The United Nations Human Rights Council has criticised Australia for the "almost constant increase" in the number of people held on remand and the country's "very low age of criminal responsibility", noting both issues disproportionately affect Indigenous people.
In its five-yearly Universal Periodic Review (UPR) of Australia's human rights record, the Council raised concerns about racism and discrimination, "inadequate" mental health care in prisons, and the country's "continued use of prolonged and indefinite solitary confinement".
The report was particularly critical of Australia's youth detention system, with the Committee against Torture highlighting that the age of criminal responsibility remains 10 in most jurisdictions, that children in detention have been "subjected to verbal abuse and racist remarks and restrained in ways that were potentially dangerous", and that children continue to be held in solitary confinement.
The Committee cited Banksia Hill in Western Australia, Don Dale in the Northern Territory, and Ashley Youth Detention Centre in Tasmania as particularly egregious examples.
Writing in National Indigenous Times on Monday, Nerita Waight, Acting Chair of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), drew attention to the mass incarceration of First Nations children and young people.
"Across this country, Aboriginal children are policed earlier, charged more often, refused bail more readily, and held on remand in conditions that do damage," Ms Waight wrote. "The pipeline is not an accident. It is the predictable result of laws and decisions made by governments, parliaments and courts."
Her comments follow a complaint lodged last year with the UN Committee on the Elimination of Racial Discrimination by Professors Megan Davis and Hannah McGlade, concerning the disproportionate impact of youth justice laws on Aboriginal and Torres Strait Islander children.
Australian Human Rights Commission President Hugh de Kretser attended the review in Geneva and said a number of countries had urged Australia to raise the age of criminal responsibility.
"In most Australian jurisdictions, children as young as 10 can be arrested, prosecuted and jailed," Mr de Kretser said.
"This is inhumane and remains out of step with international human rights standards. First Peoples are hit hardest by these unjust laws. The international community is calling us out on this."
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). In 2024, the Northern Territory reduced it to 10, from 12.
The federal government has repeatedly argued that setting a minimum age is the responsibility of states and territories. However, legal advice obtained last year by the Justice and Equity Centre from barristers Kate Eastman AM SC and Emma Dunlop found the Commonwealth could act under section 51(xxix) of the Constitution to meet its international obligations.
"The Prime Minister cannot pretend this is only a state and territory issue," Ms Waight said. "The Commonwealth has power. It has influence. And it has responsibility. It's time it did something with it to protect Aboriginal children and young people and their communities."
The report also condemned the use of spit hoods — reintroduced in youth detention in the Northern Territory despite the advice of the Don Dale Royal Commission — and again highlighted the "almost constant increase in the number of persons being held in pretrial detention", largely driven by the number of Indigenous people on remand.
The Committee against Torture recommended that regulations governing remand be "scrupulously respected," and such detention only be resorted to in "exceptional circumstances and for limited periods — taking into account the principles of necessity and proportionality".
More than 120 countries made almost 350 recommendations to Australia, including calls to adopt a national Human Rights Act.
"The Special Rapporteur on slavery recommended that Australia establish a federal human rights law in line with the recommendations of the Parliamentary Joint Committee on Human Rights to provide a comprehensive and coherent framework for the protection of fundamental rights in the country," the report said.
The Committee against Torture also said it "remained concerned the Australian Human Rights Commission doesn't have explicit statutory powers to monitor the "implementation of the country's obligations under the Convention against Torture".
Mr de Kretser said the review showed Australia was falling short of where a modern, wealthy democracy should be.
"A Human Rights Act would require our national government to protect people's rights. It would prevent human rights violations and give people the power to take action if their rights are breached," he said.
"This reform is long overdue. A Human Rights Act is a missing part of our democracy. It would provide a stronger foundation for addressing many of the issues raised during this review."
