Chapter 4Human rights compliance in the youth justice and detention system
4.1Australia is a party to seven core United Nations (UN) treaties that protect human rights.For children and young people involved in the child justice system, the primary treaty is the CRC, however, other international treaties and instruments also set out relevant rights.
4.2This chapter discusses some of the key human rights in the child justice system:
articles 37, 39 and 40 of the CRC, as well as its Third Optional Protocol;
article 2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and its Optional Protocol (OPCAT); and
national compliance with human rights.
Convention on the Rights of the Child
4.3The CRC is the most widely ratified human rights treaty in the world. Itencompasses the full spectrum of human rights—civil, political, economic, social and cultural—as well as additional rights for children and young people, in recognition of their unique vulnerabilities and developing maturity and capabilities.
4.4In its recent report entitled Help way earlier!’: How Australia can transform child justice to improve safety and wellbeing (the Help way earlier! report), the Australian Human Rights Commission (AHRC) found:
As a federation we have repeatedly ignored our national obligations under the UN Convention on the Rights of the Child [CRC]. We need to recognise the principles in the CRC as a compass to guide our policy decisions, for the wellbeing of Australia’s children and the whole community.
4.5The treaty has four core principles, including the ‘best interests of the child’ (article 3), and the right to survival and development (article 6). Italso sets out specific rights that submitters and witnesses identified as particularly relevant to the inquiry, including:
Article 37
States Parties shall ensure that:
a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
…
Article 39
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
Article 40
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
…
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
No torture or other cruel, inhuman or degrading treatment or punishment
4.6In 2019 the UN Committee on the Rights of the Child expressed its view on article 37(a) of the CRC, emphasising a number of principles and rules that must be observed in all cases of deprivation of liberty, including:
(f)Restraint or force can be used only when the child poses an imminent threat of injury to himself or herself or others, and only when all other means of control have been exhausted.
…
(h)Solitary confinement should not be used for a child.
4.7Many submitters and witnesses asserted that harmful isolation and restraint practices are occurring throughout Australia’s youth detention facilities (also see ‘Abuse and mistreatment’ in Chapter 2). Professor George Newhouse, Principal Solicitor and Chief Executive Officer of the National Justice Project (NJP), provided a current example:
I'm fighting for two children that were locked up for 365 days in solitary confinement. The government of Western Australia has been fighting us for five years. They're using every tactic in the book to delay. This is part of the total institution: they don't want the public to know what happened to these children, and they will fight tooth and nail to defend themselves. But a Supreme Court judge…has already found that method of holding children in solitary to be unlawful [see paragraph 4.10]. They will lose in the end, but they will fight for years to hide the horrors of what's going on in that institution.
4.8TheJustice Reform Initiative supplied illustrations from around the country, including, for example, in Queensland:
Queensland currently has three prisons for children, with Cleveland Youth Detention Centre in Townsville operating as the only centre located outside of Brisbane. Cleveland Youth Detention Centre in particular has received extensive public scrutiny regarding inhumane treatment of children (who are mostly First Nations children), with some describing the conditions ‘like Guantánamo’. There have been widespread reports of children being locked in solitary confinement for extended and repeated periods, primarily as a result of staff shortages. This has resulted in reports of children being denied access to education, rehabilitation programs, and visits (including from service providers).
In June 2023, it was reported that an Aboriginal child with an intellectual disability spent more than 744 days locked in solitary confinement for over 20 hours a day across the two years that they were remanded in the centre. This is just one of many reports of this kind – and these reports are not isolated to Cleveland. Queensland prisons separated [detained] children over 30,000 times in 2021-2022, and over 84% of children who staff separated were First Nations children.
The human rights failures within the Queensland youth justice system extend well beyond the walls of Cleveland Youth Detention Centre. InMarch 2023, the Queensland Government made the decision to override the [Human Rights Act 2019 (Qld)] for the first time since it has been in effect, to implement a raft of punitive changes including bringing in breach of bail as an offence for children.
4.9The Justice Reform Initiative also provided the following example of degrading treatment from the Baxter Youth Detention Centre (New South Wales):
In 2021 the NSW Ombudsman expressed concern to the NSW Government that it was lawful in NSW youth prisons for prison staff to undertake fully naked strip searches of children and young people in prison. TheOmbudsman furnished a special report to parliament detailing a 2019 case involving three children in a youth prison who were subjected to a full strip search in which they were made to completely undress and spread apart their buttocks. The strip searches occurred after Correctional Services NSW (CSNSW) took control of the Baxter Youth Detention Centre following a violent incident at the centre.
The Ombudsman’s report noted that a memorandum of understanding signed between Youth Justice and [CSNSW] allowed for those laws that only permitted partial strip searches to be circumvented. This had the effect of a youth prison becoming legally ‘cloaked’ as an adult prison when [CSNSW] officers have control of it. The Ombudsman recommended legislation to close this loophole to ensure that searches involve the least intrusive search method and involve the removal of no more clothing than is necessary. TheNSW Government has refused to follow this recommendation.
4.10The Australian Human Rights Commission (AHRC) submitted that no jurisdiction prohibits solitary confinement. Further, although there are statutory limitations on the power to isolate a child in a detention facility, these protections vary by jurisdiction. Consequently:
Official inquiries continue to find that children have been impacted by mistreatment in detention, including being subjected to prolonged isolation, across the nation. For example, in June 2022, the Western Australian Inspector of Custodial Services found that children detained in the Intensive Support Unit of Banksia Hill Detention Centre [BHDC] were often being held in conditions akin to solitary confinement and in breach of international human rights agreements. Due to staffing shortages, children were often locked into their cells for most of the day, preventing meaningful social interaction with peers and staff. They faced long periods of alone time in cells that are often in a poor state and are small. This typically led some children to act out and increasingly there were more incidents of children self-harming.
On 11 July 2023, the Supreme Court of Western Australia ruled that three young people were unlawfully locked in their cells at Banksia Hill Detention Centre and Unit 18 at Casuarina Prison for prolonged periods, amounting to solitary confinement. The three children were held in these conditions for a combined total of 167 days in 2022. Justice Tottle found that subjecting children to solitary confinement frequently was not only inconsistent with the Western Australian child justice law, but also with basic notions of the humane treatment of young people, with the capacity to cause immeasurable and lasting damage to an already psychologically vulnerable group. It amounted to a systemic failure caused by a shortage of qualified staff, inadequate infrastructure and a consequent inability to manage detainees with difficult behavioural problems.
4.11Ms Shona Reid, Guardian for Children and Young People (SA), advised that, asan official Training Centre Visitor (TCV), she has witnessed the impacts of the custodial environment on children and young people at South Australia’s Adelaide Youth Training Centre (also known as the Kurlana Tapa Youth Justice Centre), including a high incidence of self-harm:
When a young person is heightened and distressed, it is not uncommon for those behaviours to spiral and be turned inward. In fact, 43% of incidents in 2022-23 involved a young person who either engaged in self-harm behaviour, or where the TCV identified a risk of self-harm through expressing ideation and/or other factors. This figure does not account for the self-harm behaviours and ideation in the lead up to incidents, nor self-harm which staff have not formally recorded as an incident.It is clear that there is something wrong.
