Chapter 1Introduction and context
1.1This is an interim report of the Senate Legal and Constitutional Affairs References Committee (the committee). The purpose of this report is to provide an update with respect to the evidence received by the committee, including the testimony received at the public hearing held on 3 February 2025. The committee considered this to be important given that an election will be held between the tabling of this interim report and the reporting date for the inquiry. Thecommittee hopes that this interim report provides a basis for the Senate to consider the future conduct of its inquiries into the important matters considered in this inquiry to date.
1.2Given that only one public hearing has been held into the matters the subject of this inquiry, the focus of this interim report is the evidence received from those who participated in the hearing. A total of 223 submissions were received from stakeholders. The committee was approached by several stakeholders seeking the opportunity to appear at the public hearing but given time constraints this was not possible.
1.3During the course of the inquiry to date, the committee received strong evidence from a range of key stakeholders that Australia’s youth (or child) justice system is in crisis. Disturbing evidence was received that disadvantaged and vulnerable children and young people entering the system are being held in detention (sentenced/unsentenced) without adequate and appropriate supports. Serious concerns have been raised that the human rights of children, including rights arising under international human rights treaties to which Australia is a signatory, are being breached.
1.4The initial timeframe for the inquiry was 10 weeks, with the committee asked to report to the Senate on 26 November 2024. The committee therefore set a four-week deadline for the making of submissions and, despite the short timeframe, received a considerable volume of thoughtful and detailed submissions, demonstrating a high level of engagement with the terms of reference. Many of these submissions called for child justice reform.
1.5The committee resolved to hold a public hearing to identify key issues for the inquiry and to consider how the inquiry should proceed going forward. Thecommittee thanks those organisations and individuals who made submissions and who gave evidence at the hearing.
1.6The committee notes that, in Australia, under the federal system of government, each jurisdiction is responsible for its own child justice policies, legislation, services, et cetera. While there are jurisdictional similarities, there are also differences and, in this context, reform is a highly complex matter, requiring significant attention, collaboration and agreement among many stakeholders (government and non-government).
1.7In this interim report, the committee identifies some of the key issues presented in submissions and in evidence, to enable the Senate to consider how to progress this matter in the 48thParliament.
Referral and terms of reference
1.8On 11 September 2024, the Senate referred the following matter to the committee for inquiry and report by 26 November 2024:
Australia’s youth justice and incarceration system, with particular reference to:
(a)the outcomes and impacts of youth incarceration in jurisdictions across Australia;
(b)the over-incarceration of First Nations children;
(c)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;
(d)the Commonwealth’s international obligations in regards to youth justice including the rights of the child, freedom from torture and civil rights;
(e)the benefits and need for enforceable national minimum standards for youth justice consistent with our international obligations; and
(f)any related matters.
1.9Australia’s National Children’s Commissioner, Ms Anne Hollonds, welcomed the inquiry, saying that it is a critical step towards evidence and human rights-based reform:
[A] national inquiry will help shine a light on the failures in our child justice systems – failures which continue to destroy and devastate the lives of young people, their families, and communities. We are seeing these failures daily, particularly against First Nations and other children living with poverty and disadvantage, and complex needs such as disabilities, mental ill-health and trauma. The Inquiry will also gather evidence about the ways forward for solutions and systems reform.
1.10The Senate has twice extended the reporting date for the inquiry, with a final report due on 1 July 2025.
Conduct of the inquiry
1.11In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to individuals and organisations, inviting submissions by 10 October 2024. The committee continued to accept submissions received after this date. In total, the committee received 223 submissions, which are listed at Appendix 1, and held a public hearing in Canberra on 3 February 2025. A list of witnesses who appeared at the hearing is at Appendix 2.
Note on terminology
1.12This interim report preferences use of the term ‘child justice system’, rather than ‘youth justice system’, to better reflect a child rights approach, and also uses the term ‘youth’ to refer to children and young people aged 10–17 years. Thecommittee recognises that the Convention on the Rights of the Child defines every human being below the age of 18 years as a ‘child’. The terms ‘child’ and ‘youth’ are used throughout this report.
Context of Australia’s youth justice and incarceration system
1.13On 28 March 2024, the Australian Institute of Health and Welfare (AIHW) released its annual report on young people under youth justice supervision in Australia (Youth justice in Australia 2022–23). The key findings included that, onan average day, most of the youth under supervision were male and supervised in the community, with jurisdictional variations for community-based supervision and detention (Figures 1.1 and 1.2).
Figure 1.1Young people under youth justice supervision, 2022–23
Source: AIHW, Youth justice in Australia 2022–23, 28 March 2024, [p. 5].
Figure 1.2Young people under youth justice supervision, 2022–23, by jurisdiction and type of supervision
Source: AIHW, Youth justice in Australia 2022–23, 28 March 2024, [p. 12].
1.14In 2022–23, Queensland and New South Wales had the highest number of young people under youth justice supervision. However, the Northern Territory had the highest rate of supervision (79.5 per 10 000), compared to the lowest rate in Victoria (4.7per 10 000).
Specific data on the youth detention population
1.15On 13 December 2024, the AIHW released its most recent web report on quarterly trends in the youth detention population in Australia, from June 2020 to June 2024 (Youth detention population in Australia 2024). This included information on the number, gender and Indigenous status of young people in detention on an average night in the June quarter 2024 (Figure 1.3).
