Share and Follow
Warning: this article discusses youth suicide.
‘Tough on crime’ policies are setting up vulnerable Indigenous children for a life of suffering, legal and human rights experts say.
First Nations advocates are so concerned about the youth justice landscape they have lodged a complaint with the United Nations – saying that lives of Aboriginal children are at risk.
Noongar human rights lawyer and academic Hannah McGlade has submitted a complaint to the United Nations Committee on the Elimination of Racial Discrimination, calling on the UN to take urgent action to protect the rights of First Nations children.
The complaint, supported by the Human Rights Law Centre, documents Australian federal, state and territory governments’ significant, persistent and escalating racial discrimination and human rights violations against Indigenous children.
International law set out by the UN Committee on the Rights of the Child says that 14 should be the minimum age of criminal responsibility.
But in almost all state and territories in Australia kids as young as 10 can be detained – and in some jurisdictions, like Queensland, face a harsher criminal justice system than adults.
“We know from medical experts, including the Australian Medical Association, that it’s very harmful to a child’s health to have them incarcerated at such a young age from 10 years,” Associate Professor McGlade told NITV.
“This is a very dangerous to children who are developing – their brains are still developing their neural pathways.
“We also know that many of the children incarcerated actually have disabilities, neurological disabilities in particular and incarceration makes that situation worse for them.
“It’s not a therapeutic environment at all.
“We’re harming children for life and, in some cases, children are actually suiciding and ending their lives because of the trauma associated with incarceration and dying as a result of cruel, inhumane practices.”
The complaint comes as the Queensland government seeks to expand its controversial “adult crime, adult time” legislation with 20 extra offences.
“What’s happening is the states and territories are putting the truck in reverse,” Dr McGlade, an expert member of the UN Permanent Forum for Indigenous Issues, said.
“This approach is not only failing Aboriginal people and Aboriginal children, it’s failing Australia.”
Queensland is adding a second tranche of laws to existing legislation, which passed in late December, to cover crimes like rape, attempted murder, arson and torture.
Liberal National Party Premier David Crisafulli said the laws would bring serious offenders to justice.
“We promised to restore safety to our communities and to continue delivering strong youth crime laws – that’s exactly what we’re doing,” he told Queensland’s parliament.
Multiple states and territories have recently tightened bail laws and introduced other legal changes to target young offenders, a shift that legal, children’s and human rights experts say will lead to an increase in already high Indigenous incarceration rates.
And, there is no evidence that harsher penalties make communities safer.
In 2023 the UN delivered a scathing assessment of Australia’s prison and detention practices, including the treatment of young people, saying they were inhuman, degrading and in some cases may amount to torture.
Since that time Victoria, Queensland, NSW and the Northern Territory have introduced even harsher penalties for youth offenders and made bail conditions more onerous, leading to a situation where more than 80 per cent of children in detention across the country are on remand.
“Most people probably aren’t aware that the majority of kids in detention actually haven’t been convicted of a crime and they’re they’re incarcerated because they’re not getting bail,” Dr McGlade said.
“Bail laws are becoming increasingly hard to meet the conditions, and we don’t have the options to help vulnerable children at risk to stay in the community rather than being incarcerated.
“So youth prisons and detention centres are filling up when most children inside actually haven’t been found to be guilty of a crime.”
Maggie Munn, First Nations justice director at the Human Rights Law Centre, said Australia’s punitive laws and policies are fuelling a mass incarceration crisis.
“Instead of taking action to stop these human rights violations, governments across Australia are introducing and doubling down on deeply punitive laws that will exacerbate the number of Aboriginal and Torres Strait Islander children in police and prison cells,” Maggie Munn said.
“Our communities have the solutions.
“For decades, Aboriginal and Torres Strait Islander communities have implored governments to take real action on reducing the number of our children behind bars.
“Governments must urgently invest in self-determined supports that address children’s unmet needs, not prisons.”
National Aboriginal and Torres Strait Islander Legal Services chair Karly Warner says the race across jurisdictions to be tough on youth crime is dangerous.
