The Practice of Solitary Confinement of Children in Juvenile Detention in Victoria: A Human-Rights Based Argument for Prohibition
DOI:
https://doi.org/10.69970/gjlhd.v8i2.1193Abstract
In 2017, Victoria’s practices surrounding the solitary confinement of detained children were found by the Supreme Court to have breached the Charter of Human Rights and Responsibilities Act 2006 (Vic) – including the right to be treated with ‘humanity and with respect for the inherent dignity of the human person’ when deprived of liberty. This was in the context of children aged between 15 and 18 years of age being held in a precinct of the Barwon maximum security adult prison from November 2016. This article contextualises the Supreme Court’s findings by outlining the problematic use of solitary confinement of children in juvenile detention in Victoria in the years preceding the judgment (since 2010) and following. Numerous investigative reports have raised concerns about solitary confinement, which is extremely detrimental to children. Through the findings of investigative reports, this article demonstrates that the use of solitary confinement in Victoria violates Australia’s international human rights law obligations. It argues that, consequently, the practice should be prohibited – consistent with the 2015 recommendation by the United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
References
REFERENCE LIST
A Articles/Books/Reports
Australian Journal of Human Rights (2019) 25(1) (Special Issue: ‘Preventing Abuse in Detention: Effective Independent Monitoring within the OPCAT framework’)
Bessant, Judith and Rob Watts, ‘Child Prisoners, Human Rights, and Human Rights Activism: Beyond ‘Emergency’ and ‘Exceptionality’—An Australian Case Study’ in Gabriel Blouin-Genest, Marie-Christine Doran and Sylvie Paquerot (eds), Human Rights as Battlefields: Changing Practices and Contestations Human Rights Interventions (Springer Nature, 1st ed, 2019)
Boughey, Janina, ‘The Victorian Charter: A Slow Start or Fundamentally Flawed?’ in Matthew Groves, Janina Boughey and Dan Meagher (eds), The Legal Protection of Rights in Australia (Bloomsbury Publishing, 2019)
Clark, Andrew B, ‘Juvenile Solitary Confinement as a Form of Child Abuse’ (2017) 45 The Journal of the American Academy of Psychiatry and the Law 350
Commission for Children and Young People, The same four walls: Inquiry into the use of isolation, separation and lockdowns in Victoria youth justice system (Report, 2017)
Cramp, Taylah and Anita Mackay, ‘Protecting Victims and Vulnerable Witnesses Participating in Royal Commissions: Lessons from the 2016–2017 Royal Commission into the Protection and Detention of Children in the Northern Territory’ (2019) 29 Journal of Judicial Administration 3
Eastman, Kate, ‘Australia’s Engagement with the United Nations’ in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook Co, 2013)
Fitz-Gibbon, Kate, ‘The Treatment of Australian Children Detention: A Human Rights Law Analysis of Media Coverage in the Wake of Abuses at the Don Dale Detention Centre’ (2018) 41(1) UNSW Law Journal 100
Glass, Deborah, ‘Common Sense and Clean Hands: An Ombudsman’s View of Justice’ (2019) 43(1) Melbourne University Law Review 369
Grant, Elizabeth, Rohan Lulham and Bronwyn Naylor, ‘The Use of Segregation for Children in Australian Youth Detention Systems: An Argument for Prohibition’ (2017) 3 Advancing Corrections 117
Hillgenberg, Harmut, ‘A Fresh Look at Soft Law’ (1999) 10(3) European Journal of International Law 499
Jesuit Social Services, All Alone: Young Adults in the Victorian Justice System (Report, 2018)
Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Youth Justice Centres in Victoria (2018)
Lutz, Jennifer, Jason Szanyi and Mark Soler, ‘Stop Solitary for Kids: The Path Forward to End Solitary Confinement of Children’ in American University Washington College of Law, Protecting Children Against Torture in Detention: Global Solutions for a Global Problem (Report, 2017)
Mackay, Anita, ‘Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR) and Australian Prisons’ (2017) 23(3) Australian Journal of Human Rights 368
Mackay, Anita ‘The Relevance of the United Nations Mandela Rules for Australian Prisons’ (2017) 42(4) Alternative Law Journal 279
Méndez, Juan Ernesto, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/HRC/28/68 (5 March 2015)
Merlo Consulting, Isolations review (Final Report, 2017)
Nowak, Mandred, ‘Global Perspectives on Solitary Confinement – Practices and Reforms Worldwide’ in Jules Lobel and Peter Scharff Smith (eds), Solitary Confinement. Effects, Practices, and Pathways Toward Reform (Oxford University Press, 2020)
