Chapter 5Role of the Australian government
5.1In ‘Help way earlier!’: How Australia can transform child justice to improve safety and wellbeing (the Help way earlier! report), the National Children’s Commissioner, Ms Anne Hollonds, argued that the Australian government must provide national leadership to state and territory governments, to ensure the protection of children and young people’s human rights:
Australia’s federal system of government is not an excuse for lack of national action on child rights...Under our federal structure, the Australian Government must provide national leadership to state and territory governments to ensure legislative and policy measures that are fully compliant with our human rights obligations.
5.2As Ms Hollonds noted in evidence to the inquiry:
[Child justice] is a national crisis requiring governments to pull together across the federation to work on a reform road map based on the evidence of what will work…[C]urrently there is no national meeting of youth justice ministers; they do not meet. Currently, the word 'children' does not appear anywhere on the list of key priorities for national cabinet. Thatmeans there are no eyes on children from the top, there is no accountability, and the wellbeing of children is not a national priority in this country.
5.3Ms Nicole Breeze, Chief Advocate for Children at UNICEF Australia, concurred that children and young people must be a national priority for Australian governments:
We need to elevate children more systematically as a national priority. We're seeing this happen increasingly with respect to gender equality and women's safety, and we're seeing commitments to work as a long-term process of reform. We need to set minimum standards, we need to engage in long-term planning and we need the Commonwealth to enhance its role and accountability.
5.4The National Children’s Commissioner made four key recommendations that she described as ‘priorities to enable national reform’ of Australia’s child justice system (Figure5.1).
Figure 5.1Priorities to enable national reform, Recommendations 1–4
Source: Australian Human Rights Commission (AHRC), Help way earlier! report, 2024, p. 12.
5.5Most submitters and witnesses supported the recommendations from the National Children’s Commissioner (paragraph 1.27), including specifically Recommendations 1–4 from the Help way earlier! report. Thischapter discusses the role of the Australian government, with a focus on specific actions.
Role of the Australian government
5.6As discussed in Chapter 4, stakeholders commented on the role of the Australian government in effecting reform of the child justice system, in accordance with international law obligations—particularly the Convention on the Rights of the Child (CRC)—and in the context of Australia’s federal system of government.
5.7While acknowledging that the states and territories have primary responsibility for their own child justice systems, submitters and witnesses stated that the Australian government must acknowledge the need and provide for stronger national leadership.
5.8National Legal Aid (NLA) Director Ms Annmarie Lumsden said ‘the Commonwealth needs to take a leadership role to address the current human rights abuses in the youth justice system in a way that ensures change and better outcomes for children and young people’.
5.9Ms Catherine Liddle, Chief Executive Officer of SNAICC—National Voice for our Children (SNAICC), agreed that the ‘violations’ of young people’s rights ‘belong to all governments and can't be dismissed at a state and territory level’.
5.10Youth Law Australia and the Centre for Criminology, Law and Justice at UNSW Sydney, remarked that ‘the issue of children’s involvement with the criminal law system cannot be left to the responsibility of State and Territory Governments’, as their human rights are not being respected.
5.11The Aboriginal Legal Service of WA voiced a common view that, nationally, child justice systems are in crisis, evidencing the need for Commonwealth intervention:
…the youth justice system in Western Australia (and across Australia more broadly) is in crisis and requires Federal intervention. For years, the Western Australian State Government has been denying young people in detention basic human rights, which has not only had serious and long-lasting consequences for the young people, but for Australia’s reputation on the international stage…
The criticisms that continue to be levelled at Australia by the United Nations [UN] Committee on the Rights of the Child, such as the inhumane conditions in youth detention, the high rates of incarceration of Aboriginal youth and the lack of comprehensive national child rights legislation, demonstrate that Australia is failing to act as a global leader in relation to youth justice and is fundamentally failing to protect the rights of children and young people. The crisis that many states and territories currently face in relation to youth justice highlights the need for the Federal Government to take urgent action to ensure that children’s rights are respected all across the country.
5.12As noted throughout this report, some stakeholders condemned the ‘tough on crime’ approach, which, they argued, is a populist approach frequently used by Australian governments but which does not address the drivers of youth offending, and frequently leads to breaches of human rights.
