Inquiry into Australia's Youth Justice and Incarceration System

About National Legal Aid

Introduction

National Legal Aid (NLA) represents the directors of the eight state and territory legal aid commissions (LACs) in Australia. LACs are independent, statutory bodies established under respective state or territory legislation. They are funded by Commonwealth and respective state or territory governments to provide legal assistance services to the public, with a particular focus on the needs of people who are economically and/or socially disadvantaged.

What we do

NLA brings together the practice experience of the eight Australian state and territory LACs. In 2022-23, LACs provided over 1.7 million legal services to people across the country (internal National Legal Aid data). LAC services 
include:

• legal advice and information;
• legally assisted family dispute resolution (FDR);
• ‘at court’ duty lawyer and social support services;
• representation in contested proceedings and as Independent Children’s Lawyers and separate representatives for children;
• referrals to other legal and non-legal service providers where appropriate;
• community legal education (CLE);
• training for community service providers; and
• specialist training for legal practitioners.

Why we do it

LAC services are provided under the National Legal Assistance Partnership (NLAP) (National Legal Assistance Partnership, 2023) and respective state and territory enabling legislation. Under the NLAP LACs are required to ensure that ‘legal assistance services are planned and focused to people who fall within one or more of the national priority client groups’ including children and young people (up to 24 years) (NLAP Schedule A Commonwealth Priorities, 2020).

In 2022-23, children and young people between the ages of 10 and 19 accounted for 5.5% of the total number of clients of the eight LACs across Australia. This proportion increased to 8.3% of representations and 15.4% of legal tasks (internal National Legal Aid data).

This submission calls upon the experience of LAC lawyers in their work within the youth justice system nationwide. Individual LACs may make their own submissions to this Inquiry about the circumstances of their respective jurisdictions.

Summary of Recommendations

Recommendation 1

Focus on the Closing the Gap Target 11 - By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by at least 30 per cent 

Governments must commit to greater focus and systemic reform to address the Closing the Gap Target 11 in order to address the significant overrepresentation of First Nations children and young people within the youth justice system and in detention.

Recommendation 2

Detention to be a measure of last resort

To ensure children and young people are only ever given custodial sentences as a last resort, governments should commit to:

A. Improved access to legal assistance; 

B. A national co-ordinated approach to raising the minimum age of criminal responsibility to at least 14 years old;

C. Increased use of diversionary programs; and

D. A focus on reducing the number of children and young people on remand.

Recommendation 3

Improved operations of the youth justice detention system

To improve the outcomes and ensure the safety of children and young people who are given custodial sentences, governments should commit to:

A. Prevention of harmful isolation and restraint practices, including prohibition of solitary confinement and the use of spithoods;

B. Adequately trained and supervised staff in detention centres, particularly to ensure care for First Nations’ children is culturally competent; and

C. Improved access to rehabilitation programs, including mental health care, substance abuse and education programs.

Submission

Introduction

A significant amount of investigation and examination of Australia's youth justice and incarceration system has been undertaken in recent years which the current inquiry should draw from and build on. Many of these inquiries have made similar recommendations regarding a number of key themes, as follows:

• the need for a nationally consistent approach to reforming the youth justice system which is trauma informed and focussed on the best interests of the child, rather than punitive;
• the Commonwealth, State and Territory governments should ensure that the youth justice and incarceration systems comply with human rights standards, and meet Australia's international obligations;
• improved early intervention and prevention programs for children and young people at risk of contact with the youth justice system;
• the need for greater focus and systemic reform to address the Closing the Gap Target 11 (By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by at least 30 per cent);
• the need for systemic reform to address overrepresentation in the youth justice system of vulnerable minority groups, particularly children with a disability;
• the principle of ‘detention to be a measure of last resort’ should be facilitated by improved access to legal assistance, a national co-ordinated approach to the raising the minimum age of criminal responsibility to at least 14 years old, increased use of diversionary programs, and a focus on reducing the number of children and young people on remand; and
• the prevention of harmful isolation and restraint practices for children and young people in detention, including a national ban on spithoods, appropriately trained and supervised staff, particularly to ensure care for First Nations’ children is culturally safe and improved access to rehabilitation programs, mental health care, substance abuse, and education programs.