4.12TheAustralian Medical Association (AMA) stated that subjecting children and young people to extended periods of isolation in inadequate conditions is ‘simply unacceptable’:
The solitary confinement of children has well-documented negative impacts on health, including psychological effects (anxiety, depression, hallucination, paranoia and suicidal tendencies), cognitive decline (memory problems, difficulty concentrating, confusion) and physical health issues (sleep disturbances, headaches, heart palpitations and the worsening of pre-existing health conditions).The AMA was horrified to hear of cases of children as young as 13 being held in solitary confinement for weeks in Cleveland [Youth] Detention Centre in Queensland, purely due to workforce shortages.
4.13Similarly, the Australian National Preventive Mechanism (ANPM) expressed concerns in relation to isolation practices that lead to severe limitations on meaningful human contact, quality time outside of cells, and access to education, healthcare and legal support:
Compounding our concerns are the links between many uses of isolation and staffing shortages across facilities and jurisdictions. Insufficient staffing has led to increased time children are isolated in their cells – along with various other consequences such as impacting access to healthcare and other support services. Further exacerbating our concerns about the use of isolation is a lack of robust data – or other recordkeeping shortcomings – about the time children spend out of their cells, in lockdown, or experiencing other isolation practices. This impacts external oversight of these practices.
4.14The National Children’s Commissioner, Ms Anne Hollonds, recommended that ‘Australian governments legislate to prohibit solitary confinement practices in child detention facilities, and prohibit the use of isolation as punishment in any circumstance’. National Legal Aid (NLA), among many others, endorsed this recommendation:
To improve the outcomes and ensure the safety of children and young people who are given custodial sentences, governments should commit to:
a. Prevention of harmful isolation and restraint practices, including prohibition of solitary confinement and the use of spit hoods.
Use of restraints or force
4.15Stakeholders commented on the use of ‘restraint or force’ in youth detention facilities. The Aboriginal Legal Service of Western Australia (ALSWA) submitted that children and young people are often subject to the unreasonable use of force. Since 2021, ALSWA has made 35 such complaints about custodial officers in the BHDC and Unit 18: ‘these complaints have related to the use of excessive physical force, chemical agents and restraint techniques such as a three-point restraint and the ‘folding up’ or figure-four hold’.
4.16The ALSWA provided illustrative examples of the use of unreasonable force, noting that Division 4 of Part 8 of the Young Offenders Regulations 1995 (WA) prescribes the use of force: it must be the minimum required to control a detainee’s behaviour in the circumstances; and the circumstances must be that the detainee is presenting a risk of imminent physical injury to themselves or another person. However:
ALSWA has been instructed that [the] use of force occurs in other circumstances, for example if a young person has been disobedient or simply misbehaving. For example, when a young person refused to enter a cell in Unit 18 because the bedding was wet, the following occurred:
[He] instructs that the officers then pushed him to the ground. [He] was unable to prevent his head from hitting the floor because he was handcuffed.One officer…was on top of [him] and held his face against the floor…[His] arms had been pulled behind his back and other officers were holding him down by his legs. [He] was extremely worried that the officers might break his arm and he was screaming and crying in pain.
4.17ALSWA submitted that, in addition, custodial staff often use force against children and young people in degrading and inhuman ways:
An example of this was outlined in a complaint in 2022 regarding a young person’s treatment after a fire had started in one of the wings in Unit 18. Theyoung person had subsequently been escorted outside into a concrete exercise yard, and the complaint read as follows:
The boys were all chained to each other in groups. [The young person] was chained to two other boys, at their ankles. [He] did not have a t-shirt on and so was bare-chested. One of the boys started walking away from the group, and an officer pushed him back. [The young person] was chained to this boy, and this push caused the boy to fall into [the young person] and then they all fell to the ground. An officer…took hold of [the young person’s] handcuffs and dragged him across the concrete floor of the exercise yard. This caused [his] bare chest and back to be scraped and grazed on the concrete floor.
4.18The ALSWA summarised that ‘the extent to which force is used against young people at BHDC and Unit 18 breaches their human rights’, specifically in relation to the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules).
4.19The Jumbunna Institute for Indigenous Education and Research (Jumbunna), amember of the National Ban Spit Hoods Coalition, expressed concern about the use of spit hoods in several jurisdictions, with a specific focus on the Don Dale Youth Detention Centre (Don Dale) in the Northern Territory:
The Royal Commission into the Protection and Detention of Children in the Northern Territory…was sparked by damning visuals exposed in a Four Corners report in 2016. They showed a 13-year-old Aboriginal boy in [Don Dale] strapped to a chair and wearing a spit hood allegedly for almost two hours. Several other young people in Don Dale were similarly hooded, with brute force.
The Royal Commission made 147 findings and 227 recommendations, including banning the use of spit hoods and outlawing their practice, which the Labor NT Government agreed to do following the inquiry. However, they failed to do so, with the newly-elected [County Liberal Party] NT Government overturning a policy ban this year.
4.20Similarly, the NT Council of Social Service submitted:
The degree of non-compliance in NT prison and detention centres with the human rights of children and young people in detention is well documented. This month, regressive changes are due to be made in NT law that will increase non-compliance with human rights. The recently elected NT government has indicated an intention to lower the age of criminal responsibility back to 10 years of age and re-introduce spit hoods in NT youth detention centres.
4.21NLA highlighted that ‘the use of spit hoods creates a significant risk of injury or death to the wearer, with spit hoods implicated in numerous deaths in custody’. It added that the AHRC has successfully campaigned for a prohibition on the use of spit hoods in some jurisdictions (New South Wales and South Australia).
Detention only as a measure of last resort and for the shortest appropriate time
4.22In 2019 the UN Committee on the Rights of the Child reiterated:
The leading principles for the use of deprivation of liberty are: (a) the arrest, detention or imprisonment of a child is to be used only in conformity with the law, only as a measure of last resort and for the shortest appropriate period of time[.]
4.23Several submitters and witnesses commented upon article 37(b) of the CRC, the principle of which is also reflected in the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules). They noted the number of children and young people in detention, which, they argued, is not in the child’s best interest (article 3 of the CRC). NLA reiterated that ‘detention is damaging and criminogenic, serving to entrench young people further in disadvantage’.
4.24Stakeholders also remarked upon the number of children and young people awaiting trial or sentencing (unsentenced detention, also called remand) (seeFigures 1.3 and 4.1).
Figure 4.1Young people in detention on an average day, by legal status and jurisdiction, 2022–23 (rate)
Source: Australian Institute of Health and Welfare, Youth justice in Australia 2022–23, Web report, 28March 2024, p. 27.
