Chapter 3First Nations youth in detention
3.1In 2024 the Australian Institute of Health and Welfare (AIHW) reported on First Nations young people under youth justice supervision in Australia on an average day in 2022–23 (Youth justice in Australia 2022–23, Figure 3.1).
Figure 3.1First Nations young people under youth justice supervision, 2022–23
Source: Australian Human Rights Commission, ‘Help way earlier!’: How Australia can transform child justice to improve safety and wellbeing, 2024, p. 20.
3.2Figure 3.1 shows that Aboriginal and Torres Strait Islander children and young people comprised more than half (57 per cent) of the young people under youth justice supervision. Further, and as noted in Chapter 1, First Nations youth were more likely to be under supervision (23 times) or in detention (28 times), compared to their non-Indigenous counterparts.
3.3This chapter focuses on Aboriginal and Torres Strait Islander children and young people in detention, including:
historical and ongoing over-representation;
the National Agreement on Closing the Gap (National Agreement);
previous inquiries and reviews; and
an alternative non-punitive approach.
Historical and ongoing over-representation
3.4The National Children’s Commissioner, Ms Anne Hollonds, has commented that ‘First Nations children and young people continue to be overrepresented in the criminal justice system, and particularly in detention’.
3.5Most stakeholders agreed and attributed the over-representation to historical and ongoing factors. The Coalition of Peaks, a representative body of more than 80 Aboriginal and Torres Strait Islander community-controlled peak organisations and members, submitted that the over-representation is due to ‘deliberate and neglectful’ policy and practice, as well as the continuing effects of colonisation:
The alarmingly high rates of overrepresentation of Aboriginal and Torres Strait Islander children in the youth justice and incarceration system is a direct result of deliberate and neglectful Commonwealth, state and territory policy and practice over many decades, and the ongoing effects of colonisation, including systemic racism, intergenerational trauma and entrenched disadvantage.
3.6SNAICC—National Voice for our Children (SNAICC) agreed that Aboriginal and Torres Strait Islander children and young people who become involved in the child justice system often experience the risk factors that drive over-representation in the system:
Aboriginal and Torres Strait Islander children that come into contact with the justice system often experience a number of risk factors, including the ongoing impacts of colonisation, racism, overt and systemic discrimination, intergenerational trauma experienced by Stolen Generations survivors and descendants, socio-economic inequities and the experience of poverty and socioeconomic disadvantage [see ‘Social determinants of justice’, Chapter 2]. It is these risk factors which drive over-representation in the justice system.
3.7SNAICC added that the over-representation represents an ‘acute and pressing challenge’, with the number of First Nations youth involved with the child justice system exceeding that of their non-Indigenous counterparts. However:
This trend is not new. Aboriginal and Torres Strait Islander children have been disproportionately represented at all stages in child justice systems for many decades now.
Social determinants of justice
3.8Submitters and witnesses commented upon particular risk factors. For example, Maurice Blackburn noted ‘early abuse, violence and trauma’:
Research has found that exposure to maltreatment in childhood increases the likelihood of future criminal activity by 50 percent. Studies have also found that more than half of incarcerated young people have experienced domestic violence.
3.9This section of the report focuses upon two risk factors: systemic racism and discrimination in the broader social determinants of justice, and out-of-home care in the social, economic, environmental and political context (see Figure 2.1).
Systemic racism and discrimination
3.10Several stakeholders argued that there is a racial bias in the child justice system, which significantly contributes to the over-representation of Aboriginal and Torres Strait Islander children and young people in youth detention. TheAustralian Youth Affairs Coalition (AYAC) stated that this bias exists at almost every point of contact:
Compared with their non-Indigenous counterparts, First Nations young people are more likely to be arrested and charged (rather than receive a caution or other diversion), to have bail refused, and to be sentenced to imprisonment (even when controlling for offence type and prior offending)…[O]nly so much can be achieved in reducing rates of First Nations young people in detention “without a change in the attitude and practices of law enforcement”.
3.11The Aboriginal Legal Service of Western Australia (ALSWA) illustrated this argument with reference to police practices in Western Australia, as follows:
WA Police are the primary gate keepers to the criminal justice system, and hold the primary discretion with respect to who enters the formal justice system. In every Australian jurisdiction, the proportion of Aboriginal young people who are diverted away from formal court proceedings by police is less than the proportion of non-Aboriginal young people. In 2017, a report by the Western Australian Auditor General found that 35% of Aboriginal young people were diverted compared to 58% of non-Aboriginal young people…
In Western Australia, the Young Offenders Act 1994 (WA) provides police with discretionary powers to divert alleged young offenders from court proceedings by way of a caution or referral to a Juvenile Justice Team… Police are to prefer the use of a caution over charging a young person unless the number of previous charges or cautions the young person has received would make doing so inappropriate. When determining the appropriateness of a caution, the seriousness of the alleged offence and of any previous offences is to be considered...
Despite these provisions, the general principles underpinning the Young Offenders Act 1994 (WA), and years of highlighting the unequal treatment of Aboriginal young people, ALSWA continues to represent young people in court facing charges of a very minor nature. In many instances such charges bring young people before the court for the first time; in others, they bring young people back before the courts on a more frequent basis.
3.12The ALSWA provided 10 case examples to illustrate its arguments, including the following two examples:
In 2006, a 16-year-old Aboriginal boy from an outer regional area attempted to commit suicide by throwing himself in front of a moving vehicle. Theattempt was unsuccessful. The police were called and arrested the boy. The boy was charged with damaging the vehicle. At the time of the attempt the boy had a visible scar on his neck from a previous attempted suicide when he tried to slash his throat with a knife. The charge was later withdrawn, but only after ALSWA made numerous representations to police.
In 2024, a 13-year-old Aboriginal girl was arrested and charged with stealing a ‘paddle pop’ ice cream valued at $4.50 from a convenience store. The girl was in the care of the Department of Communities – Child Protection and had diagnoses of [fetal alcohol spectrum disorder, FASD] and [attention deficit hyperactivity disorder]. Although the charge has now been discontinued, this girl spent over six weeks on bail before the charge was discontinued by the prosecution.