A summary of some of the final reports from relevant inquiries is provided at Attachment A.

We supplement existing work and research with case studies from Legal Aid Commissions (LACs) in Attachment B.

A nationally consistent approach to reforming the youth justice system which is trauma-informed system and focussed on the best interests of the child, rather than punitive approach.

Children in contact with the criminal justice system predominantly come from the most “disadvantaged and distressed families, neighborhoods, and communities” (Goldson B et al., 2020, Youth Justice and Penalty in Comparative Context, Routledge, Abington, UK. p. 6.) and are exposed to “considerable disadvantage in early life” (Baidawi and Sheehan, 2019, Crossover kids: offending by child protection-involved youth, Australian Institute of 
Criminology, Canberra, p. 2.). Formal intervention should focus on identifying and addressing the complex social, economic, and environmental factors contributing to the offending behaviour. Investment in evidence-based diversion interventions is an economically and socially efficient response to youth offending. Engagement in the formal criminal justice system must be a measure of last resort.

Youth incarceration in Australia has led to significant negative outcomes. Studies show that First Nations children, those with disability, and children from disadvantaged backgrounds are disproportionately overrepresented in the youth justice system and young people in detention face higher risks of mental health issues, substance abuse, and further involvement in the criminal justice system. Incarceration disrupts education, employment prospects, and community relationships creating a cycle of disadvantage and recidivism. Evidence across Australian jurisdictions suggests that incarceration does little to rehabilitate young offenders. Instead, detention increases the likelihood of re-offending and contributes to the stigmatization and marginalization of young people. The limited availability of rehabilitation programs, inadequate mental health services, and the use of punitive measures such as solitary confinement further exacerbate the harm caused by incarceration.

As noted in the recent report by the Australian Human Rights Commission, “national leadership is required to reimagine a new approach to youth detention and lift it out of the political ‘tough on crime’ cycle” (National Children’s Commissioner, 2024, 'Help way earlier!’ How Australia can transform child justice to improve safety 
and wellbeing, Australian Human Rights Commission, Sydney, p. 26.). 

Compliance with human rights standards in youth detention

Youth detention centres across Australia have a mixed record of compliance with human rights standards. Numerous reports have revealed non-compliance with the United Nations Convention on the Rights of the Child, including instances of children being subjected to inhumane treatment. The 2017 Royal Commission into the Protection and Detention of Children in the Northern Territory exposed systemic abuse, leading to calls for reforms across all states and territories (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017.). Despite these findings, many detention centres continue to operate in ways that contravene international human rights obligations. For example, the use of solitary confinement, which has been deemed a form of torture under international law, persists in some jurisdictions. 

Children and young people with disability, including those with neurodevelopmental disorders such as Fetal Alcohol Spectrum Disorder (FASD), are often detained without receiving the support they need, further compounding their vulnerability.

Australia is a signatory to several international conventions that outline its obligations regarding youth justice, including the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). These conventions establish that children have the right to be treated with dignity, to be free from torture, and to have their best interests prioritised in all actions concerning them.

Under these obligations, Australia must ensure that youth justice practices are consistent with international standards, including the prohibition of cruel and degrading treatment, the use of detention as a last resort, and the provision of rehabilitation and reintegration services.

Improvements to early intervention and prevention approaches

The National Children’s Commissioner has noted that the youth justice system is not equipped or designed to provide the kind of holistic early intervention and support that is needed by the vulnerable and disadvantaged children who are engaging with the system. The Report recommends taking a public health approach to children’s involvement with the criminal justice system means focusing on prevention and early intervention, and specifically recommends actions to meet the basic needs of children, their families and communities, including in health, education, and social services such as housing and income security (National Children’s Commissioner, 2024, 'Help way earlier!’ How Australia can transform child justice to improve safety and wellbeing, Australian Human Rights Commission, Sydney, Recommendations 5 to 11.). 