4.25In relation to the young people awaiting trial, the Justice Reform Initiative emphasised:
These are children who have not yet been found guilty of the criminal offence with which they have been charged. Remanding a young person in custody is a serious decision that interferes with that young person’s right to liberty, the right to the presumption of innocence and the right not to be punished prior to a finding of guilt.
4.26SNAICC—National Voice for our Children (SNAICC) noted the disproportionate number of Aboriginal and Torres Strait Islander children and young people in unsentenced detention:
…nearly three out of five are Aboriginal or Torres Strait Islander. Of these children, around 60% are released on bail back into their communities. On2021-22 data, 38% of children complete their remand period, of which only 20% are ultimately sentenced by a court to a period of imprisonment.
4.27For further context, Ms Catherine Liddle, Chief Executive Officer of SNAICC, referenced client information received from the North Australian Aboriginal Justice Agency (NAAJA): ‘unpublished data from the [NAAJA] shows that the average child on their case load spends 197 days on remand before they reach their 14th birthday’.
4.28SNAICC contended that the child justice system excessively uses remand for First Nations children and young people:
This is both a violation of their right not to be punished prior to a finding of guilt and risks entrenching children in child justice systems. The overuse of remand is sometimes predicated on unrealistic expectations that remanding child offenders will mitigate risks to the safety of the community, or in some cases the victims of offenses. Actually, there is little evidence that the systematic denial of bail leads to improved community safety or protection.
4.29The Law Council of Australia (Law Council) commented that one fundamental reason for children and young people being remanded into detention is that ‘they have no safe place to live while on bail and there is no appropriate alternative bail accommodation at which to stay’.
4.30NLA and Legal Aid NT representative Mr Nick Espie considered whether an Aboriginal community-controlled detention home would be a suitable alternative to youth detention facilities where there a responsible adult or carer could not be found:
…there's a lot to be said for resourcing programs in various community settings in relation to responsible parenting. It's a reminder that, for a huge number of children in the criminal justice system, their responsible parent is the state or territory government, because they're often children in care, and it's quite often those children who are falling through the gaps even further, and those programs and support services are simply inadequate…[T]he answer to building those supports and those programs, certainly in the Territory and, I'd say, in most other jurisdictions, is resourcing and funding the Aboriginal community controlled sector…[W]e see funding shifting and changing…[W]hat generally happens is courts and other services look around for adequate supports. The cost then gets shifted to the Aboriginal community-controlled sector, which retrofits their programs to support the significant gaps that exist. Those costs often shift not only to community-controlled organisations but to Aboriginal communities themselves. Community members, distant relatives, et cetera will often utilise their own resources and supports…not because it's their parental responsibility but because it's a community member…That’s where we need family support programs with additional funding.
4.31As noted earlier in this report (paragraph 2.79), some submitters supported well-resourced Bail Support Programs as a diversionary alternative to (unsentenced) detention. NLA, for example, suggested:
Holistic, legislated bail support programs that provide intensive case management for children and young people at risk of being remanded in custody should be implemented, with supports including crisis and supported accommodation, disability and mental health services, and drug and alcohol treatment. Services and programs should be delivered in a culturally safe manner, and where possible First Nations children and young people should be supported by [Aboriginal Community Controlled Organisations, ACCOs].
4.32However, as noted by the NLA and Legal Aid NT representative, Ms Jane Irwin, bail accommodation is far from properly resourced, especially in the Northern Territory:
We have a facility called First Step in Darwin; there are only 10 beds at First Step. It's the only supported bail accommodation in Darwin, and there's no access for girls. For young women or girls who have allegedly offended, there's Saltbush in Alice Springs, but, again, it has only 10 beds and it's currently full. There's BushMob in Alice Springs with 10 beds as well. There's nothing in Katherine. There's a new facility that has just started in Tennant Creek, with six beds. So there are not many beds at all.
We have, in Darwin, the Holtze detention centre, the new facility; that has 52 beds and is at capacity...Partly, that has come out of them closing the Alice Springs Youth Detention Centre because of the surge in custody numbers in terms of adults. So they're closing that detention centre for children and opening it for women in Alice Springs and moving all the children from Alice Springs and the Barkly 1,500 kilometres away—away from traditional lands, community and family—to Darwin, to the Holtze Youth Detention Centre.
Bail and minimum sentencing laws
4.33Figure 4.1 shows that, in 2022–23, the rate of children and young people in unsentenced detention was higher than the rate for those in sentenced detention in all jurisdictions. TheNorthern Territory had, on an average day, the highest rates of youth in sentenced and unsentenced detention (9.1 and 18 per 10 000, respectively), followed by Queensland (0.6 and 4.6 per 10 000 respectively). Victoria had the lowest rates (0.1 and 1.0 per 10 000, respectively).
4.34Speaking to the rates in the Northern Territory, the Children’s Commissioner (NT), MsShahleena Musk commented:
It's clear the Northern Territory youth justice system is geared more towards incarcerating children than investing in earlier supports and interventions, diversionary and restorative justice programs, and accommodation and rehabilitative alternatives. What is happening here in the Northern Territory reflects the politicisation of youth crime and anti-social behaviour by children on the back of hypervigilant and sensationalist media and social media reporting that is too often framed in stereotypical and derogatory narratives about Aboriginal children.
4.35Ms Musk added:
It seems to me that there's a perception that Aboriginal people, particularly Aboriginal children, do not have human rights. It's up to the Commonwealth, which is a signatory to these United Nations conventions, to honour those and to take action in both laws and policies and in holding state and territory governments to account to ensure that we can all realise our human rights and that they are all protected and respected within our jurisdictions.
4.36The AHRC submitted that article 37(b) of the CRC and ongoing efforts to reduce youth incarceration are undermined by restrictive bail laws directed at children and young people who offend. It particularly noted:
In Queensland, the government passed laws in 2023 to make breach of bail a criminal offence and other changes aimed at reducing serious offending. This move was criticised by youth advocates, the Queensland Human Rights Commissioner and others for posing a risk of greater numbers of young people in detention, with little improvement of community safety. Further, on 1 May 2024, the Queensland Government introduced amendments to its Charter of Youth Justice Principles that would replace the words ‘detention as a last resort’ with alternative wording. These proposed amendments have been criticised.
4.37In another example, NAAJA stated that punitive bail laws in the Bail Act 1982 (NT) and the Youth Justice Act 2005 (NT) have led to the overincarceration of children and young people:
The Youth Justice Legislation Amendment Act 2021 (NT):
removed the presumption of bail for certain prescribed serious offences (including unlawful entry and unlawful use of a motor vehicle)
prescribed breaches of bail conditions relating to curfews and electronic monitoring devices as ‘serious breaches of bail’
required the revocation of bail with limited judicial discretion following serious bail breaches
required breaches of bail to be considered during sentencing (collectively, Bail Reforms).
These amendments had an immediate impact on youth incarceration numbers in the Northern Territory, causing a 56% increase in the average daily number of young people in detention in their first year of operation. Overall, the Bail Reforms have led to a 30% rise in the number of young people in detention over the last five years, with Aboriginal children faring the worst.
