Hundreds of pages of documents produced to the Senate reveal the federal government's talking points for pushing back against calls to raise the age of criminal responsibility to align with international standards, even as legal advice argues they have the power to do so.
The federal government has faced sustained pressure from Indigenous, human rights and legal groups to address the overrepresentation of First Nations children in custody.
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, 734 children were detained across Australia, with almost 62 per cent identifying as Indigenous.
Despite the Closing the Gap agreement, some states and territories have pursued policies described as "knee-jerk" and "lazy", while acknowledging those measures are likely to increase the number of children in detention.
Legal advice says Commonwealth could intervene
Legal advice obtained last year by the Justice and Equity Centre (JEC) from barristers Kate Eastman AM SC and Emma Dunlop found the Commonwealth could intervene under section 51(xxix) of the Constitution to meet its international human rights obligations.
The advice argues the Constitution "provides the Commonwealth Government with legislative power to prescribe a minimum age of criminal responsibility for offences against state and territory law to the extent such a law is appropriate and adapted to give effect to Australia's obligations" described in sections of the United Nations Convention on the Rights of the Child — ratified by Australia in 1990.
"Section 51(xxix) of the Constitution provides the Commonwealth Government with legislative power to set minimum standards for the treatment of children and young people in state and territory criminal legal systems," the advice reads.
In the wake of the public release of that advice, redacted documents produced to the Senate show government talking points directing the Attorney-General on how to respond to calls for raising the age of criminal responsibility, repeatedly emphasising that youth justice is a matter for states and territories.
While numerous meeting notes with stakeholders and Indigenous legal organisations state that Australia promotes and protects the rights of the child, bolded text throughout the documents instructs: "The Government does not comment on legal advice."
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A meeting brief prepared for Attorney-General Michelle Rowland ahead of a September meeting with then-chair of the National Aboriginal and Torres Strait Islander Legal Service (NATSILS) Karly Warner, current NATSILS chair Nerita Waight and NATSILS general manager Melissa Clarke stated the Attorney-General's Department "has not considered national minimum standards for youth justice at this time".
"While we acknowledge NATSILS calls for greater Commonwealth leadership in this space, states and territories [redacted] are unlikely to sign up to any minimum standards that affect their responsibility for this issue," the briefing notes read.
Both Queensland and the Northern Territory have resisted federal calls for youth justice legislation consistent with Closing the Gap commitments. Last year, Northern Territory Attorney-General Marie-Clare Boothby said her government "acknowledges" the Closing the Gap agreement, but it "cannot come at the expense of community safety".
Legal advice prepared for the same meeting stated: "The Government's general approach is not to intervene in areas that are primarily the responsibilities of the states and territories."
Resistance to intervention on youth justice reform
Two weeks after the September meeting, Ms Rowland responded to Ms Warner's citing of the JEC legal advice. In a letter, she argued the government "remains committed to reform that will enable communities to establish locally tailored initiatives that address the underlying causes of incarceration", but noted, "state and territory governments have primary responsibility for criminal justice policy and legislation".
There is no mention in the letter about JEC's legal advice arguing the Commonwealth can implement minimum standards.
The September meeting came after Prime Minister Anthony Albanese argued the government would "need to be convinced that people in Canberra know better than the people in the Northern Territory to deal with these issues".
Highly redacted briefing notes prepared for the Joint Council on Closing the Gap meeting in November instructed that, if asked about Commonwealth intervention on the minimum age of criminal responsibility, ministers should highlight that the issue falls within the constitutional remit of states and territories.
"Our efforts should be focused on increasing accountability for states and territories to meet their commitments under the Closing the Gap agreement," the notes read.
"The Government's general approach is to not intervene in affairs that are primarily the responsibility of self-governing states and territories."
Similar briefing notes were prepared for meetings with Senator Lidia Thorpe and Children's Commissioner Deb Tsorbaris in March, and with Coalition of Peaks Lead Convenor Donnella Mills in May.
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It remains unclear, outside of the Northern Territory — where the Commonwealth provides significant funding — what mechanisms the federal government has used to increase accountability for jurisdictions failing to meet Closing the Gap targets.
Federal Indigenous Australians Minister Malarndirri McCarthy has previously suggested the Commonwealth has financial mechanisms available to hold the Northern Territory accountable.
"We have levers that we can pull," she said in February, "and I know that through the Northern Territory Remote Aboriginal Investment...that is certainly an agreement between the Commonwealth and the Northern Territory where I have pushed for those levers to be looked at."
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".
International scrutiny intensifies
The documents emerge amid growing domestic and international criticism of Australia's youth justice system.
Over the past two years, children as young as 11 have been held in adult watch houses, the Northern Territory government has reintroduced spit hoods in youth detention despite recommendations from the Don Dale Royal Commission, and some state premiers have publicly supported life sentences for children.
The Productivity Commission's latest Report on Government Services shows youth detention costs an average of $1.3 million per child each year — more than $3,600 a day — a figure described by the former National Children's Commissioner as a "devastating policy failure".
Last year, the family of late Northern Territory Supreme Court Justice James Henry Muirhead AC QC urged the Prime Minister to intervene, describing the government's measures as "regressive actions".
Despite that criticism, Prime Minister Anthony Albanese appeared to endorse the approach taken by some jurisdictions during his Closing the Gap address in February, saying they "have every right to put the safety of their communities first".
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Last year, the Australian Child Rights Taskforce wrote to the United Nations supporting a complaint lodged by the Human Rights Law Centre and Indigenous international law experts Professor Megan Davis and Associate Professor Hannah McGlade regarding the disproportionate impact of youth justice laws on Aboriginal and Torres Strait Islander children.
In January, the United Nations Human Rights Council criticised Australia's youth detention practices during its Universal Periodic Review, stating children had been "subjected to verbal abuse and racist remarks and restrained in ways that were potentially dangerous", while solitary confinement remained in use.
The criticism followed a visit by the UN Working Group on Arbitrary Detention, whose delegates were denied access to Unit 18 and Banksia Hill Detention Centre in Western Australia, as well as all Northern Territory prisons. The group described Australia's youth justice system as a "stain on Australia's reputation".
In April, more than 1,000 lawyers, academics, advocates and Indigenous organisations signed an open letter to the PM urging him to treat the over-incarceration of Aboriginal and Torres Strait Islander children as a national emergency.
In response, a government spokesperson said "only states and territories can set justice policies" and that "where we can, we are working to support early intervention diversion and, importantly, reduce recidivism".