Children and young people with a disability

The NLA submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the DRC) included a number of recommendations relating to supporting children and young people with disability and their families to reduce contact with the criminal justice system (The NLA submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2022).

The final report of the DRC found that children with disability are overrepresented in youth detention and are exposed to substantial risks of violence, abuse and neglect (Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2023, Vol. 8, Criminal justice and people with disability, Sydney, p. 81.). There is a lack of diagnosis and data pertaining to children with disability in contact with the criminal justice system and many may progress through the criminal justice system without their impairments being fully recognised and considered. NLA support’s the DRC recommendation that timely screening, expert assessment, and therapeutic services should be available to children in contact with the criminal justice system (Ibid., Recommendation 8.4).

It is critical that early intervention, targeted support programs, and diversionary measures are established and funded with a focus on children with disability as an overrepresented cohort. These measures must focus on the needs and vulnerabilities of children and be run with appropriate regard to cultural awareness and safety measures.

Closing the Gap

First Nations children are overrepresented in the Australian youth justice system. Aboriginal and Torres Strait Islander children and young people account for over 50% of those in detention, despite making up only around 6% of the youth population. This overrepresentation is driven by socio-economic disadvantage and the legacy of colonisation, which has left First Nations communities grappling with intergenerational trauma and disconnection from culture.

The Closing the Gap Target 11 aims to reduce the detention rate of First Nations children and young people by at least 30% by 2031. However, achieving this target requires comprehensive reforms that address the root causes of overincarceration, such as poverty, inadequate access to education and healthcare, and the breakdown of cultural and family structures. Culturally specific, community-led diversion programs and initiatives, such as First Nations Family Led Decision Making, should be prioritised as alternatives to detention.

LACs are required to actively address the socio-economic targets and outcomes within the National Agreement on Closing the Gap and are committed to implementing the priority reforms within the Agreement on Closing the Gap, including building the Aboriginal Controlled Community Organisations (ACCOs) sector (priority 2) and transforming government organisations (priority 3). The Agreement recognises the importance of self-determination, and the vital role ACCOs play in ensuring it is achieved. These reforms are the key to ensuring that real, impactful change can 
happen for First Nations communities.

Consequently, NLA supports additional investment being provided to ACCOs to enable these organisations meet the legal assistance needs of First Nations communities.

Detention to be a measure of last resort

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (United Nations 1985) (the Beijing rules) and the Convention on the Rights of the Child (United Nations 1989) (see also United Nations Committee on the Rights of the Child 2019) states that detention should be considered only as a last resort option for young people. Extensive research has found that detention is damaging and criminogenic, serving to entrench young people further in disadvantage (Clancey, G., Wang, S. and Lin, B., 2020, Youth justice in Australia: Themes from recent inquiries, Australian Institute of Criminology, Canberra, p. 8.).

Improved access to legal assistance

Increased funding for, and access to, legal assistance is critical to reducing the number of children and young people in the juvenile justice system and in detention, particularly First Nations children and young people. In addition, the significant overrepresentation of First Nations children and young people in the justice system requires a focus on culturally safe and specialised legal assistance.

NLA supports a significant overall increase in baseline funding across the legal assistance sector, including for Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services.

