More than seven years after ratifying it, Australia's obligation to the United Nations torture protocols remains unfulfilled.

In their second report, the Australian National Preventive Mechanism (NPM) said Australia remains in breach of its international human rights obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) Treaty.

It comes as data reveals Indigenous incarceration rates - both for children and adults - continue to rise, with numerous jurisdictions actively pushing for more children to be housed in prison, contravening the Closing the Gap agreement and recommendations from the Indigenous deaths in custody royal commission.

"The overly punitive state of youth justice, the over-incarceration of Aboriginal and Torres Strait Islander people, population pressures in prisons and youth detention, and the over-use of isolation practices, remain serious and enduring problems across the country," Commonwealth Ombudsman and Coordinator of the Australian NPM, Iain Anderson, said.

"Mis-treating people in detention does not make the community safer."

Currently NSW, Victoria and Queensland are not members of the Australian NPM, which is also not properly resourced or legislated to meet its full mandate, the report said.

Last year, outgoing Victorian Ombudsman Deborah Glass said Victoria was a "laggard state" regarding its refusal to implement OPCAT. She noted numerous reports by her office on the UN agreement had been "widely praised by the human rights community," but mostly "ignored by the government".

There has been a stalemate regarding who will fund OPCAT, leading to the three states not implementing the mechanism, despite an open letter addressed to then-Victorian Attorney-General Jaclyn Symes expressing a "deep concern" at the state's ongoing failure to do so.

In a 23 February 2024 communiqué from a meeting of the intergovernmental Standing Council of Attorneys-General (SCAG), all participants "agreed that jurisdictions continue to cooperatively and progressively work towards compliance with OPCAT".

"Yet OPCAT is not referenced in any communiqué since then," the NPM report said.

Secretary General of the Association for the Prevention of Torture, Nicole Hogg, said Australia had the chance to be a leader in the space.

"As one of the few established NPMs in the region and one of the few multiple body NPMs in federal states around the world, Australia has the potential to inspire and support others in their journeys to establish and strengthen NPMs," Ms Hogg said.

Nonetheless, the treatment of people in prison - especially First Nations inmates - has continued to be highly criticised by human rights, legal and Indigenous campaigners. There have been at least 587 Indigenous deaths in custody since 1991.

Despite recommendations from experts, children continue to be incarcerated at higher rates - often in adult facilities.

In Queensland, the continuing use of adult watch houses to hold children has seen the state suspend its human rights act, whilst the NSW Premier Chris Minns last week celebrated an increasing number of children being incarcerated on remand.

Last year, a report highlighted the death of two disabled Indigenous children in Queensland, who died in the aftermath of spending more than 600 days combined in separation—the government's term of solitary confinement.

In the NT, the new CLP government has allowed spit hoods to be used on children in detention again, whilst Victoria refused to allow the National Child Commissioner to inspect its juvenile facilities.

Last month, Independent politician Yiŋiya Mark Guyula said he had written to the United Nations Special Rapporteur on the Rights of Indigenous Peoples, calling for them to visit the NT due to the conditions in prisons.

"We are hearing that people are being held for weeks and months in terrible conditions where there is severe overcrowding, access to showers is only happening every four or more days, the lights are on all the time so people can't sleep, people are sometimes sleeping quite near to toilet bowls because there is no space," he said.

In WA, two juvenile inmates died in custody in less than 18 months, the first such occurrences in the state's history.

"The overrepresentation of Aboriginal children and young people in the youth justice system is driven by factors including poverty, socio-economic disadvantage, systemic racism, and intergenerational trauma, which go far beyond the detention environment," the NPM report states.

"Governments must find enduring solutions to prevent detention in the first place."