Figure 1.3Number of young people in detention on an average night in Australia, June quarter 2024
Source: AIHW, 'Youth detention population in Australia 2024, Summary', 13 December 2024.
1.16Figure 1.3 shows that 845 young people were in detention on an average night in the June quarter 2024, the majority of whom were male and/or Indigenous. The AIHW provided further information on the age and legal status of these young people.
1.17The AIHW reported that a ‘very’ small number of the young people in detention were aged 10–13 (38 of the 845 detainees), an increase of seven children from the June quarter 2020. Thiswas a rate of 0.3 per 10 000: for First Nations youth, the rate was 3.7 per 10000; for non-Indigenous youth, the rate was 0.1 per 10 000. Of the non-Indigenous youth in detention, 2.0 per cent were aged 10–13; for First Nations youth in detention, 6.2 per cent were aged 10–13.
1.18The AIHW also reported that about three in four (588 or 74 per cent) of young people in detention were unsentenced (awaiting their initial court appearance or sentencing). This was a rate of 2.0 per 10 000, compared to 0.6 per 10 000 for sentenced detention, representing an increase of 10 per cent in the four-year period.
Further data and statistics
1.19Other organisations and individuals (government and non-government) have compiled additional datasets and statistical publications. For example, the Productivity Commission annually reports on the equity, effectiveness and efficiency of government services in relation to youth justice (Report on Government Services).
1.20Submissions and evidence referred to these datasets and publications, as well as to the AIHW’s periodic reports. For clarity and consistency, this interim report refers primarily to the work of the AIHW, including in Chapters 2–5.
Reviews and inquiries
1.21On 20 August 2024, the National Children’s Commissioner tabled a report in the Parliament entitled ‘Help way earlier!’: How Australia can transform child justice to improve safety and wellbeing’ (the Help way earlier! report).
1.22The Help way earlier! report described the findings of a 12-month long inquiry into opportunities for the reform of child justice and related systems across Australia, during which the National Children’s Commissioner saw and heard evidence of ‘the most egregious breaches of human rights in this country’.
1.23Ms Hollonds concluded that Australia needs a transformative, national, child rights-based approach, to reform and replace the current child justice system:
…we have approached offending by children the wrong way. Wecannot ‘police’ our way out of this problem, and the evidence shows that locking up children does not make the community safer. We need to turn our attention and our resources to the underlying causes, and to the barriers that stop us taking national action on evidence-based systems reform.
1.24As discussed throughout this interim report, multiple submitters and witnesses agreed that ‘tough on crime’ policies are based upon community safety arguments that do not address the underlying factors for children and young people coming into contact with the child justice system (see Chapters 2 and 3).
1.25Australian and New Zealand Children’s Commissioners, Guardians and Advocates (ANZCCGA) urged the Australian government to adopt a different approach to better assist youth and to enhance community safety:
…we call upon the Australian Government to bring the issue of youth justice and incarceration to the attention of National Cabinet in a manner that focuses attention on upstream preventative and diversionary responses centred first and foremost on enhanced support that improves outcomes for children and young people (hereafter referred to as children) within the context of their families and communities.
The state of youth justice in Australia is at a crisis level and requires immediate and substantive reform if we are to increase public safety and change the life trajectories of those children who come to the attention of our justice systems. Continuing to tackle this through tougher justice approaches fails to recognise the complex and compounding interplay of intersectional disadvantages that impact those children most at risk.
1.26ANZCCGA specifically noted that, according to all evidence, the younger a child is when they first encounter the justice system, the more likely they are to reoffend (see Chapter 2), with a progression in the seriousness of the offending behaviour and engagement with the adult justice system.
Previous findings and recommendations
1.27Most submitters and witnesses considered that specific, if not all, recommendations made in the Help way earlier! report should be agreed and implemented. However, many commented on previous reviews and inquiries, including Royal Commissions and Commissions of Inquiry, whose findings and recommendations aimed at achieving youth justice reform remain largely unaddressed.
1.28The AHRC described responses to these recommendations as ‘piecemeal, uncoordinated and inadequate’. Other submitters attributed the stalemate to a lack of political commitment by all Australian governments. TheAustralian Child Rights Taskforce submitted, for example:
The available evidence demonstrates that governments have been unable to resist the lure of flawed political fixes. And there has been an absence of national leadership to encourage them to make the necessary sustainable investments in this relatively small but important group of children and the communities that they come from.
1.29The National Aboriginal and Torres Strait Islander Legal Services stated that governments have known but failed to address serious and ongoing concerns with youth justice systems due to political manoeuvring and opportunism:
The systemic failures of Australia’s youth justice systems are not new and are well known to Governments. 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.
Structure of the report
1.30This report comprises six chapters, as follows:
Chapter 1 provides an introduction and context to the inquiry;
Chapter 2 discusses the outcomes and impacts of youth detention;
Chapter 3 specifically examines First Nations youth in detention;
Chapter 4 discusses human rights compliance in the youth justice and detention system;
Chapter 5 examines the role of the Australian government; and
Chapter 6 sets out the committee’s interim conclusions and recommendations.
Note on references
1.31In this report, references to the Committee Hansard transcript are to proof (uncorrected) transcripts. Page numbers may vary between the proof and official (corrected) transcripts.