A national co-ordinated approach to the raising the minimum age of criminal responsibility to at least 14 years old

Across Australia the minimum age of criminal responsibility (MACR) is set at between 10 and 12 years of age. In 2022 the Meeting of Attorneys-General (MAG) (MAG (Meeting of Attorneys-General), Council of Attorneys-General communique, 2022.) reviewed Australia’s age of criminal responsibility and subsequently, a number of jurisdictions have enacted legislative change or committed to do so:

• In August 2023, the Northern Territory raised the minimum age of criminal responsibility from 
  10 to 12.
• In May 2023, the Australian Capital Territory introduced legislation to raise the criminal age of responsibility to 12 initially (implemented in November 2023), then to 14 within the next 2 years (expected to be implemented in mid-2025). 
• In April 2023, Victoria announced it would raise the criminal age of responsibility to 12 by the end of 2024, and then to 14 by 2027, with exceptions for serious crimes and subject to the design and implementation of an alternative service model. However, in August 2024 the government abandoned its commitment to raising the age to 14 and implemented legislation raising the age to 12.
• In June 2022, Tasmania committed to raising the age of criminal detention from age 10 to age 14. Subsequently, in September 2023 the report of the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings recommended that the Tasmanian Government work towards increasing the minimum age of detention (including remand) to 16 by developing alternatives to detention for children aged 14 and 15 who are found guilty of serious violent offences and who may be a danger to themselves or the community (Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, 
  2023.).

NLA strongly supports raising the MACR to at least 14 years old. There are a number of compelling reasons for raising the MACR to at least 14 years old. They include:

1. the cognitive and emotional development of children, including underdeveloped consequential thinking and impulse control, and the impact of trauma;
2. the stigmatising and criminogenic impact of the criminal justice system and custody on 
   young children;
3. the overrepresentation of children experiencing mental health issues and with cognitive disabilities under 14 years old in the criminal justice system;
4. the overrepresentation of Aboriginal children under 14 years old in the criminal justice system;
5. the overrepresentation of children in out of home care under 14 years old in the criminal justice system;
6. the limitations of the presumption of doli incapax;
7. recommendations from numerous organisations and inquiries in Australia;
8. compliance with international standards; and
9. the availability of alternatives to criminal law responses for children under 14 years old.

NLA recommends a national co-ordinated approach to the raising the MACR to at least 14 years old.

Increase systemic use of diversionary programs

For many children and young people, involvement in the youth justice system is not an appropriate response to problematic behaviour as it further damages and disadvantages already traumatised and vulnerable children and has little deterrent effect (Royal Australian College of Physicians, 2019, Submission to the Council of Attorneys General Working Group reviewing the Age of Criminal Responsibility, p. 3.). Diversion provides a “swift and economically efficient response to offending, which is often non-serious and transient in nature” (Allard, T., Stewart, A., Chrzanowski, A., Ogilvie, J., Birks, D., & Little, S., 2010, “Police diversion of young offenders and 
Indigenous over-representation”, Trends and Issues in Crime and Criminal Justice, No. 390, Australian Institute of 
Criminology, p. 1.). It can also minimise the “criminogenic effects of formal justice system contact as a result of negative labelling and stigmatisation”. Diversion can also provide an opportunity to address underlying risk factors that may cause or contribute to offending behaviour in children and young people.

Focus on reducing the number of children and young people on remand

Several recent investigations and reports have made recommendations regarding reducing the number of children and young people on remand, including the Royal Commission into the Protection and Detention of Children in the Northern Territory 2017 (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017.). While children are generally on remand for relatively short periods of time, it is often still very disruptive and traumatic, as well as being of little rehabilitative value. Being placed on remand will often interrupt a young person's schooling, employment, residential, and other circumstances. Often children on remand are not able to participate in educational, vocational, or rehabilitative programs available to other detainees.

As noted in the Victorian Youth Justice Review and Strategy meeting needs and reducing offending in 2017, children and young people on remand are likely to be exposed to the detrimental effects of detention but are not there long enough to gain any substantial therapeutic or rehabilitative benefit (Armytage, P. & Ogloff, J., 2017, Youth justice review and strategy: Meeting needs and reducing offending, Melbourne.). 

Holistic, legislated bail support programs that provide intensive case management for children and young people at risk of being remanded in custody should be implemented, with supports including crisis and supported accommodation, disability and mental health services, and drug and alcohol treatment. Services and programs should be delivered in a culturally safe manner, and where possible First Nations children and young people should be supported by ACCOs.

