Additional Comments by Senator Lidia Thorpe
1.1This inquiry has only reaffirmed what Elders, communities, advocates, and international bodies have been saying for decades.
(a)The criminalisation and detention of children in Australia is a crime scene and a human rights catastrophe that disproportionately impacts First Nations children. Detention centres are sites of systemic child abuse, operating in direct violation of this country’s domestic and international human rights obligations and all morality, with evidence of neglect, excessive force, trauma, sexual, psychological and physical abuse inflicted on children as young as 10.
(b)Tough-on-crime policies do not function to keep communities safe.Theoverwhelming evidence confirms that locking children up does not make our community safer and seriously harms the children concerned, particularly First Nations children. These policies do not reduce crime, but instead entrench cycles of trauma, poverty, and incarceration—fuelling over-policing and mass incarceration.
(c)The lack of compliance with human rights obligations means that vulnerable children are criminalised by the conditions created by colonial violence, poverty, and state neglect. In breach of human rights obligations children are denied access to housing, education, healthcare, and family support.
(d)First Nations child removals, policing, and incarceration are the continuation of colonialism. From the early missions and reserves government institutions have always been about controlling, punishing, and removing First Nations children from their families and Country funnelling them from child protection into prisons.
(e)The federal government is complicit in the state-sanctioned torture and abuse of children in detention, permitting ongoing violations nationally with zero accountability despite having the legislative power to enforce national human rights compliance. It hides behind performative agreements, inquiries and empty reports, while refusing to take meaningful action to stop the systemic criminalisation, brutalisation, and deaths of First Nations children.
1.2We must actually address the conditions and causes of criminalisation, move away from carceral responses, and adopt a non-violent approach to keeping communities safe.[1] Practically every submission has emphasised the need to invest in programs and solutions that are First Nations controlled and operated, culturally safe, therapeutic, trauma informed and targeted to address root causes.
1.3Immediate and urgent action is required. Right now, children as young as 10 are suffering needlessly—caught in a system that prioritises politics and punishment against all best evidence, in direct contravention of children's best interests, human rights, and lives. Immediate and urgent action is needed to protect those at risk of criminalisation and those already in detention. Their lives must come before political agendas. Decades ago, the Bringing Them Home Report and the Royal Commission into Aboriginal Deaths in Custody made it clear—federal intervention and leadership were urgent then, the Help way earlier!’: How Australia can transform child justice to improve safety and wellbeing (theHelp way earlier! report) report shows they are non-negotiable now.
1.4Children's detention centres are not sites of rehabilitation: they are sites of systemic child abuse, operating in breach of all morality and internationally protected human rights obligations.[2] This is outlined in Chapter 4 of the Interim Report.
1.5As such, nationally, children’s detention centres operate as sites of state-sanctioned institutional child abuse, with federal, state, and territory governments—along with their agencies and institutions—its perpetrators.
1.6The state often inflicts its most severe violence in residential care settings and prisons, where it is, in fact, the child’s guardian.[3] Children are not safe in these places.[4] No child should be in prison, and governments are not responsible legal guardians and are not fit to care for or discipline children.
1.7While the conditions of children in detention are partially laid out in Chapter 2 of the Interim Report, the true horrors and severity of neglect, abuse, excessive force, and harm experienced by children as young as 10 are sanitised, disappeared, and hidden. This report does not even touch on the two First Nations children who committed suicide in detention in 2024, one of whom was 14 years old.