5.13In this context, theOffice of the Children’s Commissioner (NT) argued that disadvantaged and vulnerable children and young people are being used for political gain:
Populist politics and tough on crime debates see children routinely used as footballs in political campaigns for advantage and point scoring, their rights impinged as part of the political discourse. Youth justice, and policies that affect our most vulnerable children, must be separated from politics. Irrespective of which political party holds office, we must hold firm the expectation that the Government of the day makes sound legal and policy decisions based on evidence, consistent with human rights and minimum standards and in compliance with international law. We must never lower our expectations for children – we must want them to thrive in life, be safe in their communities and be seen in the capacity of their full potential. Atpresent in the Territory, the public narrative lies in the sentiment that some children are deserving of protection, care and support but not those who are most at risk of contact with the youth justice system.
5.14Noting the Law Council of Australia (Law Council) comments on the ‘responsibility dilemma’ (paragraph 4.106), Mr Greg McIntyre SC, Member of the National Human Rights and Indigenous Legal Issues Committees, observed that the Commonwealth has previously found ways to act in areas that are state and territory responsibilities:
…the Attorney-General's Department [AGD] are suggesting that it's a state and territory matter. The Commonwealth has had no hesitation in appropriately dealing with domestic violence, health, education, medical assistance and all of those things at a national level. You don't see a specific paragraph in section 51 which gives the Commonwealth that power, but it has found ways of acting as a national power, a national legislature and a national government in taking responsibility for those matters which are of national significance. It can do it, and it needs to do it, with both the appropriate declarations and the resources.
5.15Ms Hollonds similarly observed that the Commonwealth has worked with Australian governments to develop reform road maps (such as in the areas of domestic and family violence and housing). In addition:
It's notable that when it comes to youth radicalisation, another form of youth crime, we already have a national architecture in place to work together on evidence-based prevention and responses. I have met with [the Australian Security Intelligence Organisation], [the Australian Federal Police] and Home Affairs and they all agree the underlying risk factors for youth radicalisation are the same—things like neurodiversity, mental health issues, disengagement from school, et cetera. The fact that the federal government is already working together with the states and territories to prevent that form of crime is in stark contrast to the fragmented approaches and lack of collaboration for the much larger group of children that we've been hearing about today. In fact, there's a growing divide in Australia in the approaches taken by different states and territories, and, overall, we're going backwards because we are not working together.
5.16Law Council representative, Mr Anthony McAvoy SC, Chair of the Indigenous Legal Issues Committee, said that ‘the Commonwealth is now in a position where states appear to be openly abandoning our country's international human rights obligations’. Mc McAvoy said:
…unless there is some Commonwealth action, that will continue to be the case. So it's not a question of whether the Commonwealth should act; it's what it should do.
Commonwealth levers
5.17Submitters and witnesses stated that the Australian government has political, legislative and fiscal levers that it could and should use to guide and/or influence state and territory governments. These levers should aim to address the ‘social determinants of justice’ (see Chapters 2 and 3), to ensure compliance with international law obligations (see Chapter 4), and to lead national reform, for example, by setting national minimum standards for child justice (see ‘National standards’).
5.18SNAICC representative Ms Liddle suggested that the Australian government should begin by implementing the recommendations from the Royal Commission into Aboriginal Deaths in Custody (1987–1991):
As a starting point, the Australian government should action the recommendations of the Royal Commission into Aboriginal Deaths in Custody. The majority of those recommendations have sat unimplemented for more than 30 years. It is well within the responsibility and the jurisdiction of the Commonwealth government to reorientate funding and policy towards eliminating the underlying structural factors that drive our children's overrepresentation in the justice system. It is also within the commitments the Commonwealth has made to invest in [Aboriginal Community Controlled Health Organisation] led prevention and diversionary supports, as well as increasing the role of our legal and social services that respond to the needs of children who are in contact with youth justice systems.
5.19Ms Breeze from UNICEF Australia, expressed the view that the Australian government should focus on three types of levers:
The first is legislative reform. We need to establish enforceable national youth justice standards, we need to increase oversight of detention facilities and we need to legislate human rights protections to build a culture of respect for the human rights of children. The second is systems reform. Wemust increase investment in early intervention and prevention of youth offending. Finally, there's a field of reform focused on child-friendly justice. Those children encountering the youth justice system are finding environments that are not friendly or appropriate for them.
5.20In relation to systems reform (such in the area of education), National Association for Prevention of Child Abuse and Neglect (NAPCAN) Chief Executive Officer, Ms Leesa Waters, suggested that ‘we will have the answers’ if ‘we fund initiatives on a place-based basis that are tailored for individual communities, especially regional and remote communities, and we spend time listening to those communities’.