3.13The Australian Capital Territory (ACT) Aboriginal and Torres Strait Islander Children and Young People Commissioner, Ms Vanessa Turnbull-Roberts, confirmed that she had heard similar reports in her jurisdiction:
I hear alarming reports from First Nations young people, including those in residential care, that they are targeted by ACT Policing and are often not given the benefits of restorative justice approaches that are made available to non-Indigenous young people. First Nations young people report high levels of racism and negative interactions in their dealings with our police force which is provided in the ACT by the Australian Federal Police.
3.14The Northern Territory (NT) Anti-Discrimination Commission submitted that ‘systemic racism needs to be acknowledged as a primary cause of the overrepresentation of Aboriginal children in the youth justice system’. Itreferenced a recent consultation report by the NT Children’s Commissioner, Ms Shahleena Musk, entitled “It’s up to EVERYONE to call it out”, in which children and young people described racism as pervasive and affecting many aspects of their lives:
Children and young people are acutely aware of how they are perceived by members of the public and what is being said about them. They told us that what they see, hear and witness in the news, in public spaces and on social media, makes them feel unwanted and unwelcome...We all have a duty to prevent racism. We must listen, we must act and we must work together to call racism out and stamp it out. Racism is harmful and it must be taken seriously.
3.15The Coalition of Peaks noted the 2024 Productivity Commission (PC) study report entitled Review of the National Agreement on Closing the Gap (Review of the National Agreement), which found that racism remains deeply entrenched throughout government organisations. It submitted:
Governments have not fully grasped the scale and change required to their systems, culture, operations and ways of working, and a fundamental rethink is needed to drive deep and enduring system-level and whole-of-government change. The Productivity Commission Review also noted that both interpersonal and institutional racism remains a serious and widespread problem, particularly in the criminal justice, child protection and health systems.
3.16Commissioner Natalie Lewis from the Queensland Family and Child Commission shared the view of the PC that government organisations have given comparatively little, or no, attention to their commitment to identify and call out institutional racism and unconscious bias:
There has been an inability or unwillingness to name and address the structural and systemic racism and take direct action to acknowledge and end discrimination experienced by Aboriginal and Torres Strait Islander people in contact with the criminal justice system (police, courts and institutions) that has endured since colonisation.
Out-of-home care
3.17The AIHW reported that, of the 4575 Aboriginal and Torres Strait Islander children and young people in detention in 2022–23, three in four (76 per cent) had interacted with the child protection system, compared to 55 per cent for their non-Indigenous counterparts (also see Figure 2.2).
3.18SNAICC submitted that ‘there is a clear association between the over-representation of Aboriginal and Torres Strait Islander children in child justice systems, and over-representation in child protection’. It concluded that ‘this association indicates that reform to child justice cannot be undertaken in isolation to reform to child protection systems’.
3.19SNAICC especially highlighted that residential care settings—where children and young people live in a house with onsite staff—are particularly notable for the criminalisation of First Nations youth:
In residential care settings, it is common for police to be involved in disciplinary responses that otherwise would have been handled in the family. This pattern has become so recognisable and consistent that it has its own term: ‘care criminalisation.’ This is the criminalisation and incarceration at disproportionate rates of children in out-of-home care, particularly Aboriginal and Torres Strait Islander children.
3.20The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) suggested that the issue of ‘care criminalisation’ and the over-representation of First Nations children and young people in out-of-home care should be thoroughly investigated, as a pipeline to the criminal justice system:
NATSILS considers that addressing the overrepresentation of Aboriginal and Torres Strait Islander children in [out-of-home care] will address the overrepresentation of Aboriginal and Torres Strait Islander children in our prisons.
3.21Ms Nerita Waight, Deputy Chair of NATSILS, added:
A pressing issue for us is that solutions for this have been posited time and time again. They don't just include raising the age. They obviously include funding appropriate, therapeutic, community-determined solutions. But we just can't seem to get over that barrier. We also know that there are very successful approaches of partnering Aboriginal led legal services for children with holistic supports, which have been successful in breaking that link between care and incarceration.
National Agreement on Closing the Gap
3.22The National Agreement aims to ‘overcome the entrenched inequality faced by too many Aboriginal and Torres Strait Islander people so that their life outcomes are equal to all Australians’. This agreement—signed by all Australian governments and the Coalition of Peaks in July 2020—commits the parties to four Priority Reforms that change the way governments work to accelerate improvements in the lives of First Nations peoples.
3.23Under the National Agreement, five policy partnerships were established to drive key actions for priority outcome areas, the most relevant of the partnerships being the Justice Policy Partnership (JPP). The first objective of the JPP is to:
Establish a joined-up approach between all governments and Aboriginal and Torres Strait Islander representatives to address the overrepresentation of Aboriginal and Torres Strait Islander adults and youth in incarceration.
3.24The Attorney-General’s Department (AGD) advised that, in June 2023, the JPP’s Strategic Framework was agreed and has now progressed:
The JPP is now finalising its Implementation Roadmap to implement the Strategic Framework, which sets out four priority initiatives of high impact and time criticality, including the development of anti-racism strategies, cross sector partnerships, a national sector-strengthening plan and justice partnerships. Co-Leads have been nominated to progress each of these initiatives and tasked with drafting Delivery Plans which outline the work to be completed over the course of the next 12 months. In February 2024, the government committed further funding of $10.7 million over four years from 2024-25 for the JPP. This will ensure the Partnership can continue and can commence implementation of its Strategic Framework.
3.25By way of update, Ms Esther Bogaart, First Assistant Secretary, First Nations and Justice Policy Division at the AGD, advised that there is now an implementation roadmap and work is progressing on a range of projects:
We are, as a group, developing a national anti-racism strategy to address racism experienced by Aboriginal and Torres Strait Islander peoples within the justice system. We're developing a national sector-strengthening plan to strengthen the Aboriginal and Torres Strait Islander community-controlled justice sector. We're developing justice partnerships between the national JPP and jurisdictional partnerships. We're also establishing new cross-sector partnerships between the JPP and other sectors.
3.26Aside from progress made by the JPP, the Coalition of Peaks informed the inquiry that there is still ‘widespread government decision making in youth justice that falls well short of Priority Reform One [Formal Partnerships and Shared Decision-making] and the ambition of the JPP’.