1.8As pointed out by the Australian Institute of Health and Welfare, much of the data around conditions and harm are not even recorded,[5] and the independent bodies mandated under the Optional Protocol to the Convention Against Torture to prevent torture and inhumane treatment are being denied access to places of detention, blocking them from even witnessing the abuses they are meant to prevent.[6]
1.9Overwhelmingly, submissions stated that the best evidence shows that removing kids from communities, locking them up, and punishing and abusing them does not lead to positive outcomes. It does not make communities safer; itonly creates more harm.[7] ‘Tough-on-crime’ is not a solution—it is populist, racist, political rhetoric that locks communities and children into an endless cycle of trauma, harm, offending, conflict and incarceration.[8]
1.10Children's detention centres are not sites of rehabilitation. Ms Jacqueline McGowan-Jones, Commissioner for Children and Young People (WA), stated:
We don't rehabilitate. We don't support them to have rehabilitation for drug and alcohol problems. We don't support them with the needs they have for their disabilities, cognitive impairments and other things. We are condemning these children to a life of institutionalisation.[9]
The outcomes and impacts of youth incarceration are well researched and it is clear that institutionalising children during their formative years is a key driver of lifelong criminalisation.[10]
1.11Upon release, children are not provided access to the basic needs that they were seeking before their criminalisation.[11] The state does not protect vulnerable children before, during, or after incarceration: it only polices and punishes them. Indeed, the very systems that claim to offer care and solutions—child protection, the legal system, law enforcement—are the very mechanisms that perpetuate their ongoing suffering and oppression.
1.12Incarceration only perpetuates harm—we must dismantle the systems that police, remove, and imprison children and replace them with community-led models of care, support, and accountability. Justice Reinvestment must be implemented in its true form, redirecting funding from prisons and policing into community-based prevention, diversion, and long-term solutions, including housing, education, healthcare, and wraparound support services.[12]
1.13When a child is hurting or acting out, our Lore teaches us collective care and guidance. It teaches us to treat the wound, to wrap the community around those who are struggling. We as communities and as a nation should be able to teach our children about care, kinship and accountability without resorting to institutions which literally facilitate child abuse and create lifelong trauma.[13]
1.14As pointed out by the Institute for Collaborative Race Research (ICRR):
Justice for Black communities cannot be found in the very system that commits violence against them every day. The same reformist recommendations that train and fund police, or create ‘more appropriate’ prisons for children do nothing to change the fundamental violence of the system. We must actually address the conditions of criminalisation and adopt a non-violent approach to keeping communities safe.[14]
1.15International legal frameworks obligate Australia to ensure that children are provided with essential services, this includes ensuring every child has access to healthcare, education, and an adequate standard of living, including food and housing.[15] Australia systematically violates these obligations by criminalising children instead of fulfilling these obligations. First Nations children and families are the primary victims of this state neglect, and of criminalisation, and are massively overrepresented in every single metric in every single jurisdiction.[16]
1.16First Nations children themselves consistently say that their criminalisation is linked with a lack of support for their basic needs: before being locked up, many needed a safe place to call home, enough food, inclusive education, health supports and access to family and community.[17]
1.17In her 2017 visit to Australia, UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, observed that First Nations children are ‘essentially being punished for being poor’, with incarceration exacerbating cycles of violence, poverty, and crime. She highlighted that the significant factors leading to the criminalisation and incarceration of First Nations people can be traced to land dispossession, genocide, disruption of kinship systems, and other impacts of colonisation.[18]
1.18This isn’t about a lack of funds—it’s a political choice where governments would rather spend $3,320.46 a day—locking up one child than ensuring they have access to safe, ongoing food and housing.[19] In Queensland, the state government deployed police helicopters and police street checks during the school holidays specifically in low socioeconomic, First Nations and migrant communities.[20]
1.19The Help Way Earlier! report from the Australian Human Rights Commission highlights that children need support long before they come into contact with the justice system, emphasizing early intervention, access to basic needs, and community-led solutions to break cycles of harm and criminalisation. The report emphasises that children need access to safe housing, education, healthcare, culturally appropriate support, and strong connections to family and community long before they come into contact with the justice system. It calls for early intervention and investment in community-led solutions to prevent criminalisation and break cycles of harm.
1.20Of the 339 recommendations of the Royal Commission into Aboriginal Deaths in Custody, nearly 40 per cent addressed the root causes of criminalisation—land rights, housing, education, health, children's programs, employment, and self-determination. These were not symbolic gestures; they were a roadmap for justice. The only reason they haven’t been implemented is political choice.