5.21Ms Breeze stated, however, that reform must commence with the development of ‘a deeper culture of respect for children in Australia’, which would begin with legislative reform to prioritise child rights (also see paragraphs 5.65–5.66):
We've seen other countries legislate their international commitments to the Convention on the Rights of the Child into domestic law. Australia hasn't done this. Most recently, Scotland just last year put in place a federal act which places the obligation on governments to ensure that legislation does not contravene its commitments under the convention and sets up legal remedy in situations where it does.
I go to the National Children's Commissioner's critical recommendations for a 10-year process of reform, and that's where it begins, with the incorporation of our commitments to the convention into our domestic law [Recommendation 4 of the Help way earlier! report].
5.22The Coalition of Peaks broadly identified legislative, political and fiscal powers as critical levers for child justice reform:
The Commonwealth has its own criminal laws and powers that affect children. It can drive meaningful change by reforming its own minimum age of criminal responsibility, and police, bail and sentencing laws.
The Commonwealth also holds great political – and fiscal – power, and has the tools to influence significant reform across sectors and jurisdictions.
The National Agreement [on Closing the Gap, the National Agreement] is the headline First Nations policy of the Commonwealth Government, and the Commonwealth is jointly responsible with states and territories for meeting Closing the Gap targets and outcomes, including Outcome 11 – that Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system.
In addition, the Australian Government is responsible for the country’s compliance with international human rights standards and has the power to legislate stronger protections of human rights, including the provisions of international instruments as they apply to children.
5.23MrsJoanna Rostami, Chief Executive Officer of the Australian Youth Affairs Coalition (AYAC), shared a common view among stakeholders that the Australian government should ‘tie’ its state and territory funding to the delivery of outcomes:
It has worked well in education…If we look at the [National Disability Insurance Scheme] as well, for example, where there are state and territory agreements, it does work effectively and it would be a really useful way to lead and expect change.
5.24Ms Patricia Turner, Lead Convenor of the Coalition of Peaks, concurred with NLA’s Ms Lumsden (paragraph 3.37) that there is scope for the Australian government to better leverage intergovernmental agreements:
…money speaks all languages and fiscal control is very important. Forexample, there are significant intergovernmental agreements…We've been very keen to ask for money to be quarantined within them to fulfil the commitments that are made under the national agreement or towards that. …While the intergovernmental agreements reflect the priority reforms in the national agreement, they don't reflect the fiscal power where money can be agreed to and quarantined for Aboriginal programs. It's very important that that happens across the board.
5.25Turning to the issue of compliance with international law obligations, submitters and witnesses noted that the Australian government could utilise the external affairs power (section 51(xxix) of the Constitution) to give greater effect to child rights in Australia, including, if necessary, section 109 of the Constitution.
5.26Gilbert + Tobin argued, for example, that the Commonwealth could legislate enforceable national minimum standards for youth justice consistent with Australia’s international obligations:
It is well-established that the Commonwealth can rely on the External Affairs Power to introduce law implementing international agreements to which Australia is a party. The assumption of a treaty obligation is sufficient to establish the power of the Commonwealth to make a law to fulfil the obligation.
The ability to legislate to discharge an international obligation is not limited to matters otherwise within the Commonwealth’s legislative competence. As held by Brennan CJ, Toohey J, Gaudron J, McHugh J And Gummow J in Victoria v Commonwealth (1996) 187 CLR 416 at [30]:
According to basic constitutional principle…the intrusion of Commonwealth law into a field that has hitherto been the preserve of State law is not a reason to deny validity to the Commonwealth law provided it is, in truth, a law with respect to external affairs.
The Commonwealth, therefore, has power to legislate with respect to the youth justice system despite that being a matter for the states and territories.
5.27Gilbert + Tobin further noted that, under the territories power (section 122 of the Constitution), the Commonwealth has a general power to legislate for the territories:
The Territories Power is a plenary power that enables the Commonwealth to make laws for the territories which would normally be within the power of State legislatures. As noted by the Australian Law Reform Commission, the Commonwealth’s powers to pass laws under s 122 is very broad.
TheCommonwealth could enact legislation setting minimum standards for youth justice to apply to the Australian Capital Territory and Northern Territory in reliance on the Territories Power alone. While the jurisdictional reach of this power is limited, the Territories Power gives the Commonwealth broad scope to address human rights breaches in the territories.