Improve operations of youth detention

There have been a significant number of investigations into practises in specific detention centres. Key recommendations of these reports should be enacted including the following recommendations.Prevention of harmful isolation and restraint practices, including a prohibition of solitary confinement and the use of spit hoods the Royal Commission into the Protection and Detention of Children in the Northern Territory 2017.found that the use of isolation on detainees was potentially inconsistent with a number of human rights standards (Royal Commission into the Protection and Detention of Children in the Northern Territory, 2017). The National Children's Commissioner has recently recommended that Australian Governments legislate to prohibit solitary confinement practices in child detention facilities and prohibit the use of isolation as punishment in any circumstance (National Children’s Commissioner, 2024, ’Help way earlier!’ How Australia can transform child justice to improve safety and wellbeing, Australian Human Rights Commission, Sydney.). 

The use of spit hoods creates a significant risk of injury or death to the wearer, with spit hoods implicated in numerous deaths in custody. A review of the use of spit hoods by the Australian Federal Police found the risk of using spit hoods outweighed the benefits of their use, given they are ineffective in protecting against transmissible diseases (Australian Federal Police, 2023, Media Statement.).

The Australian Human Rights Commission has been campaigning for many years for the banning of spit hoods by all Australian authorities. Several jurisdictions have enacted or are intending to introduce legislative bans on the use of spit hoods on children and young people in detention. However, despite the recommendation of the NT Royal Commission that spit hoods should continue to be prohibited, the newly elected Northern Territory government plans to reintroduce their use for children in detention (Pillarisetty, A., 2024, Youth justice advocates condemn NT government proposal to reverse ban on using spit hoods on children, ABC news.). 

Adequately trained and supervised staff in detention centres, in particular to ensure care for First Nations’ children is culturally competent

Many recent reviews have emphasised the importance of having adequately trained and supervised staff in detention centres. Given the complex needs and often challenging behaviors of children and young people in detention, appropriate training of youth officers to respond appropriately to detainees and/or to any unexpected incidents is crucial. The lack of training can pose further risk to both staff and detainees (Clancey, G., Wang, S. and Lin, B., 2020, Youth justice in Australia: Themes from recent inquiries, Australian Institute of Criminology, Canberra, p. 12.).

Youth justice facilities must adopt a trauma-informed approach, ensuring that care is culturally competent, particularly for First Nations children and those with disability. Officers performing youth justice work should be trained in and specialise in providing support to young people, rather than being general custodial officers.

Improved access to rehabilitation program and resources, including mental health care, substance abuse treatment and education 

Detained children and young people must have access to comprehensive rehabilitation services, including mental health care, substance abuse treatment, and education programs. Many of the recent reviews, inquiries and reports highlight the lack of appropriate programs and services for children young people in detention and the subsequent implications for rehabilitation and reducing reoffending. This is particularly true for First Nations children and young people, given the importance of cultural support and cultural connection in addressing the overrepresentation of 
Aboriginal children and young people in detention.

In 2017 the Victorian Youth Justice Review and Strategy meeting needs and reducing offending noted that the provision of consistent education in youth justice detention is critical for the purposes of rehabilitating children and young people and reducing their risk of reoffending (Armytage, P. & Ogloff, J., 2017, Youth justice review and strategy: Meeting needs and reducing offending, Melbourne.). Access to education while in detention can improve the outcomes for children and young people in the longer term because increased literacy and numeracy levels can improve employment opportunities.