1.21Aboriginal and Torres Strait Islander children's rights have been in crisis since colonisation, when we were dispossessed of our land and our cultural ways of growing up and nurturing our children, which we had done successfully for more than 65 000 years.[21]
1.22As laid out in Chapters 1 and 3, First Nations children are over-criminalised and overrepresented in every jurisdiction, making up 57 per cent of all children in detention and up to 91 per cent in the Northern Territory. Despite being only a small fraction of the population, they are 28 times more likely to be imprisoned. For First Nations children aged 10-13, the overrepresentation is even more extreme.[22]
1.23As pointed out by the ICRR, incarceration is political—it is about race, ongoing colonisation and state violence in all its forms. Carceral systems have always been used to impose and maintain colonial control over Indigenous people on this continent. From missions, reserves and Chief Protectors, child removal systems, prisons and police, ‘there is no justice in the violence of policing, courts and prisons that have seen no convictions for 516 deaths in custody,that blame Black women for their own disappearances and lock up children away from their communities and Country’.[23]
1.24This isn’t a broken system—it’s a system doing exactly what it was originally built to do. From invasion to now, colonial governments have brutalised, criminalized and controlled First Nations communities in order to get access to their land.[24] Child removals, policing, and mass incarceration were never failures—they were the plan. The Bringing Them Home report identified child removals as genocide, yet there has been no reckoning, no truth telling, no change.
1.25First Nations children are still being forcibly removed from their families at escalating rates, and as of 2023, nearly 22,330 Aboriginal and Torres Strait Islander children were in out-of-home care across Australia. The Yoorrook Justice Commission, Australia's first formal truth-telling body, established in May 2021 to investigate historical and ongoing injustices experienced by First Peoples since colonization. It heard of the established process of identifying expectant mothers for the potential removal of their child once born. In effect, this means the First Nations children community can be in a pipeline to the justice system before being born.[25]
1.26The state’s refusal to confront its own racism ensures the cycle continues: First Nations children are scapegoated—used by politicians to consolidate power and by the media to generate profit. They are vilified, dehumanised, and weaponised to justify more police, more prisons, and more violence and more dispossession.
1.27If the government cannot reckon with its own role as the abuser, and address its paternalistic, white supremacist attitudes, then it will continue to be complicit in these crimes.
1.28The federal government’s continued inaction in the face of well documented and indisputable evidence of human rights breaches of vulnerable children across the nation makes it complicit in the abuse. The ongoing delays, inquiries, and political deflections do nothing but uphold the very conditions of harm that First Nations communities have resisted for generations. Consecutive Australian governments have not just failed to act, but are actively making the situation worse.
1.29The federal government—responsible for national human rights compliance —is overseeing a legal system that permits the ongoing, nationwide physical and sexual abuse with zero accountability.[26] More so, the federal government has the power to act—it can legislate national minimum standards under the external affairs power (section 51(xxix) of the Australian Constitution), enforce human rights compliance, and intervene to stop these abuses.[27]State violence against Indigenous children is also defined by what the state fails to do when children themselves are victims of crime.[28]
1.30The government's consistent refusal to implement the recommendations of inquiries, commissioners, international committees, allows the government to feign due diligence while evading real accountability. All the while perpetuating systemic abuse against children with impunity, compounding their trauma, institutionalization, and, in many cases, leading to their deaths.[29]
1.31Countless inquiries and monitoring functions of the youth justice system consistently outline the trauma the system inflicts on children, compounding the harm many have already endured.[30] Reports also demonstrate regular breaches of facilities’ own guidelines as well as state standards, human rights, cultural rights and other obligations.[31] As stated by the National Aboriginal and Torres Strait Islander Legal Services:
The thousands of pages and hundreds of recommendations in the over 21 key inquiries and reviews conducted into this issue since 2016 alone makes this clear...Australia’s youth justice system continues to be plagued by political manoeuvring and opportunism while children continue to suffer.[32]
1.32Citing failed frameworks isn’t accountability: it’s a smokescreen for inaction.[33] On the topic of Justice Reinvestment discussed from page 34 of the Interim Report, despite all the rhetoric, not a single cent has actually been redirected from police, prisons, or surveillance into communities—justice reinvestment initiatives as they stand, are just another hollow promise, crippled by the same racism, paternalism, and bureaucratic inertia as every other so-called reform.
