Legal experts say the Commonwealth has the constitutional authority to raise the age of criminal responsibility nationwide, as states and territories continue resisting Closing the Gap incarceration targets.

Last year, the Northern Territory's CLP government lowered the age to 10, saying it was part of its electoral mandate. More recently, the NT argued that Closing the Gap goals cannot come at the expense of community safety, rejecting federal calls to reduce incarceration rates, especially for those on remand.

The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) says Prime Minister Anthony Albanese has both the legal power and moral obligation to intervene, despite previously declining to step in on NT policy.

"The Federal Government needs to address the human rights violations that our children are suffering as a result of state and territory government policies," NATSILS CEO Karly Warner said.

"The Prime Minister shouldn't need to be persuaded that 11-year-olds don't belong in watch houses, or that bringing back spit-hoods is an extreme retrograde step."

Legal advice is clear

New legal advice received by the Justice and Equity Centre argues the Commonwealth can act under section 51(xxix) of the Constitution — the external affairs power, famously used by the Hawke government in the Franklin River case — to meet international obligations.

Justice and Equity Centre CEO Jonathon Hunyor said they received advice from barristers Kate Eastman AM SC and Emma Dunlop that the "Commonwealth has power to make laws to protect children and hold states and territories accountable".

"The Commonwealth Government needs to raise the age of criminal responsibility to 14 across all jurisdictions and set minimum standards for the treatment of children in criminal legal systems," Mr Hunyor said.

"This advice makes clear that the Commonwealth has the power to keep our children safe — it is now up to the Prime Minister and his government to make it happen."

NATSILS and the Justice and Equity Centre have written to the PM, urging Canberra to set 14 as a national minimum, alongside standards for how states and territories treat children in detention.

Currently, only the ACT has raised the age of criminal responsibility to 14, whilst Victoria has raised it to 12 (backtracking on its promise to increase it to 14).

"As community members — as Aboriginal and Torres Strait Islander people who are deeply impacted by dangerous laws that harm our communities — we believe the Prime Minister has a moral obligation to protect our children," Ms Warner said.

Independent Senator Lidia Thorpe has also been outspoken in her calls for the federal government to do more to pull the states and territories into line. She says the latest legal advice is just further proof the Commonwealth needs to act immediately on youth justice issues nationwide, arguing they have "both the power and the evidence that something must be done".

"Children dying by suicide from known hanging points, children locked in solitary confinement in police watch houses for days with the lights left on, children with disabilities assaulted, children denied food as a form of coercion – the list of abuse goes on," she says.

"Time and again, human rights bodies have told the government this treatment violates the international agreements Australia has signed up to."

Jurisdictions disregarding Closing the Gap

Data from the Australian Institute of Health and Welfare shows 80 per cent of children in detention nationally in 2023–24 were unsentenced. In the NT, that figure was 99 per cent.

Along with the NT, other jurisdictions have seemingly pushed back on their Closing the Gap responsibilities.

In Queensland, laws introduced — ostensibly titled 'adult crime, adult time' — mean children as young as 10 can be sentenced to life in prison, whilst the number of children being housed in adult watch houses has continued to rise, despite outrage from a significant number of organisations.

At an August meeting of the Standing Council of Attorneys-General, federal attorney-general Michelle Rowland pressed states on Indigenous incarceration rates, but her Queensland counterpart, Deb Frecklington, reportedly responded that her government "won't be changing anything".

Australia is a signatory to both the UN Convention on the Rights of the Child and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), with most comparable countries setting the minimum age of criminal responsibility at 14.

Last week, Aboriginal leaders from across the country issued a joint statement to the Prime Minister calling on the government to respond to a nearly two-year-old Senate report, which called for all Commonwealth legislation and policy to be consistent with UNDRIP.

They also highlighted "failures" in the criminal and child justice systems, and urged the incorporation of the UN Convention on the Rights of the Child into law, including national standards for children in detention, raising the age of criminal responsibility, and an independent body to investigate Indigenous deaths in custody.

"It is unacceptable that issues identified in the Royal Commission in 1991 remain unaddressed," the leaders, who included Social Justice Commissioner Katie Kiss, former Social Justice Commissioners Mick Dodson, Tom Calma, Mick Gooda and June Oscar, and former MPs Ken Wyatt, Linda Burney and Patrick Dodson said.

"Every year without action entrenches injustice. Commitments by state, territory, and federal governments are on paper. Now they must be delivered."

Commonwealth must act

Appearing at a Senate inquiry into youth justice earlier this year, senior barrister Tony McAvoy SC said Australian jurisdictions "appear to be openly abandoning our country's international human rights obligation".

"Unless there is some commonwealth action, this will continue to be the case. It is not a question of if the commonwealth should act, but what it should do," he said.

"The commonwealth could legislate; the commonwealth could develop policy; the commonwealth could direct funding towards activities which promote and facilitate observation of Australia's international human rights obligations."

Senator Thorpe says the federal government legislating standards is vital to ensuring the safety of children across the country.

"This is not about a federal power grab. This is about establishing standards and obligations that protect human lives and children's safety," she said. "Just because children are in prison does not mean their lives, health and safety don't matter."