4.38SNAICC argued that bail and remand laws, as well as sentencing practices and policies, must be reformed to give effect to the principle of detention as a last resort:
SNAICC calls for a concerted, national approach to reforming all bail and remand laws and practices to unequivocally privilege the presumption of bail in all cases, and the use of remand only in exceptional circumstances. Self-determination and considerations of the health and wellbeing needs of the child, the family and the community should sit at the centre of bail, remand and sentencing decisions, allowing communities to decide how best to support their children.
4.39Similarly, the National Aboriginal and Torres Strait Islander Legal Service (NATSILS) called on Australian governments to urgently reform their bail and remand frameworks to ensure that they are evidence-based and address the holistic needs of children and young people. It added that these reforms must be designed in consultation with First Nations people and give effect to targets within the National Agreement on Closing the Gap (the National Agreement):
Governments must collaborate with Aboriginal and Torres Strait Islander communities and [Aboriginal and Torres Strait Islander Legal Services] to design these reforms, ensuring that they are aligned with Closing the Gap targets and the broader aim of reducing youth incarceration. These will need to be place-based and ensure self-determination.
4.40The AHRC warned that mandatory minimum sentencing laws can also undermine the principle of detention as a last resort:
The UN Committee on the Rights of the Child has repeatedly raised concerns about their application to children in the Northern Territory and Western Australia. The Northern Territory has since repealed many of its provisions, but in Western Australia, minimum mandatory sentences for certain offences still apply to children.
4.41The Attorney-General’s Department (AGD) submitted that the Australian government has provided national leadership and coordination through the Standing Council of Attorneys-General (SCAG). Specifically in relation to bail and remand reform, AGD stated:
On 23 February 2024, SCAG asked the [Joint Policy Partnership, JPP] to consider and provide advice on bail and remand reform, recognising the significant impact that remand has on the overrepresentation of Aboriginal and Torres Strait Islander adults and children in the criminal justice system. A bail and remand report was provided by the JPP to SCAG in June 2024, and SCAG agreed to establish a Bail and Remand Working Group to consider the JPP’s recommendations. The Commonwealth will lead the Working Group, which will include representatives of the JPP and will report-back to SCAG within 12 months.
4.42At its 22 November 2024 meeting, SCAG agreed to discuss bail and remand at its next meeting. As at the time of writing, this meeting has not occurred. However, Ms Esther Bogaart, First Assistant Secretary, First Nations and Justice Policy Division at the AGD, provided the inquiry with the following update:
The working group has met twice now, and it is working through a range of issues around bail and remand, recognising that bail and remand and the laws, policies and practices in place within all jurisdictions do have an impact on incarceration rates, particularly of Aboriginal and Torres Strait Islander people and children—it's not just specific to children. The working group will report back to SCAG in mid-2025. I'm co-chairing that working group, along with NATSILS. We're in the early stages, but there are a lot of considerations that we're taking into account to report back to SCAG. Each jurisdiction is represented on that working group and will contribute to the recommendations in that report…But, as with minimum age, it is a matter for each jurisdiction how they ultimately legislate.
Right to have age taken into account
4.43The UN Committee on the Rights of the Child expressed its view on the treatment and conditions for children and young people deprived of their liberty under article 37(c) of the CRC, including:
Every child deprived of liberty is to be separated from adults, including in police cells. A child deprived of liberty is not to be placed in a centre or prison for adults, as there is abundant evidence that this compromises their health and basic safety and their future ability to remain free of crime and to reintegrate. The permitted exception to the separation of children from adults stated in article 37 (c) of the Convention – “unless it is considered in the child’s best interests not to do so” – should be interpreted narrowly and the convenience of the States parties should not override best interests. States parties should establish separate facilities for children deprived of their liberty that are staffed by appropriately trained personnel and that operate according to child-friendly policies and practices.
Queensland watchhouses
4.44Submitters and witnesses argued that children and young people have been detained in adult facilities, which are fundamentally unsuitable for youth detention. Three particular institutional settings were commonly cited: Unit 18 at the Casuarina Prison (Western Australia), and the Cairns and Murgon watchhouses (Queensland). This section of the chapter focuses on the watchhouses.
4.45The National Children’s Commissioner advised that, during her recent inquiry (see Chapter 1), she visited youth detention facilities across the country, including Queensland watchhouses:
…I was assisted by the Queensland Human Rights Commission to make contacts in Queensland. I found that the [Queensland Police Service was] very co-operative. The police are running [the watch houses]. I was able to visit several of them, and I cannot stress more strongly how appalling they were. I had seen a lot of children's prisons by that point. I felt warm towards them after I had seen the watch houses. No child, I don't think, should be in those at all. We shouldn't have them in there at all. Yet, I was told [children] were often there for six weeks at a time. It's not acceptable in a country as rich as Australia.
4.46In 2024, the Inspector of Detention Services (Queensland), Mr Anthony Reilly, inspected the Cairns and Murgon watchhouses, with his report tabled in the Queensland Parliament on 11 September 2024. He briefly explained:
Watch-houses, which are operated by the Queensland Police Service, are intended to be used for the short-term detention of a person prior to them being granted bail or being transferred to a youth detention centre or prison. However, watch-houses in Queensland are now used to detain children for lengthy periods of time.
4.47Ms Natalie Lewis, Commissioner for the Queensland Family and Child Commission, acknowledged the increasing number of children and young people being held in watchhouses for more than 24 hours:
We are seeing children and young people being placed in watch houses, when it is their first interaction with the system, because of the presumption against bail. So it is not that the laws are playing out and focusing on serious repeat offenders, which is how a lot of those things are marketed. Many of the children that are sitting in watch houses have never been there before. So the disincentive that that provides in terms of helping kids to reintegrate—because they're kind of feeling, 'I've seen the worst of the worst of it now'—is incredibly harmful. It is an absolute impediment to the reintegration of children and young people…[T]o think that we have 10-year-olds in [watchhouses] in Queensland—where it is now lawful to place a child in a watch house for an indefinite period of time, at the sole discretion of the director-general for that department—should alarm the Commonwealth.
4.48Mr Reilly made numerous findings in relation to whether watchhouses were keeping children safe and unharmed, and treating them humanely. His report expressed multiple concerns, including, forexample, the suitability of the infrastructure (Figures 4.2 and 4.3), theapproach for managing at-risk children and young people, and staff guidance and training for managing behavioural issues.
Figure 4.2Cairns Watchhouse, Boys' Unit, Accommodation Cells
Source: Inspector of Custodial Detention, Office of the Queensland Ombudsman, Cairns and Murgon watch-houses inspection report: Focus on detention of children, 11 September 2024, p. 24.
Figure 4.3Cairns Watchhouse, Outdoor Exercise Yard
Source: Inspector of Custodial Detention, Inspector of Custodial Detention, Office of the Queensland Ombudsman, Cairns and Murgon watch-houses inspection report: Focus on detention of children, 11 September 2024, p. 29.
