The Prime Minister must take leadership to stop state and territory governments from passing laws that put more children in prison, the peak body for Indigenous legal organisations says.
The statement from the National Aboriginal and Torres Strait Islander Legal Services follows recent developments in New South Wales and Victoria. This week, NSW seemingly weakened the principle of doli incapax, while earlier this month, Victoria proposed laws that could see children as young as 14 face life imprisonment for certain offences.
Nerita Waight, NATSILS' acting chair and CEO of the Victorian Aboriginal Legal Service, said the developments reflect a "sweeping national trend where we are seeing state and territory governments pursuing punitive policies in the name of political point-scoring".
"These policies not only hurt children and families, but they also make the community less safe," Ms Waight said. "The evidence is clear that locking children up only increases the likelihood they will go on to cycles of future offending and incarceration."
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This week, NSW codified doli incapax — the principle meaning "incapable of wrong," which presumes children aged 10 to 14 cannot form criminal intent — but also seemingly weakened it by specifying when that presumption can be rebutted.
A loophole permits the presumption to be overturned if prosecutors can show the child committed a crime and that the circumstances of the crime demonstrate "beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child's conduct was seriously wrong". The court can make a decision "without or despite" evidence of the child's mental impairment or cognitive issues.
Justice and Equity Centre chief executive Jonathon Hunyor said the legislation will result in more children being "churned through the system; including being sentenced to jail time".
In Victoria, the Allan government's proposed laws — which have not yet been presented to parliament — have drawn criticism from Indigenous, legal, and human rights groups.
2024 NAIDOC Person of the Year Muriel Bamblett said the laws would "do nothing to divert children from crime", arguing instead they will only "ensure they are trapped in the justice system for life."
However, the Prime Minister defended the laws, saying he supports Premier Allan's stance in "taking action to keep Victorians safe and to make sure that messages are sent as well".
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Independent Senator Lidia Thorpe called on the federal government to intervene, warning Victoria's laws undermine Closing the Gap commitments and children's rights. She described the laws as "unfathomably cruel and the most shameful attempt to cling to power", adding that Victoria's approach mirrors harmful policies in the Northern Territory and Queensland.
Ms Waight said the Prime Minister must "address the human rights violations that our children are suffering as a result of state and territory government policies."
"Not only does the Prime Minister have a moral obligation to protect children, he has the legal power to step in," she said.
In September, the Justice and Equity Centre received legal advice from barristers Kate Eastman AM SC and Emma Dunlop, arguing 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.
These include raising the age of criminal responsibility to 14 across all jurisdictions and setting minimum standards for the treatment of children in the criminal legal system. 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).
Last month, Minister for Indigenous Australians Malarndirri McCarthy condemned the "alarming" incarceration rates in the Northern Territory and Queensland, reaffirming her plan to introduce penalties for jurisdictions that fail to meet Closing the Gap targets.
"We urge the Prime Minister to show national leadership by calling a national emergency summit on youth justice, so that leaders from across the country can listen to the voices of Aboriginal and Torres Strait Islander legal experts and leaders in a setting where community-controlled organisations lead the discussion," Ms Waight said.
