately described as a form of ‘slow violence’ that characterized the children’s lives.

Mistreatment and abuse of Aboriginal children in detention is increasingly being brought to light. Recently the Queensland Ombudsman has found that detained youth were held in ‘admissions rooms’ with no running water, toilet or beds for up to 10 days following riots at the Brisbane Youth Detention Centre in 2017. 

According to an ABC report quoting the Child Safety Minister, Di Farmer ‘The report shines a light on a pattern of disgraceful, unlawful and negligent behaviour by former staff, which is simply unacceptable.’ 

Related Reading
Young prisoners 'boxed in' without beds, toilets or running water
In the wake of a series of violent riots, a report by the Queensland Ombudsman examines complaints from detainees in Queensland's youth detention centres .


What happened at Banksia Hill Detention Centre, W.A?

Similar treatment was seen in West Australia where Aboriginal and Maori youth at the Banksia Hill Detention Centre were subjected to excessive periods of solitary confinement. According to Amnesty International Australia, one of the teenagers was kept in a confined isolation area for 328 days.

Solitary confinement is known to be highly damaging to children’s wellbeing and is also opposed by the AMA. It puts children at increased risk of harm including possible self-harm risk.

The treatment of the youth at Banksia Hill was examined by the W.A Office of the Independent Custodial Inspector (OICS). The report states 'we have concluded that for around ten days' two young Indigenous men 'were probably being held in conditions that constituted solitary confinement under the Mandela Rules'. This is contrary to regulations and international human rights standards. 

Related Reading
'A monster factory' WA’s only youth prison under scrutiny again
Banksia Hill Detention Centre is again being criticised for taking Aboriginal children off country as legal services call for more cultural approaches to treating youth offenders.
'He has been stripped of his dignity and self-worth’, says mother of detainee allegedly ‘tortured’ at WA’s only youth detention centre
'He doesn’t say much but his eyes are very ruined, his voice is very different, there is no confidence, there is no self-esteem,’ says the mother of one of the three detainees (one Maori, two Aboriginal) who remained in the isolation unit at Banksia Hill Juvenile Detention Centre for more than 300 days, according to Amnesty International.

What happened at Brisbane Youth Detention Centre, Qld?

The Queensland Ombudsman report into the Brisbane Youth Detention Centre follows a 2016 Independent Review of the Youth Detention, announced after allegations from staff and young people to media, along with CCTV footage depicting excessive force being used at the Cleveland Youth Detention Centre in Townsville.

The 2016 Independent Review, conducted by Ms Kathryn McMillan QC and Professor Megan Davis, looked at the practices, policies and programs of Queensland’s youth detention centres and concluded "The incidents reviewed are not sufficient to support a finding that there is systemic mistreatment of young people in Queensland youth detention centres," although the authors noted, the timeframe of the report was "very short" and didn't allow time to conduct hearings.

Since the 2016 Independent Review, the Australian government recently provided advice to the United Nations and stated that this report showed no evidence to suggest the systemic mistreatment of young people in Queensland youth detention centres.

The government’s response to the UN is not consistent with evidence from Queensland, that children as young as 10 are detained in adult watch-house cells and held in shocking conditions as found by the Ombudsman and condemned by the Queensland government.

Related Reading
Queensland Government criticised for silencing young prisoners in 'cover up' report
An independent review into Queensland youth detention centres has been unable to determine whether systemic mistreatment exists, mainly due to time constraints.


What happened Don Dale Detention Centre, N.T?

In 2016, the mistreatment of Aboriginal youth at the Don Dale Detention Centre in the Northern Territory was also the subject of international media exposure and subsequently a Royal Commission.

The UN High Commissioner for Human Rights decided this was so serious it was a matter of international human rights, stating ‘We are shocked by the video footage … from Don Dale youth detention centre in the Northern Territory in Australia, showing children as young as 10, many of whom are Aboriginal children, being held in inhumane conditions and treated cruelly … Most of the children who were held at the detention facility are deeply traumatised.’

As a result of this shocking abuse at Don Dale the UN told Australia it must sign the Optional Protocol to the Convention of Torture (OPCAT) requiring improved standards in detention facilities.

Although Australia is now a signatory to OPCAT the Northern Territory Government has announced new laws to allow increased use of force, restraints and isolation. Mr Marty Aust, the president of the Criminal Lawyers Association in Northern Territory (CLANT) described it as “a dark day for justice in the NT”.

Related Reading
NT laws to clarify when guards can use force on youth detainees
Critics say the NT government is moving away from recommendations by the youth justice royal commission.


How Australia can improve Human Rights for Children

It seems that the NT and Australian government care very little about the human rights of Aboriginal children who make up the overwhelming majority of incarcerated children and youth in NT.

Opposition leader, Bill Shorten has promised if successful at the next election, a Labor government will, within 100 days, hold a summit for Aboriginal children. The proposed national summit is a proper response and forum to the human rights abuse of Aboriginal children at the hands of the state. 

...we must increase the age of criminal responsibility to 14 years of age... 

I would argue, we must increase the age of criminal responsibility to 14 years of age and develop a national strategy to reduce Aboriginal youth incarceration, supporting diversion and culturally appropriate interventions and support.

Australia should also sign the Optional Protocol to the Convention on the Rights of the Child allowing Aboriginal children to bring complaints to the UN Committee for breaches of their rights as children. 

Australia’s compliance with the Convention on the Rights of the Child (CRC) is in question with this abusive treatment of Aboriginal children and youth by the criminal justice system.

What happened at Don Dale, Banksia Hill, the Brisbane Detention Centre and other places of detention violates Article 37 of the CRC: ‘Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.’

Aboriginal children are experiencing structural and systemic violence contrary to their human rights and we cannot and will not, stay silent in the face of such abuse.


Dr Hannah McGlade is the Senior Indigenous Research Fellow at Curtin University, Western Australia. She is the author of "Our Greatest Challenge, Aboriginal Children and Human Rights" which received the 2013 Stanner Award for excellence in Aboriginal research.  In 2016 Dr McGlade was appointed the Senior Indigenous Fellow at the United Nations OHCHR. She has led the establishment of legal support services for Aboriginal & Torres Strait  Islander victims of family violence and sexual assault in Western Australia.