3.27The Law Council of Australia (Law Council) echoed this concern:
Since its establishment in 2021, the Law Council has received disappointing feedback from First Nations legal and justice experts who participate in the JPP who say that it is not being effectively used by state and territory government participants and that there has been a real lack of broader commitment to changing how government operates in this area…The JPP is the major federalised mechanism for tackling Closing the Gap justice targets for First Nations communities between the federal government, state and territory governments, and First Nations communities. Feedback provided to us, however, is that the JPP is not operating in the way envisaged when it first came to fruition as a lever for open dialogue and evidence-based change.
Broader discussions nationally about youth justice appear to be occurring in parallel with and separate from JPP discussions, notwithstanding the overwhelming evidence of the hyper-incarceration of Indigenous children and young people…
Now, nearing the end of 2024, the gulf between some state and territory ‘tough on crime’ policies and the commitment to change outlined in the Closing the Gap Agreement is widening.
The disproportionate overrepresentation of Indigenous children in custodial settings is one of the primary focal points of the JPP, and yet the Productivity Commission has not only found that some governments are ‘ignoring’ their commitments under the Closing the Gap Agreement but are ‘actively putting the truck in reverse’.
3.28Ms Priya Devendran, Senior Policy Officer for First Nations Advocates Against Family Violence, said:
…what we see in terms of this lack of implementation or lack of commitment to the JPP is an example of the continued politicisation of the lived experiences and the plight of our Aboriginal and Torres Strait Islander communities…Can more be done? More can always be done to ensure that there is an adherence to the commitments made via mechanisms like the JPP…To see it sometimes fall flat or not be committed to at a state level is quite disappointing. The question remains: 'How can the federal government, regardless of who is in power, ensure stronger alignment and a commitment by the states to do this?' If we can ensure that commitment, we will see less of that politicisation at the state level.
3.29SNAICC’s Ms Liddle described the theory behind the JPP as ‘sound’ but stated that ‘implementation is a whole other story’. She contrasted the JPP with another of the policy partnerships:
…we had significant structural supports underneath [the Early Childhood Care and Development Policy Partnership]…It had a national plan—that national plan being [the Safe and Supported framework, see ‘Target 12’ below] , which extends over 10 years and effectively is responsible for where the Commonwealth invests its dollars when working with states and territories on the ground. So it has a national plan that can drive and help implement that, whereas the Justice Policy Partnership does not have access to a framework that brings everybody together...[U]ntil you can come up with a national plan…you’re going to be struggling.
3.30NATSILS recognised that the JPP has ‘done some incredible work’ but Ms Waight noted that the JPP does not operate in a vacuum:
…it's important to remember that the JPP doesn't operate in a vacuum. Political leaders continue to ignore expert advice and prioritise populist tough-on-crime narratives over evidence-based justice reform. With the absence of political will and genuine partnership, and with the disregard for Aboriginal and Torres Strait Islander expertise in favour of short-term electoral gains and problematic policy platforms, we continue to face hurdle after hurdle. And continuing on that path really only encourages regression against the purposes of the National Agreement on Closing the Gap and the JPP.
3.31The Hon John Dowd, Spokesperson for Justice Action and the Community Justice Coalition, as well as a former NSW Attorney-General, stated that ‘you can’t force governments to do anything’. Instead, ‘it's a matter of having at least one Attorney-General or minister concerned be educated and lead the others’.
Target 11
3.32The National Agreement has 19 national socio-economic targets across areas that impact life outcomes for Aboriginal and Torres Strait Islander peoples, including:
Outcome 11
Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system.
Target 11: By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by at least 30 per cent.
3.33UNICEF Australia referenced the PC’s Closing the Gap, Annual Data Compilation Report, which, on 31 July 2024, reported that ‘Aboriginal and Torres Strait Islander young people continue to be overrepresented in the criminal justice system – there has been no progress made’.
3.34The Australian Medical Association (AMA) noted this lack of progress and stated that the disproportionately high rates of incarceration must be ‘redressed through fundamental policy and legislative reform, and investment into community-driven diversionary and rehabilitation programs’.
3.35Similarly, NLA stated:
…achieving [Target 11] requires comprehensive reforms that address the root causes of overincarceration, such as poverty, inadequate access to education and healthcare, and the breakdown of cultural and family structures. Culturally specific, community-led diversion programs and initiatives…should be prioritised as alternatives to detention.
3.36The National Association for Prevention of Child Abuse and Neglect (NAPCAN) Youth Speak Out Council agreed that targeted policy interventions are essential:
These strategies should not only confront the ongoing impacts of colonialism but also celebrate and elevate the strengths and richness of Indigenous cultures. For instance, practices such as restorative justice, which involves the participation of Elders, serve as effective diversion and intervention measures. By integrating these culturally informed approaches, we can foster a justice system that values healing and rehabilitation while simultaneously acknowledging the resilience and wisdom inherent in Indigenous traditions.
3.37In evidence, NLA Director Ms Annmarie Lumsden suggested that one way in which to help achieve Target 11 would be to ‘tie this to jurisdictional resourcing so there are consequences for states and territories where targets are not met’. In particular, Ms Lumsden identified intergovernmental agreements as a vehicle in which to embed obligations: ‘related obligations of state governments and Closing the Gap targets should be embedded in intergovernmental agreements, including those related to funding’.
3.38Ms Patricia Turner, Lead Convenor of the Coalition of Peaks, advised that the Joint Council on Closing the Gap—which has an ongoing role in monitoring performance and implementation of all parties’ actions under the National Agreement—sought to escalate Target 11 as an urgent priority. Ms Turner conceded that it is very disappointing when state or territory governments (such as Queensland) do not recognise ‘the importance and the centrality of the National Agreement’.
3.39The AGD submitted that the Australian government is working with states and territories to address the overincarceration of Aboriginal and Torres Strait Islander children and young people, including by working in partnership with First Nations peoples through the JPP to address Target 11 of the National Agreement.
Target 12
3.40The Safe and Supported, National Framework for Protecting Australia’s Children 2021–2031 (the Safe and Supported framework) aims to reduce child abuse and neglect, and their intergenerational impacts, with the following shared vision of Australian governments, First Nations leaders and the non-government sector:
Children and young people in Australia have the right to grow up safe, connected and supported in their family, community and culture. They have the right to grow up in an environment that enables them to reach their full potential.