5.28MsNatalie Lewis, Commissioner for the Queensland Family and Child Commission, also endorsed enforceable national minimum standards as a key action that could be undertaken by the Australian government:
There should be clear, consistent expectations of all Australian jurisdictions such as legal recognition of the status of children as distinct from adults and ensuring those differences are not readily disregarded or ignored based on what is convenient or in the limited capacity of the system or its actors. There should simply be rights-affirming minimum standards about the use of custody and the treatment of children in custody, including, for example, establishing a national policy position regarding the definition and impacts of isolation upon children and perhaps a prohibition of the use of solitary confinement of children and all disciplinary measures that constitute cruel and degrading treatment. This too would make an amazing difference. TheCommonwealth can and should demonstrate leadership requiring states and territories, at a minimum, to provide access to requisite supports to make successful reintegration actually viable and to safeguard the standards of care and the continuity of care such as health, mental health and disability supports, regardless of whether a child is in custody or in their community.
National standards
5.29The National Standards for Youth Justice in Australia (the Standards) is a set of aspirational standards of practice for child-centred youth justice services. Itsauthor—the Australasian Youth Justice Administrators (AYJA)—intends that the Standards will ‘promote better outcomes for young people, their families and communities who come into contact with the youth justice system’.
5.30The Standards are complemented by the AYJA’s Principles of Youth Justice in Australia (the Principles), which have been endorsed by the states and territories. ThePrinciples comprise a foundation document for child justice in Australia, and encompass the various themes examined in Chapters 1 to 4, for example:
offending behaviour is prevented and young people are diverted from the justice system
effective support to victims of youth offending
effective policy and service responses to address the over-representation of Aboriginal and Torres Strait Islander young people in the justice system
service responses are evidenced-based
developmental needs of young people are addressed
interventions are informed by the drivers of offending and the assessed risk of future offending
health and mental health needs of young people are addressed.
5.31Australian Children’s Commissioners and Guardians (now Australian and New Zealand Children’s Commissioners, Guardians and Advocates (ANZCCGA)) has previously noted that the Standards are based upon several international instruments (such as the Standard Minimum Rules for the Administration of Juvenile Justice 1986 (Beijing Rules) and the Rules for the Protection of Juveniles Deprived of their Liberty 1990 (Havana Rules)).
5.32In addition, Mr James McDougall, Co-Chair of the Australian Child Rights Taskforce (ACRT), drew attention to the Child Safe Standards recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse (2012–2017):
Think of what could happen if the child safe standards were applied, as they should be, to youth justice and to youth justice detention. If there were a full national enforceable system that sought to apply child safe standards, that would go a long way to ensuring that many of the crises that we see occurring at a state and territory level are less likely to occur.
Need for enforceable national minimum standards
5.33Submitters and witnesses supported enforceable national minimum standards to ensure that children and young people’s human rights are upheld and protected in the child justice system. They argued that there are currently no such standards, with the Standards being purely aspirational.
5.34The Law Council submitted that cases of human rights breaches in Australian youth detention and watchhouse facilities—some of which have been highly publicised—illustrate a clear need for enforceable national minimum standards.
5.35Similarly, SNAICC submitted:
Australia has existing frameworks for national standards in child justice systems, including the standards developed by the Australasian Youth Justice Administrators and the position statements on treatment and conditions by Australian Children’s Commissioners and Guardians.
While these frameworks are a good starting point, they operate primarily as guidance material and are non-binding and unenforceable. A number of highly-publicised cases of egregious mistreatment and human rights breaches in Australian youth detention facilities illustrate they are not sufficient to ensure just, equitable and humane treatment in child justice systems.
These rights breaches are characterised by racial discrimination against Aboriginal and Torres Strait Islander children, harsh prison-like conditions, the use of solitary confinement as punishment, insufficient rehabilitative and education programs, the inappropriate use of force, restraints and strip searches, inadequate supports for Aboriginal and Torres Strait Islander children with a disability, staff shortages and staff’s lack of cultural competency and skill.
5.36The ACRT concurred that there is ‘ample evidence that [the] unenforceable guidance has been insufficient to ensure appropriate practices and protections for children and young people in youth justice detention’.
