Alison Barrett writes:
Australia’s youth justice system is in crisis and requires immediate reform and Federal Government intervention in state and territory youth justice systems, a public hearing heard this week.
Addressing the Senate Inquiry into Australia’s youth justice and incarceration system, Australian and New Zealand Children’s Commissioners, Guardians and Advocates urged the Federal Government to set minimum standards to uphold the rights of children and young people involved with the youth justice system.
As well, all governments should follow consistent, evidence-based practices on what works to address the drivers of youth offending, they said.
Jodie Griffiths-Cook, Public Advocate and Children and Young People Commissioner for the ACT, said: “What we need most is a clear mandate that says enough is enough, and commits us to implement solutions that respond to the evidence, instead of letting uninformed or deliberately misconstrued narratives drive public policy and decision-making.”
Pat Turner, Lead Convenor of the Coalition of Peaks and CEO of the National Aboriginal Community Controlled Health Organisation (NACCHO), also called on the Federal Government to lead national action on raising the age of criminal responsibility.
She said the Federal Government has the power to legislate stronger protections for the human rights of children and young people in compliance with international human rights standards, including the United Nations convention on the rights of a child, UN Declaration on the Rights of Indigenous Peoples and the Optional Protocol to the convention Against Torture (OPCAT).
Turner said there had been an increase in “tough on crime” politics with some state and territory governments introducing punitive youth justice policies, laws and practices that are at odds with the evidence.
The legacy of incarceration, dispossession and colonisation is a “shameful part of our history” and a key driver for the over-representation of Aboriginal and Torres Strait Islander children in the youth justice system, Turner said. Other drivers include racism, poverty, violence, abuse, inadequate healthcare, intergenerational trauma and homelessness.
Turner told the Committee, that “despite what the media portrays, [Aboriginal and Torres Strait Islander] children are not innately criminal”.
The children who do encounter the criminal justice system are “the most vulnerable children in the country”, she said. Many have disabilities and mental health issues and have not been well taken care of.
Turner said the conditions that children experience in detention, including extended periods of isolation, are “appalling and an ugly stain on our nation”.
However, this doesn’t mean the issue cannot be addressed and improved, she said. “Indeed, things must change, because the lives of our children depend on it.”
Turner emphasised the important role of the Aboriginal and Torres Strait Islander community-controlled sector in youth justice, as “fierce” advocates for the wellbeing of children.
“We know how to engage and support them in culturally safe and trauma-informed ways,” Turner said.
She also said that supporting Aboriginal and Torres Strait Islander people with better education, housing and health will see improvements in youth justice. “It is all connected, and we know what works,” she said.
Witnesses at the public hearing also included representatives from the Australian Child Rights Taskforce, UNICEF Australia, SHINE for Kids, Australian Youth Affairs Coalition, First Nations Advocates Against Family Violence, National Justice Project and Jumbunna Institute for Indigenous Education and Research, Law Council of Australia, National Aboriginal and Torres Strait Islander Legal Services, the Australian Human Rights Commission, Department of Social Services, and Attorney-General’s Department.
The Committee is expected to report by 1 July 2025.
Over-represented
The week before the hearing, the Productivity Commission published its Report on Government Services 2025, showing that Aboriginal and Torres Strait Islander children aged 10 to 13 are at greatly increased risk of being detained or under community-based supervision.
It found that 45.5 per 10,000 young people (10-13 years) in detention or under community-based supervision in 2023-24 are Aboriginal and Torres Strait Islander, compared to one per 10,000 non-Indigenous young people.
The disproportionate numbers are likely to worsen in Northern Territory and Queensland, as the NT Country Liberal Party and Queensland Liberal National Party forge on with “tough on youth crime” agendas that have been criticised by many experts as ineffective and harmful.
Dr Mindy Sotiri, Executive Director on Justice Reform Initiative, told NITV that the “politicised approaches to policy-making” in the NT and Queensland “are having this really harmful impact in terms of sending large numbers of children into custody without investing in the kinds of things in the community that would make a difference”.