4.49Sisters Inside and the National Network of Incarcerated and Formerly Incarcerated Women & Girls commented upon the effects of ‘imprisoning’ children and young people in watchhouses:
Watchhouses are not designed to cage children, and the impacts of these containments are devastating. In watchhouses, children are denied privacy, subjected to strip searches, and often placed in isolation for extended periods under the guise of ‘safety.’ These conditions lead to significant psychological and physical harm, with numerous reports of suicidal ideation and attempts by children incarcerated in such facilities. Moreover, watchhouses are not meant for extended stays, yet children can be contained in them for weeks, sometimes months, [causing] and exacerbating their mental health issues. Reports of neglect and violence, including the excessive use of force by police officers, are widespread. These conditions reflect a fundamental neglect of the state’s duty to care for the children in their care, placing the children at immense risk of lifelong trauma.
4.50Anglicare Southern Queensland, which supports children and young people in watchhouses, submitted that its experience supports the findings of the Inspector of Detention Centres (Queensland):
Staff acknowledge that many watch-house police officers are doing ‘the best they can’ in a very difficult environment designed for adults, with little or no specialist training. They have no capacity to simultaneously address complex behaviours in adults as well as children, who are often held within sight and/or sound of each other; nor the trauma that exposure to long hours of adult trauma (eg screaming), inactivity, rigid routines, and confinement in a ‘scary’ space separated from families or friends can have on a child, particularly those children with intellectual or other disabilities.
4.51As noted by the Justice Reform Initiative (paragraph 4.8), the Queensland Government has passed legislation ‘to further legitimise and expand this practice’. The Queensland Family and Child Commission considered that a spike in youth crime could not possibly justify suspension of the Human Rights Act 2019 (Qld):
Suspending state based human rights legislation and limiting the rights of children is a serious decision that must also pass the test of being reasonable, necessary and proportionate...[The suspensions] stand as examples of the most senior governance body in Queensland introducing ever more punitive approaches to dealing with a cohort of children that is known to have high levels of poor health and disability, poor schooling and contact with the child protection system. Theroughly 50% of children in youth justice with a diagnosed health issue or disability (the true number may be higher) is an ongoing human rights violation that is further compounded by keeping these young people in custody where they may be harmed further.
4.52The AHRC highlighted that, on ratification of the CRC, Australia lodged a reservation to article 37(c), stating that it could not comply ‘having regard to the geography and demography of Australia’. SNAICC, the Law Council and the AHRC all rejected this rationale, with the latter highlighting:
…the UN Committee has pointed out that the Australian Government’s concerns are already taken into account by the article, which states that incarceration with adults is prohibited unless it is considered in the child’s best interests not to do so and also that a child shall have the right to maintain contact with his or her family.
By removing the reservation to Article 37(c), the Australian Government would signal to the states and territories that it is serious about meeting its obligations under the CRC, and that detaining children in facilities designed for adults is unacceptable.
Minimum age of criminal responsibility
4.53The UN Committee on the Rights of the Child has encouraged States parties, incompliance with article 40(3)(a) of the CRC, to increase their minimum age of criminal responsibility to at least 14 years without exception. It noted that, while many States have raised the age and mostly commonly to 14 years, there are some States with ‘an unacceptably low minimum age of criminal responsibility’:
Documented evidence in the fields of child development and neuroscience indicates that maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 13 years due to the fact that their frontal cortex is still developing. Therefore, they are unlikely to understand the impact of their actions or to comprehend criminal proceedings. They are also affected by their entry into adolescence. As the Committee notes in its general comment No. 20 (2016) on the implementation of the rights of the child during adolescence, adolescence is a unique defining stage of human development characterized by rapid brain development, and this affects risk-taking, certain kinds of decision-making and the ability to control impulses. States parties are encouraged to take note of recent scientific findings, and to increase their minimum age accordingly, to at least 14 years of age. Moreover, the developmental and neuroscience evidence indicates that adolescent brains continue to mature even beyond the teenage years, affecting certain kinds of decision-making. Therefore, the Committee commends States parties that have a higher minimum age, for instance 15 or 16 years of age, and urges States parties not to reduce the minimum age of criminal responsibility under any circumstances, in accordance with article 41 of the Convention.
4.54In Australia, the age of criminal responsibility in all jurisdictions is 10 to 12 years, with three states and territories having committed to raising the age within the next five years (see Table 4.1).
Table 4.1Status of the age of criminal responsibility in Australia, as at 21 October 2024
| | |
Commonwealth | 10 years | No public commitments. |
Australian Capital Territory | 12 years | After 1 July 2025 this will rise to 14 years with exceptions for listed ‘serious offences’ including murder. |
New South Wales | 10 years | No public commitments. |
Northern Territory | 10 years | New government lowered from 12 years. |
Queensland | 10 years | No public commitments. |
South Australia | 10 years | Proposal to raise the age to 12 has undergone public consultation, outcome not yet announced. |
Tasmania | 10 years | Committed to raise age to 14 by 2029. |
Victoria | 10 years | By 30 September 2025 this will rise to 12 years. Previous commitment to raise age to 14 years has been dropped. |
Western Australia | 10 years | No public commitments. |
|
|
|
Source: The Australia Institute, Submission 2, p. 2 [updated by the secretariat].
4.55Table 4.1 shows a degree of national consistency, with most jurisdictions having legislated 10 years as the minimum age of criminal responsibility. Australian and New Zealand Children’s Commissioners, Guardians and Advocates (ANZCCGA) voiced strong concerns that children as young as 10 years old are being incarcerated, contrary to human rights standards and the determination made by the UN Committee on the Rights of the Child.
4.56In this respect, Mr Greg McIntyre SC, Member of the National Human Rights and Indigenous Legal Issues Committees of the Law Council, observed that, at present, all states and territories have adopted a measure that is inconsistent with Australia’s international law obligation.
4.57Ms Julie Hourigan, Chief Executive Officer of SHINE of Kids, stated:
…we're fundamentally misunderstanding that these are children…Yes, sometimes kids do bad things and make bad decisions, but these are kids. We have to make sure that our system responds to them as children and has age-appropriate responses in place that are responsible and able to support a kid to make better decisions, move forward in their life and not be branded forever as 'the bad kid'.
4.58The ANPM succinctly encapsulated the common view throughout submissions and evidence:
The minimum age of criminal responsibility should be set at 14 years, across the country, and without exceptions. Consideration should also be given to ceasing the detention of children and young people aged under 16.
Earlier investigations and efforts
4.59In 2020 the #Raise The Age campaign was created by a coalition of Aboriginal and Torres Strait Islander organisations and legal, medical and human rights groups, to advocate for legislative reform aimed at ensuring that children under 14 years cannot be incarcerated.
4.60Many of these organisations submitted to the inquiry. In particular, the AMA noted that the #Raise The Age campaign had provided expert advice and recommendations to the Age of Criminal Responsibility Working Group (theWorking Group) for the Council of Attorneys-General (CAG, the predecessor to the SCAG).
