The treatment of Indigenous children in a Northern Territory youth prison could amount to torture under international criminal law, the United Nations special rapporteur on torture, Juan Mendez, has said.
Mendez said any public officials who covered up the treatment of children at Darwin’s Don Dale youth detention centre could also be guilty of torture as defined in the convention against torture and other cruel, inhuman, or degrading treatment or punishment, which includes acts done “with the consent or acquiescence of a public official or other person acting in an official capacity”.
Speaking on the ABC’s Radio National on Thursday, Mendez said the acts shown in footage broadcast by Four Corners, which included children being thrown, stripped, assaulted, teargassed, held in solitary confinement, and hooded and tied to a “mechanical restraint” chair, “can amount to torture or to very cruel, inhumane or degrading treatment under any circumstance”.
Australia was accused of violating the international convention against torture last year for detaining children in immigration detention and holding asylum seekers in dangerous and violent conditions on Manus Island.
Mendez, who was responsible for that report, said at the time that Australia had fallen short “of its obligations under international law.”
He said the acts committed against the children at Don Dale could have made up the elements of the international crime of torture but it would be up to Australia to prosecute those involved.
“There’s no question that here there’s been an infliction of very severe pain and suffering, that the perpetrators are, or seem to be, state agents; but what we need to know is whether appropriate action was taken afterwards,” he said.
“If this information was in the possession of other state agents who didn’t do anything about it, then of course it would be an added, you know, reason to conduct a very serious inquiry and to let the chips fall where they may, and punish those who not only participated in the acts but acquiesced in them and tolerated them.”
Whether it puts Australia in violation of its international responsibilities, he said, depended on the government’s response.
Mendez said it was “encouraging” that the Australian government had moved swiftly to establish a royal commission into both the abuse and the alleged coverup of abuse.
He added, “but I also want to know what the scope of the inquiry is going to be, how far it is going to go … [what] we need to know is not only that this happened but that a proper response has happened.
“That is: has it been investigated; has everybody that participated in it, including those that may have covered it up, been appropriately punished; have reparations been offered and paid to the victims.
“All of those things that are part of Australia’s international obligations, we’re going to be looking at that.
The prime minister, Malcolm Turnbull, was set to release the terms of reference for the commission after a cabinet meeting on Thursday.
He has already said the inquiry would be restricted to the Northern Territory, despite calls from Aboriginal and Torres Strait Islander leaders, lawyers, and Gillian Triggs, president of the Australian Human Rights Commission, that the inquiry start with the events at Don Dale and be broadened to include juvenile justice centres in other states.
Labor senator for Western Australia Pat Dodson, who was one of the commissioners in the 1989-91 royal commission into Aboriginal deaths in custody, said the inquiry “should look at how systemic practices pertain across all jurisdictions”, and should also look at how children ended up in detention.
The human services minister, Alan Tudge, said it was up to other states to initiate their own inquiries if they believed they had similar issues.