5.37To illustrate its point, and emphasise the importance of appropriate practices and protections, the ACRT referenced the Banksia Hill Detention Centre in Western Australia as a youth detention centre where concerns about the treatment of children and young people have been raised for over 10 years:
[Following investigations by the Inspector of Custodial Services (WA)] the Department [of Justice] committed to a reform program and yet in July 2022, deemed it necessary to transfer a group of child detainees to an adult prison. Reform efforts have apparently been ongoing. Yet since then, tragically one child died after self-harming himself while detained in the youth detention unit of the adult prison in October 2023.
In August 2024 the Commissioner for Children and Young People (WA) released her own report into the implementation of the reforms. She noted that efforts to date continued to focus on the behaviours of young people in detention rather than the underlying issues and needs. She called for greater respect for rights of children [detained], and renewed effort to provide the care and support that they need. Later that same month, another child died in Banksia Hill, the second death in youth detention within a year.
5.38The Inspector of Custodial Services (WA), Mr Eamon Ryan, advised that his office conducts cyclical inspections and liaison visits that are underpinned by human rights-based standards. Mr Ryan identified four key benefits of having an agreed set of minimum standards at a national level:
Uniform national standards would provide clarity and consistency to guide both a state-wide and nation-wide approach to oversight, that is aligned in understanding, focus and benchmarks.
Transparent, accessible, consistent, and agreed national standards would provide guidance for practice and policy, for staff both working within and managing facilities across each state.
Agreed national minimum standards would provide a consistent best practice mechanism for evaluations, recommendations and follow up actions for all state-wide oversight bodies.
A shared set of minimum standards across Australia would allow for directly translatable and cross-applicable methodologies, findings, and recommendations across state-wide oversight bodies.
5.39The AHRC considered that, in addition to the non-binding Standards, ‘there is no mechanism for public accountability on how these Standards are being implemented’. It argued that the Standards should be strengthened to have greater force and accountability, as consistent standards for monitoring the provision of child justice services nationally are central to protecting children and young people’s rights.
5.40In support of its argument, the AHRC highlighted that some states and territories have developed their own standards to guide the inspection and monitoring of youth detention facilities. However, ‘these standards are not consistent between jurisdictions, with variability in data collection, public reporting, accessible complaints mechanisms and consequences for improper conduct’.
5.41Further, the AHRC argued that the independent bodies established under the Optional Protocol to the Convention Against Torture (OPCAT)—the National Preventive Mechanism and the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment—have also failed to provide the necessary level of oversight (see Chapter 4).
5.42The ACRT submitted ‘monitoring against National Standards would, at a practical level, drive a greater level of policy coherence across key strategies and programs’.
The challenge for Australian governments
5.43Stakeholders acknowledged that there would be challenges in the development of enforceable national minimum standards, ranging from commitment to their development and the extent to which they might be enforceable.
5.44The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) queried whether there is sufficient political will to agree to enact minimum standards consistent with Australia’s international obligations. It noted that, in1997, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1995–1997) recommended ‘National Standards Legislation for Juvenile Justice’, a recommendation that has not been implemented nearly 30 years later.
5.45The WA Inspector of Custodial Services acknowledged that all states and territories would need to agree on the form and content of national standards, including some measure of codification to ensure enforceability in each jurisdiction. Mr Ryan noted that the issue of enforceability is far more complex than that of form/content, as each state and territory has responsibility for its own youth justice system. Further, ‘such reforms and agreements have proved to be difficult in the past’.
5.46Several submitters offered views on the potential content of national standards, which they considered should centre on children and young people’s human rights, asset out in international law. The AYAC submitted, forexample, that Australia’s approach must be rights-based and consistent with evidence-based best practice and international obligations:
National minimum standards for youth justice should include, at a minimum:
prioritising prevention and early intervention
implementing good practice principles in diversion of First Nations young people from the youth justice system
making a genuine commitment to First Nations self-determination
raising the minimum age of criminal responsibility to at least 14 years in all jurisdictions
reserving detention as a true measure of last resort
ensuring that children and young people are not detained in the same settings as adults
ensuring that Child Safe Standards are implemented and adhered to in youth justice settings
banning the use of detention practices that violate the rights of children and young people, including the use of spit hoods, isolation, strip searches, and unnecessary restraint.
5.47As noted throughout this interim report, submitters and witnesses strongly supported specific child rights enshrined in the CRC: setting the minimum age of criminal responsibility at 14 years without exception (Article 40(3)(a)), using detention only as a measure of last resort (Article 37(b)), and restricting harmful isolation and restraint practices (Article 37(a)). Theytherefore argued that these rights should be explicitly covered by national standards.