Yiŋiya Guyula, NT independent member of parliament from East Arnhem Land, told the ABC he had written to the UN Special Rapporteur on the Rights of Indigenous Peoples requesting they visit the NT amid concerns over overcrowded and terrible incarceration conditions.
The ABC reported that as of last week, a record number of 2,658 people were held across correctional facilities and police watch houses in the NT, with more than 400 people incarcerated since the CLP formed government in August 2024.
Shahleena Musk, Children’s Commissioner in the Northern Territory, told the Senate inquiry hearing that while making up 45 percent of the Territory’s youth population, Aboriginal children account for 94 to 100 percent of children in youth detention there.
“It’s clear the Northern Territory youth justice system is geared more towards incarcerating children than in investing in earlier supports and interventions, diversionary and restorative justice programs, accommodation and rehabilitative alternatives,” Musk said.
Musk pointed to the politicisation of youth justice and the critical role of media and social media with a tendency towards a sensationalist framing of Aboriginal children with stereotypical and derogatory narratives.
Since the NT Country Liberal Party formed government in 2024, they have reversed the age of criminal responsibility from 12 to 10 years, reintroduced the use of spit hoods on children in custody and introduced stronger bail laws that will impact children.
These actions and laws do “nothing to make our communities safer, nor does it address the root cause of the crime youth justice systems,” Musk said. “The laws and policies that affect our most vulnerable children must be separated from politics.”
Evidence-based solutions exist
Evidence-based practices to address the drivers of youth offending and improve responses for supporting at risk children include restorative justice and alternative responses that keep children in their communities, with families, engaging in education, health, healing and cultural programs, Musk said.
Jacqueline McGowan-Jones, Commissioner for Children and Young People WA, told the hearing that responses should be individualised and child-centred with multi-agency collaborations working with the child, family and community.
She said that while Australia is one of the world’s wealthiest countries, it continues to breach the human rights of children, as highlighted in the recent Human Rights Watch report.
“In what other first world country do we see children dying in custody?” she asked the committee.
“If we want to stop the pipeline of children into crime and youth detention, we must intervene early with children and families who are at risk. We must value and invest in the importance of our future generations,” she said.
“We need solutions that reflect what children and young people tell us will work for them.”
She said the Commissioners developed a list of 11 reform or policy priorities in 2023, which are due for review at their next meeting, in February 2025.
These priorities include strengthening the national Aboriginal and Torres Strait Islander community-controlled sector, implementing a nationally consistent approach to monitoring over-representation of Aboriginal and Torres Strait Islander children in child protection and youth justice systems, and ongoing advocacy to raise the age of criminal responsibility to 14 years nationally.
Upholding children’s rights
Shona Reid, Guardian for Children and Young People in South Australia, told the hearing of a recent study showing that nine in ten children in detention in South Australia have a disability-related need.
“Have we created a situation because we simply haven’t cared early enough in their lives? Have we created a situation because we haven’t invested in family support systems well enough? Have we created this situation because we keep kicking the bucket down the road?” Reid said.
”We need to uphold [children’s] right to be heard, and we need to act in ways that show we have listened as commissioners, guardians and advocates.”
Children have a lot to say about how the media and community portray and treat them and what happens to them when they enter youth detention settings, she told the committee.
We are observing the consequences of fractures in families, societal and support structures across multiple generations and political cycles.
“We cannot simply drive down the same road as we always have, because we will inevitably end up in the same location – containment, containment and more containment,” she said.
Reid told the hearing that children and young people are being let down by families, support and legal systems.
Commonwealth leadership
The Commonwealth Government has a duty of care to ensure that all Australian state and territory governments meet international human rights obligations, including those under OPCAT, UNCRC, and national agreements including Closing the Gap and the National Framework for Protecting Australia’s children, Natalie Lewis, Commissioner for the Queensland Family and Child Commission, told the hearing.
“While typically quick to focus on the state’s role in legislating and…administering youth justice systems, the impacts of that legislation on children and young people and on community safety should be of keen and ongoing interest to the Commonwealth,” Lewis said.
“It is not over-reach [for the Commonwealth] to proactively engage and assert minimum standards.
