Children entitled to a life where their rights are protected

Tuesday, Jul 26, 2016, 11:38 PM | Source: Pursuit

By John Tobin

Children entitled to a life where their rights are protected

The abuse of children at the Northern Territory's Don Dale Juvenile Detention Centre is not an aberration.

It provides another illustration of the appalling history of institutional child abuse In Australia. Praise for the announcement of a Royal Commission by the Prime Minister must be tempered by the reality that there is currently a Royal Commission being undertaken into Institutional Responses to Child Sexual Abuse. The irony is palpable. As this Commission was hearing the appalling stories of those who experienced abuse within institutions, the boys at Don Vale were being subjected to abuse that brought back images of Abu Ghraib.

So was the treatment of these boys torture? The Rome Statute of the International Criminal Court provides that torture is the 'intentional infliction of severe pain and suffering on a person in the custody or control of another person'.

The editorial cartoon by Warren in Sydney's Daily Telegraph on July 27.

You don't need a law degree or indeed a Royal Commission to mount a very strong case that the treatment of the six boys was intentionally inflicted and caused severe pain and suffering. And you certainly don't need a lawyer or a Royal Commission to come to the conclusion that their treatment violated a host of rights under the United Nations Convention on the Rights of the Child and countless other international instruments to which Australia is a party. The right to humane treatment in detention, the right to respect for physical and bodily integrity and the right to protection against cruel, inhuman and degrading treatment to name but a few. You do, however, need a Royal Commission to fulfil Australia's obligations under international law to undertake a full and independent investigation in circumstances where children have been subject to torture and other forms of ill treatment.

International human rights bodies have also demanded a commitment to ensure that those who are responsible for the abuse of children are prosecuted and punished for their actions and that the victims of such abuse receive appropriate reparation.

Importantly, responsibility for the abuse must not be confined to the officers who laughed and joked as they abused the boys. It must extend to all those whose actions enabled the creation of a system and culture in which the physical, sexual and emotional abuse of children was tolerated and condoned. Indeed, what was so deeply disturbing about the ABC expose was that none of the officers made any attempt to conceal their abuse – "I'll pulverise the little f....r – oh shit, we're recording" but no attempt was made to stop the camera.

This culture of abuse points to a larger issue regarding Australia's political leadership and the treatment of children especially those who are in conflict with the law. The incessant pursuit of a law and order agenda by politicians may well resonate among the electorate but it has no foundation in either the evidence or Australia's obligations under international law.

The Convention on the Rights of the Child demands that a juvenile justice system must promote a child's sense of dignity and worth and focus on the child's re-integration rather than punishment. But dignity had been stripped from every inch of the Don Vale 'Behavioural Management Unit' and there was no prospect of re-integration in the use of ongoing solitary confinement and 10 separate bursts of tear gas to control boys who were already confined.

Such actions beggar belief in light of research which continually demonstrates that the law and order approach fails to reduce youth crime. Indeed it is revealing that within Australia, Victoria, which is committed to a rehabilitative model of juvenile justice, has the lowest rate of juvenile detention per capita (1.5/10,000) whereas the Northern Territory has the highest (17/10,000).

The Don Dale centre, where the abuse happened. Picture: ABC

The danger with stories like the ABC expose of the abuse at Don Vale is that we quickly forget about the lives of those who have been abused. We take solace in the fact that the Federal Government has announced a Royal Commission and senior personnel within the Northern Territory corrections system have already been sacked.

Our expectation is that this unfortunate affair will hopefully be resolved quickly and order will be restored. Sadly within Australia the experiences of far too many children has not always followed this trajectory. The trauma experienced by Jake Roper, Ethan Austral, Kenny Rogan, Dylan Voller and the other two boys who were gassed and abused on that night in the Behavioural Management Unit will not pass quickly. Nor will the trauma of those children who were sexually abused while in institutions or the trauma of those refugee children who were and continue to be detained by Australia to keep our borders safe.

These children have an entitlement to live a life of dignity, a life in which their rights are protected by Australia's Federal, State and Territory Governments.

Hopefully the Royal Commission will offer recommendations about how to guarantee these rights and our politicians will have the confidence and courage to embrace them. But they need not wait for the Commission to produce its report. In 2009 the Australian Government signed the Optional Protocol to the Convention Against Torture but it is yet to ratify the treaty.

As such, the National Preventive Mechanism and the capacity for inspection of institutions that lie at the heart of this instrument have not come into effect. Delay is no longer an option. Every necessary measure must be taken to ensure that no more children endure the abuse experienced by Jake, Ethan, Kenny, Dylan and their two colleagues.

Professor John Tobin is a recognised expert in international law and children's rights; Chief Examiner of the Child Law Specialisation with the Victorian Law Institute; and has previously worked as a youth lawyer with Victoria Legal Aid; a legal officer with the Victorian Department of Justice; and a consultant with UNICEF.

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