1.33Additionally, the federal government has also done nothing to ensure the public is informed of the best evidence when it comes to children’s incarceration, and has not challenged the racist dog-whistling that fuels public hysteria.[34]I see direct links to the white vigilante gangs in North Queensland who have been emboldened by the racist touch on crime rhetoric, and have stalked, intimidated, and even restrained Aboriginal children with dog collars—acts met with silence from police, government, and media. This indifference reflects what Dr. Amy McQuire identifies as the systemic erasure of Black children, whose disappearances and incarceration are normalized, unremarkable, and deemed ‘not newsworthy.[35]
1.34Decades ago, the Bringing Them Home report and the Royal Commission into Aboriginal Deaths in Custody and now the Help Way Earlier! report have made it clear—federal intervention and leadership were urgent then, and they are non-negotiable now.
1.35We must act urgently to address the conditions of criminalisation and adopt a non-violent approach to keeping communities safe.[36]We must urgently abolish the detention of children nationwide and redirect the funds spent on their incarceration to meet their immediate needs in community, including community-led housing, education, healthcare, and culturally safe support services that address the root causes of criminalisation.
1.36To refuse to act so is to admit that the government's relationship with human rights obligations is purely performative, and that First Nations children, and indeed all vulnerable children targeted by these systems, are being sacrificed for political convenience.[37]
1.37The federal government must take immediate and decisive action to end the systemic harm inflicted on First Nations children by state violence, incarceration, and forced removals. These recommendations are immediate starting points, and I will provide further recommendations in the Final Report.
Recommendation 1
1.38The federal government must urgently use all available legislative and policy levers to implement the following immediate measures:
A national ban on all forms of torture and mistreatment: Immediately prohibit solitary confinement, strip searches, spit hoods, restraint chairs, chemical restraints, and excessive force against children in all jurisdictions.
Ending the detention of children in adult facilities: Immediately remove all children from watchhouses, police custody and adult prisons and ensure they are never held in adult detention under any circumstances.
Reforming Bail and Remand Laws: Establish national, evidence-based, child-centred frameworks that prioritise rehabilitation, diversion, and early intervention over detention to break the cycle of criminalisation.
Ensure ongoing access to safe, adequate and culturally appropriate healthcare and education to all children in contact with the criminal legal system.
Recommendation 2
1.39The federal government must immediately allocate emergency funding to frontline services in communities, prioritising First Nations Community-Controlled Organisations, to support at risk children by:
providing safe housing and crisis accommodation.
ensuring access to food, clothing, healthcare, and culturally appropriate support.
supporting family reunification and trauma-informed care to break the cycle of criminalisation.
diverting resources away from policing and detention and instead investing in First Nations-led solutions, including housing, healthcare, education, family reunification, and culturally safe support services and programs.
Recommendation 3
1.40Provide urgently requested needs-based and sustained funding increases for Aboriginal and Torres Strait Islander Legal Services to deliver culturally safe, holistic legal services and wraparound supports for First Nations children and young people, and to partner with governments to transform youth justice in line with the Closing the Gap priority reforms and to meet Socio-Economic Target 11.
Recommendation 4
1.41Immediately halt all plans for the construction or expansion of children's prisons across Australia and work in genuine partnership with communities to develop non-carceral, community-led solutions that provide culturally safe, trauma-informed support for children and families.
Recommendation 5
1.42The federal government must publicly reject racist and punitive ‘tough on crime’ narratives that drive harmful policies targeting children and hold state and territory governments accountable for enacting policies that go against best evidence, disproportionately criminalise First Nations children and escalate their incarceration.
Recommendation 6
1.43Immediately commence a process for the full implementation of:
the Bringing Them Home report;
recommendations from the Royal Commission into Aboriginal Deaths in Custody; and
the Help Way Earlier! report.
Recommendation 7
1.44Establish a mechanism to provide national oversight and monitoring of the implementation of the reports referred to in Recommendation 6 in all jurisdictions.
This includes ending the harmful practices in children's detention by implementing enforceable national minimum standards and supporting trauma-informed, culturally safe, community-based alternatives to detention, with a focus on early intervention and diversion strategies, and justice reinvestment approaches that are self-determined and address the root causes of criminalisation.
Minimum standards must be developed in partnership with Aboriginal and Torres Strait Islander people, and in line with this country’s international human rights obligations under the Convention on the Rights of the Child; the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of Persons with Disabilities, and other international treaties Australia has ratified that have bearing on the treatment of children in the criminal legal system.