“They’re going to backfire and compound the disadvantage and trauma experienced by too many of our young people and communities,” she said.
The NT Country Liberal Party Government has lowered the age of criminal responsibility from 12 to 10, reformed bail legislation and reintroduced the use of spit hoods.
Queensland’s “adult crime, adult time” policy, introduced in 2024, means children face the same maximum sentences as adults for a number of offences, including life sentences for murder, manslaughter and grievous bodily harm.
That state has also criminalised breach of bail for children.
Changes to bail legislation in NSW and Victoria have also attracted the concern of legal services and justice advocates.
Imprisoning children has never worked to curb crime, Ms Warner said, instead it can make young people more likely to become “trapped in an ongoing cycle” of incarceration.
In NSW and the ACT, Ms Warner said there’s been a 270 per cent increase in the number of bail applications going to the Supreme Court, and an increase in demand in legal services to go with it.
“There’s been no reciprocal increase in funding to try and cope with these dangerous laws that governments around the country are creating,” she said.
“What that means is that not only are children impacted by the laws themselves but they’re more likely to get trapped in the criminal justice system if they’re unable to get the help they need.
“Ultimately what that means is that we’ve got children who are more traumatised, exposed to a life of crime and they’re more likely to go on cycling into adult prisons and making communities more dangerous.”
Time for a rethink
Ms Warner said it is not too late for governments to re-think youth justice laws in their jurisdictions.
“We have seen the tragic consequences of punitive, tough on crime politicking that drives mass incarceration of Aboriginal children with the death of Aboriginal teenagers in youth detention,” she said.
“What is it going to take for government to realise that they are ruining children’s lives and they are making communities more dangerous?”
Dr McGlade agrees and is also calling on all governments to invest in community-led programs that divert kids away from the criminal justice system.
“Really it is about the future of our children and our children’s lives and safety, which is at risk here,” she said.
“We need to make sure that our laws are consistent with our international human rights obligations.
“Incarceration should only be a matter of last resort for children – now in Queensland that important principle has actually been prohibited by law.
“Children can do more time in prison than adults for the same offences.”
A Curtin University study found young people who had contact with the justice system were 4.2 times more likely than their peers to die prematurely, with the most common causes being suicide, traffic accidents and drug poisoning.
Most of these deaths occurred before the age of 25, lead author Stuart Kinner said.
“Young people who have had contact with the youth justice system may have difficult family relationships and are at an increased risk of homelessness, mental illness, substance-use disorder and risk-taking behaviours, making them particularly vulnerable,” he said.
“Achieving better outcomes for these young people will require coordinated, multi-sectoral investments in care that extend beyond the criminal justice system.”
Dr McGlade says much more is needed to support families and children, as recommended by National Children’s Commissioner Anne Hollonds in her report Help Way Earlier!.
“We want to address what’s actually happening with children, give them the support and opportunity that they need,” she said.
“We know that many come from broken families and homes that might by affected by poverty and intergenerational trauma. Many have been exposed to family violence and may be victims of sexual assault.
“And the worst thing that we can do is actually treat them in a cruel, inhumane way through our justice system – that is actually inflaming the situation.
“Children who are incarcerated are more likely to reoffend, they’re not less likely so it’s actually creating communities that are more unsafe.”
Dr McGlade said they were appealing to the UN because governments have refused to engage respectfully with Indigenous people or respect the binding international human rights laws and standards Australia has agreed to.
“We have made this urgent complaint because Aboriginal children’s lives are on the line,” she said.
“These flagrant breaches of UN treaty law have been underlined by racism and neglect in Australian politics.
“We’re calling on the United Nations Committee to find that Australia’s laws, policies, and government inaction are fuelling a mass incarceration crisis, seriously violate Australia’s human rights obligations and must urgently be addressed.
“There must be accountability and reform, we cannot keep going on this path of destruction, violence and racism towards Indigenous children.
“Our kids deserve better and our people deserve better.”
Kids Helpline 1800 55 1800 (for people aged 5 to 25)
Lifeline 13 11 14