Minimum national standards to protect the rights of children when interacting with the justice system could include establishing a national policy position regarding the definition and impacts of isolation on children and prohibition on the use of solitary confinement of children, she said.
The Commonwealth can also demonstrate leadership by requiring states and territories at a minimum to provide access to vital supports to make rehabilitation and successful reintegration viable, she added.
Lewis also called for federal leadership on safeguarding standards of health and mental healthcare, and disability supports, “regardless of whether a child is in custody or in their community”.
Pat Turner also called for Commonwealth intervention in youth justice – the “Commonwealth holds critical levers for change in this space”, she said, including political and fiscal power and tools to influence significant reform across jurisdictions.
Restorative justice
Catherine Liddle, CEO of SNAICC – the national voice for our children, told the hearing that removing children from positive influences in their communities does not make communities safer.
“Carceral environments are, by their very nature, traumatising and criminalising” and result in reoffending, Liddle said, as highlighted in the Australian Human Rights Commission Help Way Earlier report.
No-one is saying that children who engage in offensive behaviours or break the law should not have some form of consequence, but they must be appropriate and proportionate to the age and stage of the child, Liddle said.
Positive examples of restorative justice that prioritise accountability and genuine restitution exist across Australia, she said.
“The evidence that has emerged on the efficacy of restorative justice is certainly significant enough to justify a huge scale up of its use and further evaluation and learning about this practice and benefits,” she said.
She also called for national leadership, saying “it is well within the responsibility and the jurisdiction of the Commonwealth Government to reorientate funding and policy towards eliminating the underlying structural factors that drive our children’s over-representation of the justice system”.
Prison healthcare
Following the National Review of First Nations Healthcare in Prisons, NACCHO has been working with the Commonwealth Department of Health and Aged Care to develop a proposal to trial extended delivery of community controlled health service in places of detention, Pat Turner said.
Children in the criminal justice system and detention had multiple complex needs that require immediate support from health and education support services by Aboriginal and Torres Strait Islander people and organisations, she said.
While the Justice Policy Partnership in Justice Reinvestment and additional funding for Aboriginal legal services are positive steps by the Federal Government, Turner said “far more must be done to address the unmet needs of our children who are at risk of entering, or who have entered, the criminal justice system”.
The Productivity Commission’s review of the National Agreement has shown that while there are some “pockets of good practice”, implementation is not occurring at the scale needed.
Turner urged all governments to fulfil their commitments to the National Agreement on Closing the Gap and implement the PC review recommendations:
- Policy, legislative and service system reform is done in genuine partnership with Aboriginal and Torres Strait Islander people and organisations
- Investment for Aboriginal and Torres Strait Islander youth justice and wraparound support services is transitioned to Aboriginal community controlled organisations
- Significant increases in funding for accessible, legal advice, representation and support for Aboriginal and Torres Strait Island children and young people, including early intervention, prevention and diversion services and therapeutic healing and social and emotional wellbeing, health and education services.
In December 2024, federal, state and territory health ministers responded to the National Review of First Nations Health Care in Prisons which was conducted by Nous Consortium last year, saying they committed to developing an approach to implementation in 2025, in partnership with the Aboriginal Community Controlled Health Services sector, other First Nations stakeholders, and Ministers responsible for corrections and youth justice.
Meanwhile, Victorian Premier Jacinta Allan announced this week a review of the state’s bail laws, which were implemented only ten months ago.
Nerita Waight, CEO of the Victorian Aboriginal Legal Service, said the move is a “blatant disregard for the lives of Aboriginal and Torres Strait Islander people who were, and continue to be, disproportionately affected by discriminatory bail laws”.
“Aboriginal-led programs that keep our people safe through early intervention, prevention and diversion programs must also be prioritised if ‘community safety’ is to be achieved,” she said.
Further reading
‘Pivotal moment for reform’: Review into First Nations healthcare in prisons calls for sweeping changes, by Denham Sadler
Senate Inquiry into youth justice and incarceration public hearing transcript.
See Croakey’s archive of articles on justice and policing.
