Human rights oversight of correctional institutions in Australia
| Author | Bronwyn Naylor |
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
| DOI | http://doi.org/10.1177/1477370820958238 |
https://doi.org/10.1177/1477370820958238
European Journal of Criminology
2021, Vol. 18(1) 52 –73
© The Author(s) 2020
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DOI: 10.1177/1477370820958238
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Human rights oversight of
correctional institutions in
Australia
Bronwyn Naylor
RMIT University, Australia
Abstract
Australia has recently ratified the Optional Protocol to the Convention against Torture (OPCAT)
in order to improve the oversight of Australia’s prisons and detention centres, following major
human rights violations exposed in them in 2016. Ratification offers an opportunity to appraise
the effectiveness of monitoring and oversight in Australia, and the limitations of human rights
protections in the Australian context. Australia’s prisons and youth detention centres are to be
monitored by a network of independent inspecting bodies, which are likely to include existing
Ombudsman and human rights bodies. The Office of the Commonwealth Ombudsman has the task
of coordinating the new inspection bodies. This article reviews the existing protections of rights
in Australia and considers the implications of ratification of OPCAT. The article concludes that
implementation will require consideration of the effectiveness of the current bodies monitoring
prisons and youth detention and their capacity to take on the role of preventing human rights
violations, including their independence from government, as the states and territories decide
on the establishment of their National Preventive Mechanisms. Implementation will also require
an understanding of Australia’s historical ambivalence towards international human rights
engagement and the impact of its federated system.
Keywords
Prisons, colonization, human rights, monitoring, OPCAT, federated states
Introduction
In June 2016 Australians saw a shocking television documentary about ill-treatment of
young people, all of them Aboriginal children and young people, in the Don Dale youth
detention centre in the Northern Territory (Ferguson, 2016). It included images of vio-
lence by groups of guards against children, and the use of tear gas and spit hoods, and it
Corresponding author:
Bronwyn Naylor, Graduate School of Business and Law, RMIT University, GPO Box 2476V, Melbourne,
Victoria 3000, Australia.
Email: bronwyn.naylor@rmit.edu.au
958238EUC0010.1177/1477370820958238European Journal of CriminologyNaylor
research-article2020
Special Issue: Human rights, prisons and penal policies
Naylor 53
led the national government to swiftly announce a Royal Commission into the Northern
Territory youth justice system. It also triggered inquiries and revelations of similar
abuses in youth justice facilities in other states (Grant et al., 2017).
Around the same time, accommodation pressures in the main youth justice centre at
Parkville, in the State of Victoria, came to a head with riots leading to extensive damage
to accommodation in 2016. The Victorian Corrections Department controversially
moved the young detainees temporarily to a section of a high security adult prison,
Barwon Prison (Davey, 2017). Successful human rights litigation brought by two non-
governmental organizations (NGOs) led to court orders to remove the children from the
adult prison. Further scandals and public inquiries in other youth justice facilities, in
aged care facilities and in mental health and disability settings also highlighted the
extreme vulnerability of people held in closed environments to violations of their rights
(Rizmal, 2019; Thomas, 2019). These events provide the context for the heightened
attention to human rights and monitoring in detention, which is the subject of this
article.
The article examines the effectiveness of current rights protections in Australia for
people held in places of detention in the criminal justice system, and the decision in 2017
to engage with international human rights in the form of the Optional Protocol to the
Convention against Torture (OPCAT) and its external monitoring regime for rights pro-
tections. An assessment of these developments must take account of Australia’s colonial
origins, its federated system of government, and its historical resistance to international
human rights. These factors are outlined first. The article then analyses existing domestic
rights protections and monitoring schemes, and how an OPCAT monitoring regime
might be established alongside this framework.
Australia as colony and federated state
In the 18th century, colonial bases were established in Australia for the overflow of peo-
ple convicted in the United Kingdom of criminal offences. The first convict ships arrived
in 1787; transportation declined from the 1830s and the last convict ship landed in 1868
(Hughes, 2003). The establishment of penal settlements in various locations in Australia
led to the forced displacement and dislocation of Australia’s Aboriginal and Torres Strait
Islander (First Nations) peoples, whose occupation of the country is now recognized as
having been continuous for at least the past 60,000 years (Pascoe, 2014). The impact of
this colonial genocide is still being felt in the high levels of disadvantage, ill-health and
criminal justice engagement experienced by people from Aboriginal and Torres Strait
Islander communities (ALRC, 2017; UNAA, 2017). This is a particularly significant
theme in Australian penal incarceration.
The colonies adopted the English legal system and form of government; Australia has
largely retained the English common law system (as distinct from the civil law system
applying in most of Europe), with its focus on parliamentary supremacy. This history is
relevant to Australia’s evolving relationship with international human rights.
Australia became a federation in 1901, with nine jurisdictions: the federal (or
‘Commonwealth’), six states (Victoria, New South Wales, South Australia, Queensland,
Tasmania and Western Australia), and two territories (the Northern Territory, NT, and the
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