3.41The Safe and Supported framework is the key strategy to support progress under Target 12 of the National Agreement: ‘by 2031, reduce the rate of overrepresentation of Aboriginal and Torres Strait Islander children (0–17 years old) in out-of-home care by 45%’.
3.42Similar to Target 11, the PC reported that Target 12 is not being met and nationally, based on progress from the baseline, ‘the target is worsening’:
Nationally in 2023, the rate of Aboriginal and Torres Strait Islander children aged 0–17 years in out‑of‑home care was 57.2 per 1,000 children in the Aboriginal and Torres Strait Islander population.
The 2023 rate is below the rate in 2021 (57.6 per 1,000 children) but it is an increase from 54.2 per 1,000 children in 2019 (the baseline year).
3.43SNAICC submitted that ‘progress towards this target is off-track and unlikely to be met without significant transformational change by all governments of child protection systems, policy and practice’.
Priority Reform 2 – Building the community-controlled sector
3.44In addition to Targets 11 and 12 of the National Agreement, stakeholders commented on Priority Reforms 2–4. In relation to Priority Reform 2, clause 44 recognises that ‘Aboriginal and Torres Strait Islander community control is an act of self-determination’, which was also reflected in the Safe and Supported framework: ‘enacting self-determination is critical to designing and implementing effective child justice policies that achieve better outcomes for Aboriginal and Torres Strait Islander children’.
3.45SNAICC supported the full enactment of self-determination in all legislation, policies, and strategies. It welcomed the announcement of an independent National Commissioner for Aboriginal and Torres Strait Islander Children and Young People:
[This] is an exciting and historic step to realising self-determined approaches to tackle the over-representation of Aboriginal and Torres Strait Islander young people in out-of-home care, and youth detention. It will be critical to progress legislation to further strengthen the powers and independence of the National Commissioner.
3.46While Priority Reform 2 recognises that ‘Aboriginal and Torres Strait Islander community-controlled services are better for Aboriginal and Torres Strait Islander people’, the Coalition of Peaks argued that governments have not delivered on their commitment to build this sector:
…the [Aboriginal Community Controlled Organisations, ACCO] sector remains chronically underfunded by governments, often in favour of funding announcements that are short-sighted and serve to entrench disadvantage and poor outcomes. All governments must urgently and significantly increase funding to ACCOs.
3.47Ms Devendran from First Nations Advocates Against Family Violence, concurred:
We need governments at all levels to commit to long-term investment in Aboriginal Community Controlled Organisations and youth justice responses, including early intervention and family violence prevention, and to ensure First Nations voices are at the centre of youth justice reform. Wecannot afford tokenistic consultation practices that ignore the expectations of communities. We have to end the reliance on incarceration as the default and replace it with community-led, trauma-informed and culturally safe alternatives that give our children the support they need. Thereality is this: we cannot imprison our way out of this crisis.
3.48NATSILS argued that one example of this underfunding is in the provision of legal assistance to Aboriginal and Torres Strait Islander Legal Services (ATSILS). It called for these ACCOs to be provided with immediate, needs-based, and sustained funding:
ATSILS are well placed to know what our children and young people need. ATSILS provide culturally safe legal services across Australia and wraparound supports to our children. A popular misconception is the ATSILS just deliver legal services. ATSILS have expertise in delivering evidence-based wraparound supports to our people encountering the criminal justice system…Without urgent and significant investment, ATSILS will be unable to meet the rising demand for legal assistance in light of the worsening youth justice policies across all states and territories, putting more children at risk of incarceration and long-term disadvantage.
Priority Reform 3 – Transforming government organisations
3.49Priority Reform 3 of the National Agreement commits governments to systemic and structural transformation of mainstream government organisations to improve accountability and respond to the needs of Aboriginal and Torres Strait Islander people.
3.50As noted earlier (paragraphs 3.15–3.16), the PC recently reported that the transformation of government organisations has ‘barely begun’:
The Agreement requires systemic and structural transformation of mainstream government agencies and institutions…There is a stark absence of whole-of-government or whole-of-organisation strategies for driving and delivering transformation in line with Priority Reform 3. We are yet to identify a government organisation that has articulated a clear vision for what transformation looks like, adopted a strategy to achieve that vision, and tracked the impact of actions within the organisation (and in the services that it funds) toward that vision…Governments’ efforts to date have largely focused on small-scale, individual actions (such as cultural capability training and workforce strategies to increase employment of Aboriginal and Torres Strait Islander people in the public sector), rather than system-level changes to policies and practices.
3.51The Coalition of Peaks considered that Australian governments still do not understand what is required of them under Priority Reform 3. In addition, nearly five years after the National Agreement was signed, the commitment to establish an independent mechanism(s) to support, monitor, and report on the transformation of mainstream agencies and institutions has still not been implemented.
Priority Reform 4 – Shared access to data and information at a regional level
3.52Priority Reform 4 of the National Agreement aims to provide First Nations people with access to, and the capability to use, locally relevant data and information, to set and monitor the implementation of efforts to close the gap, priorities and to drive their own development.
3.53According to the PC, as at January 2024, Australian governments are not enabling Aboriginal and Torres Strait Islander-led data:
Priority Reform 4 requires governments to implement large-scale changes to data systems and practices to enable Aboriginal and Torres Strait Islander people to participate in decision-making about data and to use data for their own purposes. Governments have made little progress on enacting these changes – Aboriginal and Torres Strait Islander organisations are continuing to report difficulties accessing government-held data, and often the data that is collected by government agencies does not reflect the realities of, or hold meaning for, Aboriginal and Torres Strait Islander people.
3.54The PC suggested that one fundamental complication might be that there is no common understanding of what Priority Reform 4 is trying to achieve:
One of the reasons why there has been limited progress in implementing large-scale changes to data systems and practices in line with Priority Reform 4 could be that there is not a shared understanding of what Priority Reform 4 is trying to achieve. The Commission heard that Aboriginal and Torres Strait Islander people view Indigenous Data Sovereignty as the purpose of Priority Reform 4, but this is not clearly reflected in the text of the Agreement, nor in many governments’ statements of what they are doing (in implementation plans, for example). Without clarity on this, there is unlikely to be meaningful and sustained progress on Priority Reform 4.