5.48Consistent with national frameworks and the principle of self-determination (see Chapter 3), the NATSILS reiterated that ‘nationally aligned minimum standards’ must be developed in partnership with First Nations people. SNAICC agreed and suggested that ‘as an established shared decision-making forum, the [Justice Policy Partnership, JPP] is the most appropriate mechanism for this work to progress’.
5.49The Law Council endorsed many of the AYJA Standards, which, it noted, are the product of extensive jurisdictional consultations, as well as comprehensive review exercises by key advisory groups. However, it considered that the Australian government must take action and lead the development of national minimum standards:
…the Commonwealth Government is well placed to take a leadership role and meaningful action to ensure compliance with international obligations related to youth justice and incarceration arising from human rights convention.
A National Taskforce
5.50The National Children’s Commissioner has stated that ‘increasingly, there is support for a nationally coordinated approach to child justice reform’.Further, there is broad agreement that this reform must take place in a wider context:
Decades of evidence show that criminal justice systems alone cannot fix offending by children, and that prevention and early intervention requires coordinated action from systems across health, education and social services. This systems reform crosses portfolios and appropriately requires the attention of National Cabinet [Recommendation 2 of the Help way earlier! report].
5.51As foreshadowed in paragraph 4.98, the Law Council agreed:
We are all responsible for ensuring the safety and dignity of children in our society, and a national approach is needed in which the Commonwealth Government works with the states and territories to achieve the necessary reforms in concert, in line with their respective roles and responsibilities. The emphasis must be on ensuring that children are connected with their families, education and culture. They must be safe, fed, housed, healthy, active and their wellbeing prioritised. This in turn, will contribute to community safety.
5.52Law Council representative Mr McAvoy SC supported the establishment of a National Taskforce, saying that it would be ‘appropriate in that [reform] needs a collective cross-portfolio multidisciplinary approach if people are serious about this’.
5.53The Help way earlier! reportnoted that other social problems have benefited from a national approach, for example, the National Plan for Ending Violence Against Women and Children 2022–2031.
5.54Ms Jacqueline McGowan-Jones, Commissioner for Children and Young People (WA), similarly recognised that there are a range of multinational strategies and approaches in which ‘the Commonwealth has a stake’, however:
It is absolutely unfathomable to us that the Commonwealth—when it is responsible for the human rights of children and has signed up to the UN Convention on the Rights of the Child, the UN Declaration on the Rights of Indigenous Peoples and the UN Convention on the Rights of Persons with Disabilities and many other similar ones—is standing aside. TheConstitution enables it, under [the] external affairs powers, to be involved. They use carrots and sticks for education: 'We'll give you this much money, but only if you do X, Y and Z.' Well, it's time for the Commonwealth to step in.
A coordinated national approach
5.55Stakeholders identified coordination among jurisdictions, systems and services as a particular problem that must be addressed by all governments in any reform of the child justice system. SNAICC’s Ms Liddle stated that there is nothing bringing everything together, an understanding or component that she described as ‘glue’.
5.56Ms Liddle provided the following example of how ‘glue’ could help to address multiple risk factors and lead to practical outcomes, for example, improved school attendance:
We talked to families, and families and the Aboriginal liaison officers all said the same thing: 'Kids aren't well enough. They're sick. They've got lice. They've got scabies. They can't hear.' It wasn't until we found a way—we'd go out and we'd go, 'Who's going to do this?' There was no glue in the middle. Health services deliver health. The family services deliver family services. This one delivers that. But, in the middle, there was no glue pulling these things together. This particular example found that in Sadadeen [asuburb in Alice Springs], which was having the most difficulty in attendance, once they brought in a health program that brought together all of those bits and pieces and found the dollars—which were miniscule; they were $100,000—just to link these together with a worker, then children, who had been attending school at about 10 per cent, were attending school at 90 per cent because they were actually well enough and comfortable enough to attend school. They were addressing those underlying things that make it almost impossible for that child to engage.
