Governments are using "harsh, punitive policies" to lock up children while ignoring the evidence, the country's former Children's Commissioner has told a Senate inquiry.
Aboriginal and Torres Strait Islander children remain dramatically over-represented in detention, with incarceration rates more than 25 times those of non-Indigenous children nationally. Despite commitments under the Closing the Gap agreement, both Labor and Coalition governments have continued to introduce tougher laws and harsher penalties for children and young people.
Appearing before the Senate inquiry into youth justice in Parramatta on Friday, former commissioner Anne Hollonds said that while conducting her "Help Way Earlier" report into child justice between 2023 and 2024, she witnessed things she couldn't "unsee".
Ms Hollonds said she had seen "children held in solitary confinement and in concrete police watch house cells with no windows, no natural light or fresh air, no outdoor area, no recreation, [no] rehabilitation or education and no visits from family".
"Not just overnight, but for weeks and sometimes months on end."
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She argued there had been a "handballing" of responsibility for youth justice between the federal, state and territory governments, saying the public needed "government accountability to act on the evidence".
"At a Northern Territory police watch house last year, I asked, 'What do you do when the children are in psychological distress?' I was told they use the restraint chair," Ms Hollonds said.
The restraint chair was infamously used in the case of Dylan Voller, whose image strapped to a chair with a spit hood over his head led to the Don Dale Royal Commission. Many recommendations from that inquiry have since been reversed by the current CLP government in the Northern Territory.
"We are literally back to where we were prior to the Northern Territory royal commission which began in 2016," Ms Hollonds said.
In a submission to the inquiry, Change the Record called on the government to legislate enforceable minimum standards across the child justice system and ensure the treatment of children is consistent with Australia's human rights obligations.
"The Commonwealth Government should immediately sanction states and territories that are not complying with human rights obligations by suspending federal funding and resources, and redirecting these funds into First Nations community-led non-carceral alternatives and solutions," the submission said.
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The inquiry also heard legal advice obtained last year by the Justice and Equity Centre from barristers Kate Eastman and Emma Dunlop found the Commonwealth could intervene under section 51(xxix) of the Constitution to meet its international human rights obligations.
Despite this, an open letter this week signed by more than 200 lawyers, academics, advocates and Indigenous organisations urging Prime Minister Anthony Albanese to treat the mass over-incarceration of Indigenous children as a national emergency was rejected, with the government saying "only states and territories can set justice policies".
Earlier this week, National Aboriginal and Torres Strait Islander Legal Service chair, Nerita Waight, said the federal government had repeatedly attempted to shirk responsibility by blaming the states and territories.
"Not only does Prime Minister Albanese have the power to act, but he also has the moral obligation," Ms Waight said. "Our children are languishing behind bars because of political point-scoring, and the Prime Minister is trying to pass the buck."
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Independent Senator Lidia Thorpe told National Indigenous Times this week the government's response to the open letter was "absolutely disrespectful and condescending".
The senator — a vocal critic of the government's handling of youth justice issues — said the Commonwealth has used the external affairs power to implement "international human rights commitments into Australian law all the time".
"So when the Prime Minister says only states and territories can make decisions about the criminal legal system, it is weak political spin, and it is a lie," she said.
"I asked the Attorney General's department about this during Senate Estimates in August last year, and they confirmed they had reviewed the advice from NATSILS and provided it to Attorney General Rowland. But the Attorney General hasn't responded to this advice. If the government disagrees with this expert legal advice, they should say why. Repeating the same spin isn't good enough."
Ms Hollonds also submitted to the inquiry that Australia has gone backwards on the human rights of children, particularly those with unmet needs, disabilities, and those who have experienced poverty and discrimination.
She said Australia had "reached a point of reckoning".
"We need to urgently transform our approach to addressing crime by children. The problem is not a lack of knowledge," Ms Hollonds said.
"The problem is a lack of accountability for evidence-based action on the safety, rights and wellbeing of Australia's youngest and most vulnerable citizens."