Attachment A

Recent work relevant to the inquiry

Australia

• National Children’s Commissioner ‘Help way earlier!’ How Australia can transform child justice to improve safety and wellbeing, Australian Human Rights Commission 2024
• Independent Review of the National Legal Assistance Partnership 2020-25, Dr Warren Mundy (2024)
• Age of Criminal Responsibility Working Group Draft Report, Standing Council of Attorneys-General (2023)
• Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Volume 8, Criminal justice and people with disability (2023)
• Safe and Supported: the National Framework for Protecting Australia’s Children 2021 – 2031 (2021)
• National Agreement on Closing the Gap (2020) 

New South Wales

• Ministerial Review into the riot at Frank Baxter Detention Centre 21 and 22 July 2019 by former NSW Police Force Assistant Commissioner Lee Shearer APM (Shearer 2019)
• Inquiry into the adequacy of youth diversionary programs in New South Wales by Parliament of New South Wales, Legislative Assembly Committee on Law and Safety (LACLS) (2018)
• Use of force, separation, segregation and confinement in New South Wales youth justice centres by the New South Wales Inspector of Custodial Services (2018)
• Re-integrating young offenders into the community after detention by the New South Wales Auditor General (Audit Office of NSW 2016)

Queensland

• Cairns and Murgon watch-houses inspection report: Focus on detention of children, Inspector of 
  Detention Services (IDS 2024)
• Cleveland Youth Detention Centre inspection report: Focus on separation due to staff shortages, Inspector of Detention Services (IDS 2024)
• The Brisbane Youth Detention Centre report, Queensland Ombudsman (2019)
• Report on youth justice by former Queensland Police Service Commissioner Bob Atkinson AO, APM (Atkinson 2018)

Tasmania

Inquiry into Tasmanian Adult Imprisonment and Youth Detention Matters (currently underway)

Commission on Inquiry into Tasmanian Government’s responses to Child Sexual Abuse in Institutional Settings (2023)

Youth at risk strategy paper by the Tasmanian Government (2017)

Custodial youth justice options paper by Noetic Solutions (2016)

Victoria

• 2023-24 Youth Forum Report 1 (Commission for Children and Young People, 2024)
• Report into Victoria’s Child Protection and Criminal Justice Systems, Yoorrook Justice Commission (2023)
• Our Youth, Our Way. Inquiry into the over-representation of Aboriginal children and young people in the Victorian youth justice system (Commission for Children and Young People, 2021)
• Ngaga-Dji (Koorie Youth Council, 2018)
• Managing rehabilitation services in youth detention by the Victorian Auditor-General’s Office (VAGO) (2018)
• Inquiry into Youth Justice Centres in Victoria by Parliament of Victoria, Legislative Council Legal and Social Issues Committee (LSIC) (2018)
• Victoria youth justice review and strategy: Meeting needs and reducing offending. Report by former Secretary of the Department of Justice and Regulation Penny Armytage and Professor James Ogloff AM (see Armytage & Ogloff 2017a, 2017b, 2017c, 2017d)
• Review of the Parkville Youth Justice Precinct: An independent review by former Victoria Police Chief Commissioner Neil Comrie AO, APM (Comrie 2017)

Western Australia

• Hear Me Out Report – Inquiry Into Implementation Progress for Banksia Hill’s Model of Care 
  Instruction, Commissioner for Children and Young People (2024)
• Inspection of Banksia Hill Detention Centre by the Western Australia Office of the Inspector of Custodial Services (2018)
• Diverting young people away from court by the Office of the Auditor-General Western Australia (2017)

Northern Territory

• Royal Commission into the Protection and Detention of Children in the Northern Territory (RCPDCNT) (see RCPDCNT 2017a, 2017b, 2017c, 2017d)

Reports by civil society, non-government, oversight and other organisations

• ‘Help way earlier!’ – How Australia can transform child justice to improve safety and wellbeing, 
  Australian Human Rights Commission, National Children’s Commissioner (2024)
• What children and young people in juvenile justice centres have to say by the NSW Advocate for Children and Young People (2019)
• The sky is the limit: Keeping young children out of prison by raising the age of criminal responsibility by Amnesty International Australia (2018)
• The children’s report: Australia’s NGO coalition report to the United Nations Committee on the Rights of the Child by the Australian Child Rights Taskforce (2018)
• Free to be kids: National plan of action by the Change the Record Coalition (2017)
• Pathways to justice: An inquiry into the incarceration rates of Aboriginal and Torres Strait Islander Peoples by the Australian Law Reform Commission (2017)
• A statement on conditions and treatment in youth justice detention by the Australian Children’s Commissioners and Guardians (2017)
• Australian child rights progress report: A report on the 25 years of the UN Convention on the Rights of the Child in Australia by the Australian Child Rights Taskforce (2016)

Attachment B

A nationally consistent approach to reforming the youth justice system which is trauma-informed system and focused on the best interests of the child, rather than punitive approach.