5.57Ms Lillian Gordon, Acting National Commissioner, National Commission for Aboriginal and Torres Strait Islander Children and Young People, said:
The glue for me is exactly that coordinated approach and understanding each of those things that are happening. What's working? What's not? But, also, how does the glue remain the glue? One of the points made was that the glue seemed to be able to be undone fairly quickly, even when that glue had been in place for a long period of time or the evidence had pointed to it having worked for so long. For me, part of this role is thinking about how we keep that glue intact long enough to make sure that our children and young people are safe and protected and that their rights are at the very core of these things.
5.58Dr James Beaufils, Senior Research Fellow at the Jumbunna Institute for Indigenous Education and Research, emphasised that, for him, the ‘glue’ is the community involvement:
There have been a lot of analogies used about glue, and what the glue is that holds X and Y together, or that improves child protection or youth justice. What is that glue? It really does come down to accessibility and assistance in accessing funding for community organisations and assessment groups... [I]f we look critically at it, that evidence and research, or blueprint construction or glue manufacturing, is not coming from our communities[.]
5.59UNICEF Australia representative Ms Breeze expressed concern that ‘policy and service delivery with respect to Australia's children is fragmented and siloed’, meaning that it is difficult to obtain a ‘sufficient view across [the] critical domains of child wellbeing’.
5.60UNICEF Australia submitted that Australia needs a ‘coordinated, nation-wide reform of the child and youth justice system’, such as would be provided by a National Taskforce and a 10-year cross portfolio roadmap supported by a national plan:
…initiatives should sit within a broader national plan that prioritises child safety and well-being and encourages nationally coordinated responses to issues affecting children and young people.
A National Children’s Plan (The Plan) could provide this structure, establishing a clear vision for children and young people in Australia and providing a long-term, comprehensive and overarching framework for all policy and decision-making that affects children and young people. ThePlan would include clear policy and investment commitments, and implementation plans to ensure they are translated into effective action.
The Plan would include a number of policy focus areas identified as indicative priorities to address the most significant underlying drivers of children’s rights violations and impediments to better outcomes for children and young people in Australia. One of these twelve policy focus areas would include Rights in youth justice.
5.61Similarly, AYAC argued that the Australian government should introduce a ‘National Strategy for Children and Young People’ that enables the coordination of actions across different jurisdictions/portfolios. It supported a social determinants approach to child justice reform, arguing:
…strong collaboration across different portfolios beyond the justice sector is required – including education and early childhood, disability, health and mental health, drug and alcohol, domestic violence, child protection, housing, and employment sectors – as well as cooperation between jurisdictions. A National Strategy for Children and Young People, with associated implementation and support mechanisms, would play a vital role in guiding and coordinating this work.
5.62The ACRT submitted that national leadership is required to drive reform initiatives, with an integrated framework of governance arrangements that enables monitoring and accountability:
Appropriate national governance arrangements should be in place to support and guide the efforts of national policy frameworks and the efforts of state and territory governments. Monitoring and leadership are required to make the necessary sustainable investments in coordinated systems reform. With an integrated framework of governance arrangements, Australia’s various policy and practice frameworks and service systems (including the youth justice systems and those that should work alongside them) can comply with international human rights obligations and ensure sustained systems reform and improved outcomes for children and communities.
5.63Ms Julie-Ann Guivarra from the National Indigenous Australians Agency advised that the Australian government is trying to address practical issues—such as fragmented or uncoordinated responses—through the National Agreement’s five policy partnerships [see Chapter 3]. Ms Guivarra advised that ‘a lot’ of these partnerships have been through mapping exercises to identify what services are being provided by each level of government:
[W]hether the footprint is similar and whether we could be doing this better, those are the sorts of questions that people are trying to work through in those policy partnerships…[T]hey're by no means perfect, but they are at least an opportunity for people at the federal level to have discussions with their state and territory counterparts and of course the Aboriginal community controlled organisations at various levels.
5.64Ms Esther Bogaart, First Assistant Secretary, First Nations and Justice Policy Division at the AGD, confirmed that work has progressed on cross-sector partnerships:
The first priorities for cross-sector partnerships with the justice system that we've commenced work on are the disability and health sectors. At the last JPP meeting on 19 and 20 November it was agreed that we would start scoping work on a cross-sector partnership in youth justice. There is significant work under way on that strategic framework. We have working groups or subgroups set up for each of those, co-chaired by both a state-or-territory representative and a non-government representative. That work is being progressed and reported back to the JPP.