3.55The NATSILS submitted that improved data collection is crucial to understanding and addressing the over-incarceration of First Nations youth, However, there is no national entity to oversee the collection, coordination, and quality of data in Australia’s child justice system:
NATSILS recommends that the Australian Government take a leadership role in establishing a nationally consistent data collection mechanism. Thiscould be facilitated through the Australian Institute of Criminology or a similar body, ensuring that the mechanism is developed in genuine partnership with Aboriginal and Torres Strait Islander organisations. Governance must embed Indigenous Data Sovereignty principles to ensure that Aboriginal and Torres Strait Islander people have control over the data, its collection, and its use, in a way that reflects their rights and interests.
3.56The Coalition of Peaks emphasised that disaggregated data and information is the most useful to communities and ACCOs, as it provides a more comprehensive picture of what is happening in communities and supports better decision-making: ‘it remains particularly challenging to obtain relevant, disaggregated data relating to children from police and justice services’.
3.57The Coalition of Peaks considered that Priority Reforms 1–4 must be truly embedded in governments’ decision-making processes, to close the gap and ‘begin to turn the tide on the national youth justice and incarceration crisis’. Itquoted the PC’s overarching finding from the Review of the National Agreement:
Despite some pockets of good practice, progress in implementing the Agreement’s Priority Reforms has, for the most part, been weak and reflects tweaks to, or actions overlayed onto, business-as-usual approaches. Thedisparate actions and ad hoc changes have not led to improvements that are noticeable and meaningful for Aboriginal and Torres Strait Islander people. This raises questions about whether governments have fully grasped the scale of change required to their systems, operations and ways of working to deliver the unprecedented shift they have committed to.
United Nations Declaration on the Rights of Indigenous Peoples
3.58The Australian Human Rights Commission submitted that the United Nations Declaration on the Rights of Indigenous People (UNDRIP) establishes a universal framework of minimum standards for the survival, dignity and well-being of Indigenous peoples, and it elaborates on existing human rights standards and fundamental freedoms as they apply to Indigenous peoples.
3.59Many submitters and witnesses argued that the detention of Aboriginal and Torres Strait Islander children and young people violates international human rights standards (seeChapter 4), including under the UNDRIP, for example, Article 7 which provides:
Article 7
1.Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.
2.Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.
3.60SNAICC noted that, while Australia has signed the UNDRIP, the Australian government has referred to the declaration as ‘non-legally binding’ and has ‘done little to incorporate the rights recognised within it [into] Australian [law]’. It argued:
Aboriginal and Torres Strait Islander children’s rights include those owed to all children as well as their unique rights as Indigenous Peoples…[F]or those rights to be practically realised and protected in Australia, SNAICC believes that the Commonwealth Government should legislate a federal Human Rights Act which incorporates and gives full effect to the distinctive rights of Aboriginal and Torres Strait Islander children.
3.61Similarly, UNICEF Australia submitted:
The incarceration of Aboriginal and Torres Strait Islander children often violates international human rights standards, including the UN Convention on the Rights of the Child and the [UNDRIP]. These children deserve the opportunity to thrive within their communities, not to be further marginalised through incarceration.
Previous inquiries and reviews
3.62Stakeholders noted that previous inquiries and reviews have specifically examined Aboriginal and Torres Strait Islander people’s over-representation in the criminal justice, child justice and child protection systems.
3.63The Royal Commission into Aboriginal Deaths in Custody (RCIADIC, 1987–1991), the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1995–1997), the Royal Commission into the Protection and Detention of Children in the Northern Territory (2016–2017) and the Yoorrook Justice Commission (2023) were particularly noted.
3.64The second of these—the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families—produced the Bringing them home report, whose findings and recommendations aimed to address systemic issues faced by First Nations children and families.
3.65Professor George Newhouse, Principal Solicitor and Chief Executive Officer of the National Justice Project (NJP) emphasised that the RCIADIC set out a road map 35 years ago without any action having been taken to implement important recommendations:
…the royal commission made a recommendation, recommendation 62, regarding young Aboriginal people in the juvenile justice system. It's worth reading. The royal commission recommended consultation with appropriate Aboriginal organisations, to make use of the services of Aboriginal organisations and consultation with local Aboriginal organisations about implementation of policies. They also recommended establishing an Aboriginal justice advisory committee in each state to provide the state with information on the views of Aboriginal people. Itrecommended imprisonment as a last resort. That's recommendation 92, which states that governments legislate to enforce the principle that imprisonment should only be used as a sanction of last resort. Ourgovernments have done exactly the opposite.
3.66NATSILS highlighted a selection of inquiries and reviews, noting that many of their recommendations have not been implemented:
In 1991, the Royal Commission into Aboriginal Deaths in Custody made 339 recommendations, many of which relate to the child justice system, most of which have still not been implemented. Recommendation 239, for example, calls for legislation and police standing orders to be amended to ensure police officers do not exercise their powers of arrest in relation to Aboriginal children beyond a minimal requirement.
In 1997, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander children from their families made 54 recommendations, including National Standards Legislation for Juvenile Justice, this has still not been implemented.
…
In 2018, the Australian Law Reform Commission ‘Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’ includes 32 recommendations designed to reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander peoples and improve community safety. Governments are yet to implement these recommendations.
In 2019, UN [Office of the United Nations High Commissioner for Human Rights’] Committee on the Rights of the Child highlighted significant concerns with Australia’s implementation of the UNCRC, particularly in the administration of child justice and related domains. Governments are yet to formally implement or respond to its recommendations.
In 2024, the Children’s Commissioner handed down the ‘'Help way earlier!’ How Australia can transform child justice to improve safety and wellbeing’ report which includes 24 recommendations to specifically improve the youth justice systems. Government has not announced any plans to formally respond to or implement those recommendations.
Criminal justice outcomes continue to worsen for our people and Governments continue to ignore reports and inquiries, treating youth justice as a political point scoring football – while lives hang in the balance.