4.61The Working Group supported raising the minimum age of criminal responsibility to 14 years of age without exception. However, its draft report was never agreed by all jurisdictions at officer level and the draft report was not provided to the CAG for consideration. According to the Commonwealth Attorney-General, the Hon Mark Dreyfus KC MP:
The 2020 Draft Report gave detailed consideration to the existing legal and policy framework and the reforms that could be considered to raise the age of criminal responsibility. However, the Working Group identified the need for further work to occur regarding the need for adequate supports and services for children who exhibit offending behaviour.
4.62At its 22 September 2023 meeting, the SCAG Working Group reported to the Attorneys-General, outlining a principles-based framework for jurisdictions to consider for raising the minimum age of criminal responsibility:
[Participants] agreed to consider the report and return to the December meeting of the [SCAG] with a position or update on minimum age of criminal responsibility reform in their jurisdiction. Participants agreed-in-principle that the Working Group’s report would be released publicly after Attorneys-General have given it further consideration at the December meeting.
4.63At the 1 December 2023 meeting, SCAG participants noted the positions and updates on reform in each jurisdiction, and agreed to share future updates. Inaddition, as noted by the AGD in its submission:
…an Age of Criminal Responsibility Community of Practice has been established with all jurisdictions to share lessons and cross-jurisdictional matters related to Minimum Age of Criminal Responsibility reform.
4.64Apart from receiving updates from jurisdictions, the SCAG did not discuss minimum age of criminal responsibility reform throughout 2024. The AMA reflected that, to date, ‘no collective action has been taken’ and ‘sadly, the issues surrounding youth justice are influenced by a lack of government leadership at a federal level and jurisdictional party politics’.
4.65Ms Annmarie Lumsden, Director at NLA, was one of several stakeholders to note that Australian governments have failed to progress and even reversed reform in this area: ‘several jurisdictions have made policy changes that undermine this priority and have moved further away from a national agreement to raise the age’.
4.66Ms Bogaart from the AGD, clarified, however, that the SCAG did not commit to raising the minimum age of criminal responsibility:
The report was to provide a framework for jurisdictions for their decision-making around raising the minimum age of criminal responsibility and the principles and factors they needed to take into account when and if their governments made decisions about raising the age. It doesn't recommend that the age be raised; it recommends how governments may go about raising the age—if they make that decision—within each jurisdiction, which is a matter for each jurisdiction.
Ongoing support based on age appropriateness and vulnerability
4.67In the Help way earlier! report, the National Children’s Commissioner recommended, among other things, that Australian governments raise the minimum age of criminal responsibility in all jurisdictions to 14 years.
4.68Many stakeholders endorsed this recommendation. ANZCCGA stated that raising the minimum age of criminal responsibility should not be regarded as reducing accountability for children who engage in criminal offending or other anti-social behaviours: ‘instead, socio-educational pathways to accountability and rehabilitation within a family setting exist and have been shown to have positive outcomes’.
4.69SNAICC emphasised the view of Aboriginal and Torres Strait Islander peoples, who, rather than introducing children and young people into the child justice system, preference family and community support for developing and vulnerable young people:
Criminal incarceration should not be a feature of any childhood. Children under the age of 14 are still undergoing formative phases of growth and development. Medical scientific evidence shows that a child’s cognitive development is still ongoing at the age of 14. As their brains are still developing, a child’s cognitive immaturity before the age of 14 can lead them to act impulsively and affect their reasoning about and reckoning with potential consequences. A number of children below the age of 14 in child justice systems have complex needs, including mental health concerns, cognitive or intellectual disabilities and/or developmental delay, behavioural difficulties, histories of trauma and/or mistreatment, lack of secure housing and drug and alcohol use. These children require access to holistic supports that address their needs. These supports are not adequately provided through the child justice system, with evidence highlighting that contact with the child justice system, particularly youth detention, exacerbates these challenges rather than providing a response.
4.70SNAICC suggested that raising the minimum age of criminal responsibility would likely reduce the over-representation of Aboriginal and Torres Strait Islander children in detention. It reiterated that First Nations children (aged 10–13) are disproportionately affected by the low age of criminal responsibility (seeChapter 2), and their incarceration is counterproductive to community safety:
…there is no evidence to suggest that a minimum age of criminal responsibility as young as 10 years of age will lead to safer communities. Infact, this is likely to have the opposite effect. Incarceration is ‘criminogenic’; imprisonment at any point in a child’s life increases their chances of future contact with the justice system. The younger a child is incarcerated, the more likely they are to have contact with the justice system again.
4.71SNAICC urged the Australian government to develop and lead a national plan of action to raise the minimum age of criminal responsibility to 14 years across all jurisdictions.
4.72The Australia Institute advised that, in 2020, it collaborated with Change the Record to survey a nationally representative sample of 1012 Australians about their views on the incarceration of children. The findings showed, among other things, that 51 per cent of respondents supported or strongly supported raising the minimum age of criminal responsibility to 14 years.
Third Optional Protocol on the CRC
4.73The Third Optional Protocol on the CRC (the Optional Protocol on a Communications Procedure) provides a mechanism for children to submit complaints to the UN Committee on the Rights of the Child in relation to a violation of their rights under the CRC or any of its Optional Protocols.
4.74Australia has not ratified the Optional Protocol on a Communications Procedure. The Law Council advised that, as Australian children cannot make complaints under the protocol, they are denied ‘a child-friendly UN complaints procedure appropriate to their needs’.
4.75SNAICC supported ratification of the Optional Protocol on a Communications Procedure, which, it argued, would provide new protections for Aboriginal and Torres Strait Islander children and young people:
Ratification of the Optional Protocol would add an additional layer of complaint and redress for Aboriginal and Torres Strait Islander children, providing new protections for children, giving them ability to make complaints about breaches across the whole spectrum of rights under the [CRC].
4.76As noted by the NSW Advocate for Children and Young People (see paragraph 2.54), children and young people in detention do not generally complain about poor treatment. Maranguka concurred and added that, at present, there is no independent, effective or trusted complaints mechanism:
…non-compliances at detention centres across Australia often go unreported, due to the inherent power dynamics of the system. A young person has little control over their circumstances in detention, and trust in government systems are lacking in these populations - this leads to a sense of disenfranchisement and a belief that complaints will either not be taken seriously, not result in any meaningful action being taken, and perhaps exacerbate their remaining time and interactions in current or future detention.
4.77Similarly, the Australian Child Rights Taskforce submitted:
Current youth justice systems rarely provide genuine settings that will enable children and young people to complain about their treatment. Additional barriers exist for children and young people with disabilities, from different cultural backgrounds, those who are gender diverse and those with limited literacy and experience navigating complaint systems. Arigorous independent process is required so that children and young people can safely and confidently access opportunities to be heard and to complain, including access to appropriate timely, proportionate, and effective remedies.
