2022-12-01
Thursday 1 December 2022
The Greens have given notice of a Bill that would close the notorious Don Dale Youth Detention Centre in Darwin.
Approximately 38 children are currently imprisoned in Don Dale, nearly all First Nations, despite a 2016 Royal Commission recommending that Don Dale be closed following revelations of systemic abuse, deprivation and punishment.
Every day that Don Dale stays open Australia is failing to meet its international legal obligations, as the Northern Territory, along with every state, continues to imprison children as young as 10 in institutions that systematically abuse their rights.
The Federal Parliament is empowered and obliged to act on the rights of the child and human rights under longstanding international treaties. This obliges the parliament to urgently step up to protect children by supporting the Greens Bill to close Don Dale.
Lines attributable to Senator Lidia Thorpe:
“We know that Don Dale is filled with predominantly Blak babies, some of them still have baby teeth. Their brains are still developing. Traumatising these kids at such a young age will affect them for the rest of their lives. The continued abuse of our children inside Don Dale is an act of genocide.”
“Despite evidence of torture, despite a national outcry, despite a Royal Commission calling it out, Don Dale remains open. This is a shame on all levels of Government that enable the abuse to continue to this day.
“This doesn’t just hurt Blak kids, it hurts every family, friend and community member who cares about them. We need to close Don Dale Now!”
Lines attributable to Senator David Shoebridge:
“Every child deserves a second chance and to be supported to grow up safe and strong with family and community, but right now Australia is condemning yet another generation of First Nations children to lives scarred by the trauma of institutional abuse.
“The Federal government can’t turn away while the States and Territories lock up children and abuse them, the Albanese Labor government can and must change the law to keep children safe.
“Knowing what we know, failure to shut Don Dale is a breach of Australia’s international obligations to respect the rights of children and protect them from harm.
“With the NT government refusing for 6 years to implement the Royal Commission’s recommendation, there is now an urgent need for Federal action to keep children safe by permanently closing this inhumane and abusive facility.
“Continuing to do nothing in the face of these systemic failures, including evidence of torture and abuse of children, makes the Federal government complicit.
“Child prisons are responsible for the continuation of the Stolen Generations and ongoing trauma for First Nations people, they have no place in a genuine justice system,” Senator Shoebridge said.
Background:
Australia is failing to meet its obligations under a range of international treaties, as the states and territories continue to imprison children in institutions that systematically abuse their rights. Responsibility for implementing these Conventions continues to rest with the Commonwealth.
A 2016 Royal Commission found that the Don Dale Youth Detention Centre was “not fit for accommodating, let alone rehabilitating, children and young people” due to its “severe, prison-like and unhygienic conditions”. The Commission recommended that Don Dale be closed following revelations of abuse, deprivation and punishment, including children being shackled to chairs and tear-gassed.
While the NT government has announced plans to raise the age of criminal responsibility, this would still see 12 year olds in prison.
The Federal legal mechanism for the national protection of children is the External Affairs power, which should be used to implement international obligations by making it unlawful to imprison children in the Don Dale Youth Detention Centre.
Almost all of the children imprisoned in Northern Territory detention centres during September 2022 were Aboriginal, according to data released by the Office of the Children Commissioner.
As at 21 November 2022, the average daily number of children in Don Dale is 38; the facility reportedly has 56 beds for both male and female detainees (p. 13).
Further detail:
Australia is a signatory to the following international treaties (among others):
* International Covenant on Civil and Political Rights (ICCPR)
* International Covenant on Economic, Social and Cultural Rights (ICESCR)
* Convention against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment, and (CAT)
* Convention on the Rights of the Child (CRC).
Each of these treaties prescribes rights that apply to children in general, and children held in detention more specifically. As a signatory, Australia is positively obliged to respect and protect those prescribed rights, including Article 37 of the CRC, which provides that "every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person."
External affairs power:
The Federal Government has the power to legislate with respect to matters relating to treaties such as the CAT. This can be achieved through the external affairs power of the Australian Constitution (section 51(xxix)), which provides:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-
(xxix) External affairs
Section 51(xxix) supports the making of laws with respect to matters physically external to Australia and laws affecting Australia's relations with other states. According to Rothwell, this extends to any law that:
(1) Is with respect to a matter external to Australia.
(2) Is based on an international treaty to which Australia is a party.
(3) Is with respect to a matter the subject of international concern.
(4) Is with respect to a matter which Australia is under an international obligation to regulate.
(5) Is one which is generally regulated and subject to international law under either customary international law or under general principles of international law.
(6) Has been subject to recommendations by international bodies, agencies or organisations.
(7) Relates to matters which deal with Australia's relations with other states.