3.67The Coalition of Peaks stated that the child justice system continues to focus on ‘late, punitive and crisis-driven responses, often based on ill-informed and reactionary ‘tough on crime’ politics’. It advised that this approach is not evidence-based and there should instead be holistic, child-focused, trauma-informed and dignity-affirming preventative practice and early intervention responses:
Governments must work in partnership with Aboriginal and Torres Strait Islander people and communities to ensure that Aboriginal and Torres Strait Islander children, their families and communities are receiving holistic, wraparound and culturally safe supports and services.
Alternative non-punitive approach
3.68Many submitters and witnesses argued that Australia must adopt a non-punitive approach that addresses the wellbeing and human rights of Aboriginal and Torres Strait Islander children and young people (also see Chapter 2). TheInstitute for Collaborative Race Research submitted:
Children themselves consistently tell us 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. Their statistical story tells us they are among the most marginalised people on this continent, many of whom have faced state violence at every stage of their lives. Youth justice involvement and incarceration is the result of a chain of violence that includes: school and [National Disability Insurance Scheme] exclusion, child protection involvement and criminalisation through police surveillance and public nuisance laws. Instead of providing the supports that children are asking for, the carceral system further intensifies the violence against them through policing, courts and incarceration—finally removing them from their existing support networks in community…The removal and incarceration of children does nothing to address criminalisation and marginalisation.
3.69SNAICC argued that there has been significant and long-term investment in the child justice system in response to concerns about community safety and harm accountability. However, the punitive and carceral approach addresses neither safety nor criminalisation:
…the evidence demonstrates that incarceration has the opposite effect to creating safe communities, and leads to a large majority – around 3 out of 4 children who come into contact with child justice systems – reoffending within 12 months.
3.70Instead:
…community-led and place-based early intervention and prevention services are [an] evidence-based means of bringing down offending rates, including violent offending rates, and making Australian communities stronger and safer…[A] complex and persistent set of socioeconomic drivers cause Aboriginal and Torres Strait Islander children to come into contact with justice systems. Communities will not be made safer without sufficiently addressing and mitigating these drivers. Early intervention and prevention are more likely to contribute to community safety by ensuring that these causes of offending are addressed and that cycles of offending are broken. They therefore hold substantially more promise for safer communities than punitive justice responses.
Early intervention and prevention
3.71As discussed in Chapter 2, many submitters and witnesses supported alternatives to detention that focus on early intervention, prevention, rehabilitation and support. They argued that services and programs for Aboriginal and Torres Strait Islander children and young people must be designed and delivered by ACCOs, as recognised by Priority Reform 2 in the National Agreement.
Aboriginal Community Controlled Organisations
3.72The Coalition of Peaks summarised many stakeholders’ view on the critical role of ACCOs in addressing the over-incarceration of Aboriginal and Torres Strait Islander children and young people:
Priority Reform Two acknowledges that ACCO services are better for Aboriginal and Torres Strait Islander people, achieve better results, employ more Aboriginal and Torres Strait Islander people and are often preferred over mainstream services.
From this, governments have committed to building formal ACCO sectors to deliver services to support Closing the Gap and must implement measures to increase the proportion of services delivered by ACCOs. Thisincludes by transitioning services previously delivered by government or non-Indigenous organisations to ACCOs.
ACCOs have the knowledge and expertise to design and deliver effective, evidence-based, holistic and wraparound strategies and programs to nurture children, intervene early, and support young people who may come into contact with the youth justice system.
3.73SNAICC considered that, nationally, child justice systems and government investment must be reoriented towards community-based early intervention, preventative, and diversionary options. It emphasised the crucial role of family, community and culture in reform:
Connection to family, community and culture are robust protective factors for Aboriginal and Torres Strait Islander children. Culture is critical to their development, identity and self-esteem, and strengthens their overall health, wellbeing and lifelong capacity to manage intergenerational trauma. Nurturing a child’s culture and connections to family and community supports their social and emotional wellbeing, which is an integral protective factor in child justice prevention.
3.74 NAPCAN’s Youth Speak Out Council agreed that a key benefit of community-led programs is the engagement of children and young people with traditional practices, Elders and community mentors:
Evidence suggests that culturally relevant interventions significantly improve health and wellbeing outcomes for First Nations youth. Forinstance, programs that incorporate cultural practices, such as language, art, and storytelling, foster a sense of identity and belonging, which are critical components of healing and rehabilitation. Cultural approaches to connection can lower recidivism rates by fostering self-esteem and resilience among participants, especially for children and young people who have been disconnected from their communities…Engaging Elders and community mentors can create a bridge between traditional knowledge and contemporary challenges, offering young people guidance and support that is deeply connected to cultural heritage. By prioritising relationships and community involvement, these programs can help young people reconnect with their identity, reducing [the] feelings of isolation often experienced in the justice system.
3.75Ms Zoë Robinson, Advocate for Children and Young People (NSW), agreed that connection to culture is essential:
The First Nations children and young people who I have heard from have emphasised that connection to culture is something that makes them feel happy and welcome…Those in youth justice centres spoke highly of cultural programs through which they learned dance, music and language, and stressed that they would like more opportunities to connect with community and culture on the outside.
Programs and services
3.76Submitters and witnesses provided multiple examples of effective First Nations-led programs and services. One commonly cited example was the Maranguka Justice Reinvestment Project (Maranguka), which aims to address the root causes of crime through its Growing our Kids Up Safe, Smart and Strong strategy.
3.77Maranguka advised that it has achieved significant milestones in reducing youth crime and improving community well-being in Bourke:
The KPMG Impact Assessment of the Maranguka Justice Reinvestment Project in 2018 highlighted several key outcomes between the years 2016 and 2017:
A 38% reduction in charges across the top five juvenile offence categories.
A 23% reduction in reported incidents of domestic violence.
A 31% increase in retention rate for Year 12 students.
These outcomes demonstrate the potential and effectiveness of the Maranguka approach and the capacity for similar initiatives to achieve positive results in other communities.
KPMG estimated that the gross impact of the changes in Bourke in 2017 was worth $3.1 million, with approximately two-thirds of this impact associated with the justice system. The impact estimate achieved was 5 times greater than the operational costs of Maranguka that year.
3.78The NJP and the Jumbunna Institute for Indigenous Education and Research (Jumbunna) supported programs like Maranguka: ‘investing in similar initiatives can disrupt the cycle of offending before it leads to incarceration’.