4.78The Human Rights Law Centre and Change the Record agreed that the Australian government should ratify the Optional Protocol on a Communications Procedure: ‘this is substantially pressing given the current absence of adequate domestic remedies’.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
4.79Article 2 of the UNCAT prohibits absolutely acts of ‘torture’. In November 2022, the relevant treaty body—the Committee against Torture (CAT)—adopted its Concluding Observations on the Sixth Periodic Report of Australia. Itsreport expressed serious concerns about aspects of ‘juvenile justice’ in Australia, asfollows:
(a)the very low age of criminal responsibility, as it is set at 10 years;
(b)the persistent overrepresentation of indigenous children and children with disabilities in the juvenile justice system;
(c)reports that children in detention are frequently subjected to verbal abuse and racist remarks and restrained in ways that are potentially dangerous;
(d)the practice of keeping children in solitary confinement, in particular at the [BHDC] in Western Australia, the Don Dale youth detention centre in the Northern Territory and the Ashley youth detention centre in Tasmania, which contravenes the Convention and the [United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules)];
(e)the high number of children in detention, both on remand and after sentencing;
(f)children in detention not always being separated from adults;
(g)children’s lack of awareness about their rights and how to report abuses.
4.80The CAT also commented generally on the conditions of detention in Australia, commentary which is reflected throughout Chapters 1 to 4:
…the Committee remains concerned about reports that, despite remedial measures taken by authorities, the number of detainees remains high while the number of personnel remains relatively low in many places of deprivation of liberty. It is also concerned at reports that, in a number of places of deprivation of liberty, health-care services, in particular mental health services, remain inadequate, and that recreational and educational activities to foster rehabilitation of detainees remain extremely limited. It is further concerned at reported arbitrary practices, in particular the continued use of prolonged and indefinite solitary confinement, which disproportionately affects indigenous peoples and inmates with intellectual or psychosocial disabilities, abusive strip-searches, as well as excessive use of various means of physical or chemical restraint. Finally, it remains concerned at reports indicating a high rate of incarceration of inmates with disabilities, in particular intellectual or psychosocial disabilities, and that correctional institutions lack the appropriate capacity, resources and infrastructure to manage serious mental health conditions.
Optional Protocol to the Convention Against Torture
4.81The OPCAT establishes a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty to prevent torture and other cruel, inhuman or degrading treatment or punishment.
4.82OPCAT was ratified by Australia on 21 December 2017 and its national body—the multi-body ANPM—explained its role as follows:
…we support the prevention of torture and other ill treatment of people deprived of their liberty, by examining treatment and conditions in places of detention, and making recommendations for improvement…
[National Preventive Mechanisms, NPMs] must have unrestricted access to all places where people may be deprived of their liberty and all people held in such places, as well as all information relevant to such places and people. NPMs must also have the power to make recommendations to relevant authorities towards improving treatment and conditions, and to make proposals and other observations on current or draft legislation.
4.83The AHRC observed that it has taken some time for the ANPM to commence (20January 2023), with only six jurisdictions having implemented the NPM obligations (the Commonwealth, Australian Capital Territory, Northern Territory, South Australia, Tasmania and Western Australia).
4.84The Human Rights Law Centre and Change the Record stated that the OPCAT provides ‘a framework for stamping out cruel and degrading treatment’ but ‘Australia’s compliance with OPCAT is dismal’. They commented that the incomplete status of the ANPM is due to a funding disagreement between governments:
…the Victorian, NSW and Queensland Governments [have] failed to implement this bare minimum safeguard to protect against mistreatment in prisons. We understand it is the position of these governments that the federal government should provide funding for independent detention oversight. So long as this funding standoff persists, people in all places of detention – including children and young people in prison and police watch-houses – will remain at risk of mistreatment.
4.85The ANPM also commented on the absence of ‘full coverage to oversee all places of detention across Australia’ and highlighted other challenges for its existing members:
…some of our existing members are of unclear status as NPMs, and many have no OPCAT-specific legislation providing for all the necessary powers and protections of an NPM. Critically, not one of our 12 members is adequately resourced to effectively fulfil their NPM mandate on an enduring basis, and many have received no OPCAT funding whatsoever.
4.86The Australian Child Rights Taskforce supported the concept of a NPM, which, it considered, could provide a key opportunity to assist children and young people who experience torture, and other cruel, inhuman, or degrading treatment or punishment. However, its submission called for broader monitoring:
…a child-specific monitoring mechanism is required to ensure appropriate and consistent systemic responses are built across sectors and settings. Inthe current context, monitoring the treatment of children in youth justice detention settings requires a holistic and comprehensive and coordinated framework.
Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
4.87In 2022, the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the SPT)—the international monitoring body established by the OPCAT—suspended then terminated its visit to Australia, when the Queensland and New South Wales governments declined access to youth detention facilities within their jurisdictions.
4.88The Law Council described the termination of the SPT’s country visit as ‘an internationally embarrassing incident, which highlighted the failure of governments at all levels in Australia to cooperate to implement the treaty properly’.
4.89Similarly, Ms Zoë Robinson, Advocate for Children and Young People (NSW), noted the reputational damage to the federal and state governments concerned, but also the unintentional damage to children and young people in detention:
…the ultimate decision of the subcommittee to suspend [its] trip prevented youth justice staff and centres…from developing a partnership with this entity and increasing their capacity to protect individuals within their centres from harm. Failure to uphold this obligation, despite repeated extensions to the deadline and calls from the international community, risks significant reputational damage to the NSW Government and reduces the ability of children and young people to make a complaint about their treatment within these premises beyond the mechanisms already in place.
4.90The AHRC submitted that, by ratifying the OPCAT, Australia is required to accept visits from the SPT. Further, ‘Australia needs to urgently set standards of care for children held in detention [see Chapter 5] and to have comprehensive independent monitoring with transparency and accountability’.
National compliance with human rights
4.91As discussed throughout this interim report, submitters and witnesses considered that, notwithstanding Australia’s international human rights obligations, the human rights and well-being of children and young people in youth detention centres, watchhouses and sometimes adult prisons are not being upheld and protected.
4.92NATSILS submitted, for example:
Despite the Australian Government’s publicly stated commitments to upholding and reinforcing human rights on the world stage, NATSILS continues to hold serious concerns that Australia is not compliant domestically with several international obligations in relation to young people exposed to the criminal justice system. A strong, legislated human rights framework will enable the Commonwealth to drive leadership and practical change across child justice systems.
4.93UNICEF Australia emphasised that there are varying degrees of compliance across jurisdictions, however, there are significant policy and practice concerns in all jurisdictions in relation to child rights:
We have seen varying degrees of compliance with human rights standards across state, territory and federal detention centres in the absence of uniform standards and oversight. While improvements have been made in some states, such as the introduction of education and mental health support programs in NSW and an increased focus on rehabilitation and education in Victoria, there are still significant concerns regarding policy and practice across all states and jurisdictions when it comes to child rights.