Recommendation 8
1.45The federal government must take immediate steps to enact a national Human Rights Act that includes nationally enforceable protections for children’s human rights with national oversight and enforcement mechanisms.
Recommendation 9
1.46Should this inquiry continue in the 48th Parliament, the committee must focus on non-violent community-led solutions and move beyond carceral frameworks and focus on how the Australian government can fulfil its obligations to self-determination and sovereignty for First Nations peoples.
Recommendation 10
1.47Should this inquiry continue in the 48th Parliament, the committee should use the expanded terms of references proposed by my amended motion to the original establishment of this inquiry, with particular reference to the Commonwealth’s responsibilities as they relate to:
the outcomes and impacts of youth incarceration in jurisdictions across Australia;
the evidence for current youth justice approaches;
the driving factors of the over-incarceration of First Nations children;
the links between child protection and youth incarceration;
the degree of compliance and non-compliance by state, territory and federal prisons and detention centres with the human rights of children and young people in detention;
the Commonwealth’s international obligations in regards to youth justice including the rights of the child, freedom from torture and civil rights;
the benefits and need for enforceable national minimum standards for youth justice consistent with our international obligations;
the extent to which the Commonwealth and state and territory governments have given effect to the recommendations of the Royal Commission into Aboriginal Deaths in Custody;
access to healthcare and disability support, including proper screening and assessments by relevant professionals;
alternatives to incarceration, the evidence base on the efficacy and cost-effectiveness of diversionary programs and existing public sector support for these programs, including self-determined, culturally appropriate programs for First Nations young people; and
any related matters including those laid out in the above recommendations.
Senator Lidia Thorpe
Footnotes
[1]Institute for Collaborative Race Research (ICRR), Submission 185, p. 2.
[2]Sisters Inside & National Network of Incarcerated and Formerly Incarcerated Women & Girls, Submission 128, pp. 3 and 22. Also see: Professor George Newhouse, Principal Solicitor and Chief Executive Officer, National Justice Project (NJP), Committee Hansard, 3 February 2025, p. 54; UN, Digital Library, ‘Concluding observations on the 6th periodic report of Australia: Committee against Torture’, 5 December 2022, paragraph 31.
[3]ICRR, Submission 185, p. 2.
[4]Dr James Beaufils, Senior Research Fellow, Jumbunna Institute for Indigenous Education and Research (Jumbunna), Committee Hansard, 3 February 2025, p. 55.
[5]Australian Institute of Health and Welfare (AIHW), National data on the health of justice-involved young people: A feasibility study, p. vii, www.aihw.gov.au/getmedia/4d24014b-dc78-4948-a9c4-6a80a91a3134/aihw-juv-125.pdf?v=20230605182427&inline=true (accessed 10 October 2024).
[6]Optional Protocol to the Convention Against Torture, article 1; Australian Human Rights Commission (AHRC), Submission 65, p. 18.
[7]Justice Action, Submission 148, p. 6. Also see: Australian Medical Association, Submission 55, p. 4; Australian Youth Affairs Coalition, Submission 156, pp. 3–4.
[8]Sisters Inside & National Network of Incarcerated and Formerly Incarcerated Women & Girls, Submission 128.
[9]Ms Jacqueline McGowan-Jones, Commissioner for Children and Young People (WA), Committee Hansard, 3 February 2025, p. 7.
[10]Law Council of Australia (Law Council), Submission 195, p. 7; AIHW, Young people returning to sentenced youth justice supervision, 2021–22, 2023, p. 6.
[11]Ms Zoë Robinson, Advocate for Children and Young People (NSW), Submission 139, p. 3; AHRC, Submission 65, p. 12.
[12]ICRR, Submission 185, p. 6.
[13]Sisters Inside & National Network of Incarcerated and Formerly Incarcerated Women & Girls, Submission 128, p. 2. Also see: Justice Reform Initiative, Submission 20, p. 22; NAPCAN, Submission 66, [p. 3].
[14]ICRR, Submission 185, p. 2.
[15]International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); Convention on the Rights of the Child, adopted 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 24.