Comparable and sustainable funding
3.79As indicated earlier (paragraphs 3.46–3.47), submitters and witnesses expressed concern about government investment in ACCOs. The Coalition of Peaks stated that this investment is critical to ‘the delivery of services to Aboriginal and Torres Strait Islander children, including those that are at risk of entering into, or are in, the youth justice and incarceration system’.
3.80However, SNAICC submitted that there is a noticeable funding disparity between ACCOs and mainstream organisations:
For decades, ACCOs have been delivering holistic, integrated and culturally safe child and family early intervention services proven to improve children’s developmental trajectories and strengthen Aboriginal and Torres Strait Islander families. The culturally appropriate and holistic way that ACCOs provide services make them best placed to meet the needs of children and families and provide early support that prevent contact with tertiary systems [such as the child justice system]. Despite this, ACCOs continue to receive far less funding for these services nationally than non-Indigenous organisations.
3.81Some submitters especially noted specific and much-needed services provided by ACCOs to Aboriginal and Torres Strait Islander children and young people. For example, the NJP and Jumbunna highlighted the provision of post-detention mental healthcare services, which is a particular concern for youth in detention (see Chapter 2):
Culturally appropriate, trauma-informed mental health services delivered within communities rather than through the justice system are essential to preventing further harm. First Nations community-led organisations are best placed to deliver these services, as they understand the unique social, cultural, and emotional needs of First Nations young people.
3.82SNAICC similarly remarked upon the provision by ACCOs of post-release services that help young people to reintegrate with their communities (such as the Victorian Aboriginal Community Services Association Limited’s Bert Williams Aboriginal Youth Services). It argued that these services are vital, aschild justice system and youth detention facilities are not designed to be therapeutic, healing and rehabilitative:
Aboriginal and Torres Strait Islander children must be appropriately supported while they are in incarceration, and as they are leaving it. Thissupport will enable them to exit the cycle of incarceration, return to their families and communities, and reduce the incidence of crime in Australian communities. Supporting a child’s safe and effective transition out of child justice systems must begin early, and comprise both pre- and post-release supports. Children transitioning out of incarceration face a range of challenges including insecure housing, interrupted education, limited employment opportunities. For many Aboriginal and Torres Strait Islander children, these are exacerbated by experiences of discrimination, social exclusion and adverse mental health and social and emotional wellbeing. Available pre-release therapeutic and healing services do not address the complex and cultural needs of many Aboriginal and Torres Strait Islander children.
3.83SNAICC identified a range of post-release supports—living arrangements, schooling, vocational training, mental health, and social and emotional wellbeing supports—that, it argued, would assist Aboriginal and Torres Strait Islander children and young people to reintegrate into their communities:
Culturally responsive and considered release and transition planning and supports to help young people back into their community will promote healing and decrease the likelihood of future contact with child justice systems. These services should begin immediately during the child’s incarceration, and should be available to children and young people detained on remand regardless of whether they receive a sentence. These services should involve long-term post-release case management for the child and family.
3.84SNAICC stated that ACCO-led therapeutic and healing models would reduce the over-representation of Aboriginal and Torres Strait Islander children in the child justice system, and divert them from reoffending and/or the types of antisocial behaviour that result in contact with the system. This in turn would contribute to safer communities:
…those [objectives] need to be predicated on services provided by ACCOs, which know best how to build the trust and relationships necessary for children and families to feel and know they are supported. They must centre culturally-responsive education, resocialisation and reintegration, and mental health and social and emotional wellbeing supports.
Diversionary services
3.85As discussed in Chapter 2, submitters and witnesses argued that, rather than continue with a carceral child justice system, Australian governments must prioritise diversion. The Law Council submitted that this is particularly relevant to Aboriginal and Torres Strait Islander children and young people:
The Law Council has been a long-standing and vocal advocate for child justice reform, based on evidence-based policy making, and preventative, diversionary, multi-portfolio responses that address the underlying needs of Australia’s children. This is of paramount importance for First Nations children, where it has been statistically proven that these children bear the brunt of a failure in Australia’s policies to support their diversion and rehabilitation away from the criminal justice system [also see ‘Systemic Racism’ above].
3.86The AMA recognised the importance of diversionary and justice reinvestment programs that are developed and led at local levels by Aboriginal and Torres Strait Islander communities: ‘these programs support young people to thrive and avoid the cycle of reoffence and incarceration’.
3.87SNAICC stated, however, that ‘community-based diversion is underutilised for Aboriginal and Torres Strait Islander Children across Australia’. Itreferenced the Victorian Commission for Children and Young People’s 2021 Our youth, our way: Inquiry into the over-representation of Aboriginal children and young people in the Victorian youth justice system (Our Youth, Our Way inquiry).
3.88In its submission, the Victorian Commission for Children and Young People summarised a key finding from its report, that is, there must be legislative change to require decision-makers in the child justice system to prioritise early intervention and diversionary processes:
Throughout the Our youth, our way inquiry, Aboriginal children and young people, communities and workers consistently referred to the absence of effective early intervention and support across a range of needs. These supports could have addressed causal factors driving offending behaviour and prevented young people’s entry into the youth justice system. In some cases, there were no early supports available at all, while in others, services were at capacity or inaccessible due to geographical distance. Some services, particularly substance misuse support services, were restricted to older children and young people, meaning that younger age groups could not access the interventions and supports they needed. Our youth, our way found that the youth justice system disproportionately focuses on late, punitive responses to offending behaviour and recommends legislative change to require youth justice system decision-makers to prioritise early intervention and diversionary processes at all points of the young person’s progression through the youth justice system.
3.89Similar to early intervention and prevention (see ‘Comparable and sustainable funding’), SNAICC voiced a common view that Australian governments must increase funding for diversion services for Aboriginal and Torres Strait Islander children and young people at risk of contact with the criminal justice system. Itargued that the lack of systemic funding for ACCO-led diversion services is leading to service gaps in many communities, with children having no recourse to a culturally safe service to divert them back into their communities:
ACCOs are best placed to deliver culturally appropriate diversionary programs and require appropriate funding to provide robust, therapeutic and holistic diversionary support. Funding is also required for ACCOs to connect children effectively with ATSILS and relevant legal supports services that can argue for diversionary alternatives after apprehension. ACCO child and family services are also critical in bridging gaps between Aboriginal and Torres Strait Islander families and the legal system, and ACCOs can play a crucial role implementing diversionary programs and supporting children’s and families’ engagement with judicial systems.