The voice of children and young people
5.65AYAC cautioned that young people, including those with lived experience and Aboriginal and Torres Strait Islander children and young people, must be meaningfully engaged in youth justice policy development:
Young people have the right to have a say on issues that impact them. Thisright is enshrined in the United Nations Convention on the Rights of the Child (UN General Assembly, 1989). Decision-making bodies dealing with youth justice policy development and review should therefore include youth representation, with places designated specifically for First Nations young people, and young people with lived experience of the youth justice system (Commission for Children and Young People, 2021).
However, representation and participation is only the first step. To avoid tokenism, government and other youth justice system entities must commit to acting on the advice and recommendations they receive from young people. They must also commit to ‘closing the loop’ – that is, informing young people of how their input has been used.
AYAC also notes that short submission timeframes, commonly employed in parliamentary inquiries, do not enable meaningful engagement with young people. This contravenes the above right.
5.66Several witnesses endorsed AYAC’s remarks about the need for policy and decision-makers to more meaningfully engage with and incorporate the views of children and young people, for example:
Ms Zoë Robinson, Advocate for Children and Young People (NSW), said that ‘policymakers and legislators need to consistently sit with children and young people’.
NAPCAN’s Ms Waters stated that ‘young people are not passive recipients. We want to hear their lived experiences in the decisions that impact them’.
Justice Action’s Mr Brett Collins remonstrated that ‘we are all talking about the kids when, in fact, they should be encouraged to speak for themselves’.
Human rights law reform
5.67As indicated earlier in this chapter, stakeholders argued that the Australian government must lead by example, including through the exercise of its legislative function. In particular, several submitters and witnesses explicitly called for human rights law reform.
5.68The AHRC submitted that Australia needs national human rights legislation, which incorporates the full spectrum of child rights and effectively holds the Australian government to account for protecting child rights across the nation. It noted that the UN Committee on the Rights of the Child and the Parliamentary Joint Committee on Humans Rights support the introduction of a national Human Rights Act.
5.69In the Help way earlier! report, the National Children’s Commissioner recommended that the Australian government also legislate a complementary National Children’s Act. Ms Hollonds explained that this legislation would provide more detailed and specific protections, by providing an architecture for the implementation of child rights across different levels of government:
…there is also value in considering a National Children’s Act to complement a Human Rights Act, such as by establishing minimum standards of treatment for children that would apply at the state and territory level. This might include a legislative basis for national out-of-home care standards and new child justice standards; and minimum standards on places of detention of children (consistent with Australia’s obligations under the [OPCAT]. Itcould also provide a place for the legislative enshrinement of commitments in various national frameworks – such as the Closing the Gap framework – where stronger protection may be warranted.
5.70The Law Council agreed that the Australian government should implement its international human rights law obligations, including through the enactment of a standalone federal Human Rights Act: ‘atpresent, many of the CRC obligations…are not adequately reflected in domestic legislation (with notable exceptions such as the recently-revised Youth Justice Act 2024 (Vic))’.
5.71The Law Council added that, if the Commonwealth were to meaningfully commit to Australia’s obligations under the CRC, this would signal to state and territory governments that the obligations must be taken seriously:
Despite failures across most Australian jurisdictions—most notably the Commonwealth—to implement international human rights legal obligations fully into domestic legislation, meaningful commitment to Australia’s obligations under the CRC must nevertheless be a priority for leadership by the Australian Government. Failures by states and territories to take these obligations seriously must be addressed directly. A significant step forward in this regard would be the establishment of a National Taskforce and supporting overarching recommendations, such as for a National Cabinet-led response.
5.72SNAICC argued that a federal Human Rights Act is a vital part of all governments’ coordinated action towards a safer child justice system, and it articulated the benefits of such an Act, as follows:
A strong, legislated human rights framework will enable the Commonwealth Government to drive practical change across child justice systems. A federal Act would ensure there is no gap in human rights protections in such instances where Commonwealth and state and territory governments have an agreement to work together, such as through the National Agreement and the JPP. This would ensure that even under the National Agreement, where policy is to be made through shared-decision making, all government involvement and reform to child justice systems is guided by the human rights of Aboriginal and Torres Strait Islander children.
A federal Human Rights Act accompanied with sufficiently empowered oversight, accountability and complaints functions…would also strengthen domestic complaints pathways for child rights breaches in justice systems, and enhance jurisprudence on the implementation of human rights in Australia. It would provide a consistent and relevant framework for each state and territory to enact comprehensive human rights legislation of their own, or update extant jurisdictional human rights legislation.