[16]AHRC, Help way earlier! report, 2024, p. 8. Also see: NJP and Jumbunna, Submission 51, p.3; Sisters Inside & National Network of Incarcerated and Formerly Incarcerated Women & Girls, Submission 128, pp. 4–5.
[17]ICRR, Submission 185, p. 2; Koorie Youth Council, Ngaga-dji, 2018, www.koorieyouthcouncil.org.au/wp-content/uploads/2023/09/Ngaga-djireportAugust2018.pdf (accessed 28 February 2025); Commission for Children and Young People, Our Youth, Our Way, 2021, https://ccyp.vic.gov.au/inquiries/systemic-inquiries/our-youth-our-way/ (accessed 28 February 2025); Queensland Family and Child Commission, Yarning for Change: Listen to My Voice, 2022, www.qfcc.qld.gov.au/sector/monitoring-and-reviewing-systems/young-people-in-youth-justice/yarning-for-change (accessed 28 February 2025).
[18]United Nations Special Rapporteur on the Rights of Indigenous Peoples, End of Mission Statement, OHCHR (3 April 2017).
[19]Ms Nerita Waight, Deputy Chair, National Aboriginal and Torres Strait Islander Legal Services, Committee Hansard, 3 February 2025, p. 71.
[20]Sisters Inside & National Network of Incarcerated and Formerly Incarcerated Women & Girls, Submission 128, p. 2.
[21]Parliamentary Joint Committee on Human Rights, Review into Australian Human Rights Framework, Ms Rachel Atkinson, Board Member, SNAICC—National Voice for Our Children, Committee Hansard, 25 August 2023, p. 33.
[22]AIHW, Youth Justice in Australia 2024: Key Statistics on Children in Detention, June Quarter, 2024.
[23]ICRR, Submission 185, p. 1.
[24]ICRR, Submission 185, p. 1.
[25]Yoorrook Justice Commission, Yoorrook for Justice, 2023, p. 4, https://yoorrookforjustice.org.au/wp-content/uploads/2023/08/Yoorrook-for-justice-report.pdf (accessed 28 February 2025).
[26]National Agreement on Closing the Gap, July 2020, paragraph 58.
[27]Mr Greg McIntyre SC, Member, National Human Rights and Indigenous Legal Issues Committees, Law Council, Committee Hansard, 3 February 2025, p. 61; Dr Adam Fletcher, Senior Policy Lawyer, Law Council, Committee Hansard, 3 February 2025, p. 62.
[28]Koorie Youth Council, Ngaga-dji, 2018, p. 46; Commission for Children and Young People (CCYP), Our Youth, Our Way, 2021, pp. 190–191.
[29]ICRR, Submission 185, p. 5.
[30]See for example: Royal Commission into the Protection and Detention of Children in the Northern Territory, Final Report, 2017; Amnesty International, “Heads held high”, Keeping Queensland kids out of detention, strong in culture and community, 2016, www.amnesty.org.au/wp-content/uploads/2016/12/Heads_Held_High_-_Queensland_report_by_Amnesty_International.pdf (accessed 28 February 2025); CCYP, The same four walls, 2017, https://ccyp.vic.gov.au/inquiries/systemic-inquiries/the-same-four-walls/ (accessed 28 February 2025); Koorie Youth Council, Ngaga-dji, 2018, p. 46; CCYP, Our Youth, Our Way, 2021.
[31]ICRR, Submission 185, p. 4.
[32]National Aboriginal and Torres Strait Islander Legal Services (NATSILS), Submission 202, p. 4. Also see: ICRR, Submission 185, pp. 4–5, which argued that the persistent refusal to act suggests that these monitoring and oversight mechanisms are performative only.
[33]Attorney-General’s Department, Submission 204, [p. 5].
[34]Ms Nerita Waight, Deputy Chair, NATSILS, Committee Hansard, 3 February 2025, p. 75.
[35]ICRR, Submission 185, pp. 4–5.
[36]ICRR, Submission 185, p. 2.
[37]ICRR, Submission 185, pp. 4–5.
Inquiry into Australia’s youth justice and incarceration system.
Senate
House of Representatives
Get informed
Bills
Committees
Get involved
Visit Parliament
Website features
Parliamentary Departments