3.90The AGD reiterated that the Australian government is working to address the over-incarceration of Aboriginal and Torres Strait Islander children and young people, by establishing a National Justice Reinvestment Unit to empower First Nations communities to identify local initiatives to improve justice outcome and address the drivers of contact with the child justice system (also see paragraphs 2.80–2.81).
Diversion within law enforcement and the courts
3.91SNAICC advised that, where utilised, diversion has proven successful in decreasing recidivism:
Systematic reviews show that pre-court diversions (through bail) or in-court diversion (as an alternative to criminal sentencing) are associated with a 9-36% decrease in the likelihood of reoffending for children. In the Northern Territory in 2015-16, 35% of children were diverted at the point of coming into contact with police. According to the Royal Commission into the Protection and Detention of Children in the Northern Territory, around 80% of diverted children did not reoffend.
3.92SNAICC stated, however, that ‘Western justice and legal systems are inherently culturally unsafe for Aboriginal and Torres Strait Islander people’. Itssubmission noted Priority Reform 3 of the National Agreement and the results of a Legal Supports Scoping Study, conducted in collaboration with the NATSILS, which highlighted ongoing and broad concerns with cultural competence in many processes and organisations:
[The findings of the Legal Supports Scoping Study] are indicative of the broader challenges faced by Aboriginal and Torres Strait Islander children, young people and families in accessing legal supports. The [study] highlighted the lack of culturally appropriate processes and decision-making in court proceedings, within non-ACCO legal services, and across the broader legal and child protection systems. Specialist courts are one way that integrated, culturally informed support can significantly improve Aboriginal and Torres Strait Islander families’ experiences of court and the resulting outcomes for children and families.
3.93Some submitters identified specialist courts that, they argued, provide a more culturally responsive approach to legal proceedings that involve Aboriginal and Torres Strait Islander children, young people and their families. For example: Marram-Ngala Ganbu (Koori Family Hearing Day in the Children’s Court of Victoria), Winha-nga-nha (Aboriginal and Torres Strait Islander Care List in the NSW Children’s Court at Dubbo) and Dandjoo Bidi-Ak (a specific Court List and courtroom of the Children’s Court of Western Australia).
3.94The AMA submitted:
…systemic reforms like The Koori Court build on the strengths of community and culture, to help divert young people from the path of contact with the legal system, and recidivism. This leads to better outcomes for young people, with support networks in place to assist with diversion away from custodial settings.
3.95Mr James McDougall, Co-Chair of the Australian Child Rights Taskforce, argued that it would be better to completely divert young offenders away from court interactions:
The systems that work most effectively are those that are integrated within a statutory youth justice framework so that a clear priority is given to diversion away from the court system into community-based initiatives. Youth justice conferencing exists in a number of states. It draws on the resources of the community. It provides a better opportunity for victims to be heard within offender mediation systems, and there's no reason why that can't also happen in the circumstances of children and young people offending. It also provides them with opportunities for clear guidance about the impact of their offending behaviour and allows them to see that in a way that the experience of detention does not address. We would argue that there are a number of existing measures which could be implemented, better funded and integrated within statutory youth justice systems to good effect.
3.96SNAICC submitted that the evidence-based specialist courts achieve better outcomes than their mainstream counterparts. Its submission particularly identified interactions between the child justice and child protection systems as an issue that must be and is better addressed in specialist courts:
Current approaches rarely accommodate these needs or demonstrate an understanding of the unique challenges and circumstances of dual order arrangements. As such, there is a need for specialised courts or dedicated court lists, underpinned by specialist knowledge and trauma informed approaches, that will allow for the fulsome consideration of issues impacting these children at all stages of interaction with the court system.
3.97Churchill Fellow, Ms Jennifer Bowles, reflected on how the specialist Children’s Court of Victoria, for example, cannot make orders for Youth Therapeutic Orders, to mandate substance abuse treatment:
…there is an inextricable link between the number of children and young people who offended whilst under the influence of substances eg alcohol, illicit substances. The [Youth Parole Board] Annual Report indicates that for 2022/2023 84% offended whilst under the influence of substances…The current service model in Victoria requires the children and young people to voluntarily engage in substance abuse treatment…It is unsurprising given the nature of dependency, the lack of maturity of the young people and their personal circumstances, that the vast majority of children and young people, particularly those with the most significant, entrenched dependency issues, do not engage voluntarily in treatment…When a young person’s substance abuse is raised in Court, the responses of the young people frequently include ‘I’m not going to counselling’; ‘I enjoy using’; ‘I don’t have a problem. I could stop whenever I want to’; ‘I’ll cut down when I turn 18’. Sadly, rather than stopping or reducing their dependency at 18, they are often on the trajectory for adult imprisonment and the cycle continues.
Access to legal supports and representation
3.98Some stakeholders highlighted that, in addition to specialist courts, Aboriginal and Torres Strait Islander children, young people and their families need accessible legal support and representation to engage effectively with the legal system.
3.99SNAICC argued that legal services are vital for First Nations families to advocate for their rights and to navigate complex statutory systems (such as the child justice and child protection systems):
However, a range of factors prevent Aboriginal and Torres Strait Islander children and families from accessing legal representation and support. These include systemic racism in mainstream legal systems and courts, and mainstream legal services which lack cultural capabilities to provide culturally informed or accessible services for Aboriginal and Torres Strait Islander people.
3.100NLA expressed the view that ‘legal assistance is critical to reducing the number of children and young people in the juvenile justice system and in detention, particularly First Nations children and young people’. It added that ‘the significant overrepresentation of First Nations children and young people in the justice system requires a focus on culturally safe and specialised legal assistance’.
3.101SNAICC submitted that current funding arrangements—under the National Legal Assistance Partnership 2020–25 (expiring on 30 June 2025)—restrict the accessibility of legal supports for Aboriginal and Torres Strait Islander children, young people and their families, including for the delivery of child and youth-focused services that are aligned with community need. It argued that ‘children require consistent, high quality and culturally responsive legal representation at all stages of proceedings. Facilitating this requires investment in legal representation’.