Nunez, Lilfen and Anna Copeland, ‘Solitary Confinement within Juvenile Detention Centres in Western Australia’ (2017) International Journal of Children’s Rights 716
O’Leary, Jodie, ‘Protecting Children from Harm in Juvenile Detention’ (2016) 41(4) Alternative Law Journal 239
Shalev, Sharon, ‘Solitary confinement as a prison health issue’ in Stefan Enggist, Lars Møller, Gauden Galea and Caroline Udesen (eds), Prisons and Health (WHO Regional Office for Europe, 2014)
Victorian Ombudsman, Investigation into children transferred from the youth justice system to the adult prison system (Report, 2013)
Victorian Ombudsman, OPCAT in Victoria, A thematic investigation of practices related to solitary confinement of children and young people (Final Report, 2019)
Victorian Ombudsman, Report on Youth Justice Facilities at the Grevillea Unit of Barwon Prison, Malmsbury and Parkville (2017)
B Cases
Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (2016) 51 VR 473
Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Others [No 2] (2017) 52 VR 441
Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur (2016) 51 VR 597
C Legislation
Children, Youth and Families Act 2005 (Vic)
Children, Youth and Families Regulations 2017 (Vic)
Corrections Act 1986 (Vic)
Crimes and Criminal Procedure, 18 USC § 5043 (USA)
D Treaties
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 22 August 1990 [1991], ATS 4 (entered into force 16 January 1991)
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Optional Protocol to the Convention against Torture, opened for signature 18 December 2002, UN Doc A/RES/57/199 (entered into force 22 June 2006)
United Nations Rules for the Protection of Juveniles Deprived of their Liberty, GA Res 45/113, 45th sess, 68th plen mtg, UN Doc A/RES/45/113, (14 December 1990)
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), GA Res 70/175, 70th sess, 80th plen mtg, Agenda Item 106, UN Doc A/RES/70/175 (17 December 2015)
E Other
Australian Children’s Commissioners and Guardians, ‘Statement on Conditions and Treatment in Youth Justice Detention’ (Statement, November 2017)
Australian Institute of Health and Welfare, Youth Justice in Australia (Report, 2019)
Doran, Matt and James Dunlevie, ‘Four Corners: PM Turnbull to set up royal commission into mistreatment of children in detention’, ABC News (online, 26 July 2016) <https://www.abc.net.au/news/2016-07-26/turnbull-calls-for-royal-commission-into-don-dale/7660164>
Greens Victoria, ‘Royal Commission into youth detention should be national: Greens’ (Media Release, 27 July 2016) <https://greens.org.au/vic/news/media-release/royal-commission-youth-detention-should-be-national-greens>
Human Rights Law Centre, Submission No 38 to Legal and Social Issues Committee, Parliament of Victoria, Inquiry into youth justice centres in Victoria (10 March 2017)
Hunter, Fergus, ‘Malcolm Turnbull rejects calls for royal commission into juvenile justice system to go national’, Sydney Morning Herald (online, 27 July 2016) <https://www.smh.com.au/politics/federal/malcolm-turnbull-rejects-calls-for-royal-commission-into-juvenile-justice-system-to-go-national-20160727-gqemi4.html>
Minister for Corrections and Youth Justice (Vic) ‘Building A Safer And More Secure Youth Justice System’ (Media Release, 27 September 2019) <https://www.premier.vic.gov.au/wp-content/uploads/2019/09/190927-Building-A-Safer-And-More-Secure-Youth-Justice-System.pdf>
National Conference of State Legislatures, States that Limit or Prohibit Juvenile Shackling and Solitary Confinement (29 January2020) <https://www.ncsl.org/research/civil-and-criminal-justice/states-that-limit-or-prohibit-juvenile-shackling-and-solitary-confinement635572628.aspx#1>
Obama, Barack, ‘Barack Obama: Why we must rethink solitary confinement’, Washington Post (online, 25 January 2016) <https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html>
United Nations Committee on the Rights of the Child, General Comment No. 10 (2007) Children’s rights in juvenile justice, 44th sess, CRC/C/GC/10 (25 April 2007)
United Nations Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5-6 (30 September 2019)
United Nations Human Rights Committee, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 44th sess, UN Doc A/44/40 (10 March 1992)
United Nations Human Rights Committee, Views: Communication No 1184/2003, 86th sess, UN Doc CCPR/C/86/D/1184/2003 (17 March 2006) (‘Brough v Australia’)
Downloads
Published
Issue
Section
License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
