The Prime Minister is allowing states and territories to enact policies that result in more children being put in prison, the overwhelming majority of them Indigenous, a parliamentary inquiry has heard.
Aboriginal and Torres Strait Islander children remain significantly over-represented in detention, with incarceration rates more than 25 times higher than those of non-Indigenous children. On an average day in 2025, 730 children were detained across Australia, with almost 62 per cent identifying as Indigenous.
Indigenous groups have criticised state and territory governments for enacting policies they say contradict the Closing the Gap agreement, as well as several of Australia's international human rights obligations.
Appearing at a youth justice Senate inquiry on Tuesday, Nick Epsie, the general manager of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), said the federal government was failing in its duty by allowing this to happen.
"Across states and territories, laws are cropping up that are making communities less safe. Premiers and Chief Ministers know this but lock up children anyway. How can the Prime Minister allow this to happen?" Mr Epsie said.
"The Prime Minister has the legal authority to step up and show leadership, but any meaningful action remains to be seen."
Legal advice obtained last year by the Justice and Equity Centre (JEC) from barristers Kate Eastman and Emma Dunlop argued the Commonwealth could intervene under section 51(xxix) of the Constitution to meet its international human rights obligations. These include mandating a minimum age of criminal responsibility of 14. Currently, only the ACT (14) and Victoria (12) have raised the age of criminal responsibility above 10.
"Children and families are being torn apart," Mr Epsie said. "Children as young as 10 are being thrown in detention. The evidence is clear: if we continue down this path, communities across Australia will be less safe."
Speaking at a First Nations justice reform conference in Sydney last month, JEC chief executive Jonathon Hunyor said the effects of imprisoning children as young as 10 are clear.
"We know this damages children," he said. "It causes trauma in their psychological [and] their social development. It makes them less likely to finish school. Makes them less likely to find a job. It makes them more likely to commit crime."
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The federal government has pushed back on calls to mandate a federal raising of the age, arguing responsibility for justice lies with state and territory governments.
In June, National Indigenous Times reported on internal government documents outlining federal talking points used to resist calls to raise the age of criminal responsibility, with Attorney-General Clare Rowland telling then-NATSILS Chair Karly Warner, "state and territory governments have primary responsibility for criminal justice policy and legislation".
Throughout the documents, officials repeatedly recommend responding to references to the JEC legal advice by stating that "it would be appropriate to indicate that the Australian Government does not typically intervene in matters that are state and territory responsibilities, but continues to work with all jurisdictions to improve justice outcomes for First Nations peoples".
In response to the fourth Universal Periodic Review (UPR) before the UN Human Rights Council in June, the Commonwealth rejected calls from countries including Germany, Norway and France to raise the age. It prompted Change the Record CEO Jade Lane to describe the government's actions as "appalling".
"Australia's overall response to the UPR is appalling and spells more of the same for First Nations communities — leaders who promise transformative change but lack the courage to follow through," Ms Lane said at the time.
Mr Epsie said the conditions in youth detention facilities across the country remain "regressive and deeply dangerous".
"We have seen the reintroduction of spit hoods," he said. "Children are spending days in adult watch-houses. The proportion of Aboriginal and Torres Strait Islander children in detention is increasing, and the majority of them are unsentenced."
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NATSILS again called for the Prime Minister to "call an emergency summit on youth justice," arguing the country is in the middle of a "crisis".
"We urge him to meet his moral obligation to show the leadership Aboriginal and Torres Strait Islander people are calling for," Mr Espie said.
The latest Productivity Commission report, released last month, revealed more than 70 per cent of incarcerated Aboriginal and Torres Strait Islander children in every state and territory were unsentenced.
Nationally, each First Nations child in detention spent an average of 57 days in custody before sentencing. In Queensland — which incarcerates more Indigenous children than any other jurisdiction — that figure rose to an average of 96.3 days, while in Victoria it exceeded 80 days per child.
Whilst the Royal Commission into Aboriginal Deaths in Custody recommended imprisonment be used only as a last resort, Labor and Coalition-led governments across the country have continued to introduce policies that have increased incarceration rates, including stricter bail laws.
In many cases, lawyers say, children spend time in detention before ultimately receiving a non-custodial sentence.