4.94NLA concurred that, nationally, youth detention centres have a ‘mixed record’ of compliance with human rights standards:
Numerous reports have revealed non-compliance with the United Nations Convention on the Rights of the Child, including instances of children being subjected to inhumane treatment. The 2017 Royal Commission into the Protection and Detention of Children in the Northern Territory exposed systemic abuse, leading to calls for reforms across all states and territories. Despite these findings, many detention centres continue to operate in ways that contravene international human rights obligations. For example, the use of solitary confinement, which has been deemed a form of torture under international law, persists in some jurisdictions.
4.95Similarly, SNAICC submitted:
The conditions of Australia’s child justice systems are unacceptable, and systematically breach the rights of Aboriginal and Torres Strait Islander children’s rights. For many decades, Aboriginal and Torres Strait Islander people and organisations have been on record about the human rights violations which have taken place in child justice systems and facilities. In1991 the Royal Commission into Aboriginal Deaths in Custody received overwhelming evidence of the harmful conditions and racial discrimination which Aboriginal and Torres Strait Islander children experience in child justice settings.
4.96The Law Council stated that most jurisdictions are not respecting three important principles in the CRC:
policies affecting children should be formulated with ‘special safeguards and care’ due to children’s physical and mental immaturity (Preamble);
the best interests of the child is a primary consideration (article 3(1)); and
detention should only ever be a last resort as a punishment for children (article 37(b)).
Government responsibilities
4.97The AHRC stated that the Australian government has a moral and legal obligation to uphold children and young people’s human rights, by virtue of its international commitments: ‘theAustralian Government, by agreeing to international human rights treaties, is both empowered and obliged to play a key role in ensuring child rights are protected’.
4.98The Law Council’s Mr McIntyre SC advised that ‘jurisdictions need to work together to implement Australia’s international law obligations’. He noted that, when these obligations are not recognised, the Commonwealth must do more to ensure national compliance:
[The states and territories] don't seem to understand their obligations, and the Commonwealth has an obligation to deal with that. Ultimately, the Commonwealth has constitutional power, effectively under its external affairs power, to override the way in which the states and territories are dealing with these matters. Having signed up to the Convention on the Rights of the Child and the other international conventions on civil and political rights, the Commonwealth has an obligation to ensure that those conventions are complied with. It's not popular for the Commonwealth to intervene in the states and territories. So, obviously, in a diplomatic way, in a federal structure, you would start, I suppose, by attempting to encourage and educate the states and territories about the obligations which the Commonwealth has and which they, as part of the Commonwealth, have. Ifeducation fails, then you do have legislative options.
4.99Jumbunna representative, Dr James Beaufils, agreed that ‘if the states aren't complying then, yes, the federal government should exert any influence it can to ensure the states and territories are complying with their human rights responsibilities’.
4.100As noted earlier in this interim report—and as advocated by the National Children’s Commissioner (paragraph 1.23)—stakeholders supported Australian governments transforming their child justice system to adopt a human rights or child rights-based approach.
4.101The Human Rights Law Centre and Change the Record submitted, for example:
Governments across the country have consistently invested in police and prisons over public housing, support services and community-based, self-determined alternatives to criminalisation and incarceration. Successive failures by governments to pursue evidence-based reform in favour of ‘tough on crime’ politics has caused immense harm to First Nations children and communities in particular. Rather than punishing and caging children, Australia must comply with its international obligations by ensuring that all children and their families have the care and support needed to heal and eventually thrive.
4.102In the context of multiple reviews and inquiries over several decades, stakeholders questioned Australian governments’ lack of remedial action, defensive responses, and, in some instances, regressive policies and legislation (such as in Western Australia, the Northern Territory, New South Wales and Queensland).
4.103Submitters particularly referenced a response from the UN Committee on the Rights of the Child to Australia’s most recent implementation report (CRC/C/AUS/5-6), which articulated multiple concerns with Australia’s child justice system.
4.104SNAICC stated that, like Australian reviews and inquiries, the UN Committee on the Rights of the Child has presented a considered and targeted set of reforms that have not gained any traction in the past five years:
The Committee’s recommendations respond directly to breaches of Australian children’s rights in child justice systems. They therefore represent a considered and targeted set of reforms which all Australian governments can and should undertake.
Responsibilities within the federal system
4.105The AGD submitted that Australia’s international treaty obligations are implemented by Australian governments through a range of laws, policies and programs. The department summarised its view on the compliance aspect, asfollows:
Australia considers recommendations made by the UN committees and responds to those recommendations in good faith through treaty reporting processes. Recommendations are disseminated to jurisdictions for consideration and implementation as appropriate.
4.106The Law Council submitted that, from a human rights perspective, the constitutional division of responsibilities enables ‘blame-shifting and disclaiming of obligation at both the state/territory and federal (Commonwealth) levels of government’. It continued:
The issue of state and territory responsibility for the fulfilment of international obligations incurred by federal Government treaty action is a vexed one. Under international law, the international responsibility for giving effect to the provisions of a treaty lies with the Commonwealth. Atthe same time, the acts or omissions of the states and territories in areas where they exercise legislative or executive power as a result of the constitutional allocation of power or as a result of political agreement and practice, are attributable to the Commonwealth (Australia) on the international level. Thus, the Commonwealth government may be found to have violated its international obligations as a result of state or territory actions that the Commonwealth is effectively unable to override for constitutional reasons or because of the agreed allocation of roles under the federal system. Thus, the Commonwealth may be hamstrung in ensuring obligations are implemented.
4.107Nevertheless, Ms Nerita Waight, Deputy Chair of NATSILS, said ‘we should see the Commonwealth compel states and territories to act in accordance with Australia's international obligations and introduce consequences for states who actively breach international obligations’.
4.108The Disability Discrimination Commissioner, Ms Rosemary Kayess, agreed, noting that all Australian governments have agreed to the ratification and implementation of international instruments through the Council of Treaties:
There is a mechanism that is established through Prime Minister and Cabinet that brings together each of the states. Each of the states contribute to the briefs that go to the negotiations that the United Nations…The council of treaties is held up as the mechanism that ensures federalism works in Australia for our international obligations. When I'm sitting in Geneva and I have a federal state—say Germany—in front of me, Germany [is] as federated as we are and yet I can have a far less frustrating conversation with them because they have human rights protections within their domestic laws. We don't have that element, and that is the missing element to hold states accountable to domestic standards and international leadership in human rights. It begs the question: why does the council of treaties exist if it isn't a place where the states agree and are held to those agreements for the international standards that we hold?
4.109AGD’s Ms Anne Sheehan, First Assistant Secretary, International Law and Human Rights Division, confirmed that, while the Commonwealth enters into treaties, that commitment is binding on all Australian governments:
It's the Commonwealth that enters into treaties as the level of government that has responsibility for our foreign relations, but those commitments bind all levels of government, so it's not just the Commonwealth that's taking those obligations on. The Commonwealth, states and territories all have those obligations. Those states and territories have a responsibility to comply with international law in the passage of their legislation and in respect of their policies.