Tasmanian case study - Youth Justice Act 1997

The Youth Justice Act 1997 is 25 years old and should be modernised to reflect current scientific understanding about child development. Its principles should articulate the desire to divert children away from formal court-based legal proceedings where possible, to minimise harm, to take a trauma-informed approach, and focus on rehabilitation. It should be evidence-based and help connect children and their families to support services that can help address the root causes of offending behavior. It would be an opportunity to provide for culturally appropriate and safe proceedings for aboriginal children. The most recent amendment to the Act occurred in 2022 to establish a framework in respect to how children and young people in custody are searched in prisons, detention centres and police watch-houses. Amendments prior to that date occurred in 2012.

Queensland case study - Youth Justice Act 1992

In QLD the youth justice system is governed by the Youth Justice Act 1992 (Qld) (the YJA). The YJA has been regularly amended and the Childrens’ Court has experienced significant change. Since 2009 the YJA has been amended 12 times. 

Several legislative amendments since 2019 have been effective in achieving their intended objective of increasing the number of children and young people remanded in custody and/or sentenced to terms of detention.

The debate around youth justice in Queensland has centred around the need to protect the community from young offenders and in particular “Serious Repeat Offenders”. Although significant investment has been injected into the Youth Justice system, the overall number of “Serious Repeat Offenders” has risen from 278 children to 457 (from 2018-2019 to 2022-2023).

The Queensland Audit Office Report 15: 2023-2024: Reducing serious youth crime found that of the files of 50 serious repeat offenders sampled by the report writers, there was no evidence that rehabilitation programs were delivered to 18% of those children (Queensland Audit Office Report 15: 2023-2024: Reducing serious youth crime, 2024.).

The delivery of rehabilitative programs and interventions within the detention centres is stymied by inadequate staffing levels and a loss of staff with experience in delivering those programs and interventions. More properly trained staff and a focus on the delivery of rehabilitation programs are required to slow the slide of youth justice in Queensland from a rehabilitative system to a carceral system. 

Improvements to early intervention and prevention approaches

NSW case study

Children who come into contact with child protection services are more likely to come into contact with the youth justice system (‘Dual system youth’). In NSW Aboriginal children are 12 times more likely than non-Aboriginal children to be in out-of-home care. A 2013 study of Legal Aid NSW’s 50 highest service users indicated that almost half had spent time in Out of Home Care (OOHC) and all of those clients had also used criminal law services. A 2018 study found that young people in OOHC are 68 times more likely to appear before the NSW Children’s Court than other children (McFarlane, K., 2010, From Care to Custody: Young Women in Out-of-Home Care in the Criminal Justice System, Current Issues in Criminal Justice, 22 (2), 345–353.) and the 2008 Report of the Special Commission of Inquiry into Child Protection Services in NSW found that approximately one third of young people in juvenile detention had a history of out-of-home care (Wood, J., 2008, Report of the Special Commission of Inquiry into Child Protection Services in NSW, Vol. 2.). 

NSW introduced the Joint Protocol to Reduce the Contact of Young People in Residential Care with the Criminal Justice System in 2016. It aims to reduce the criminalisation of children and young people who live in out of home care and Intensive Therapeutic Care. It emphasises the importance of flexibility and proportionality in determining the most appropriate response to a child’s behaviour.

Whilst significant progress has been made on the rolling out and implementation of the Joint Protocol, the extent to which it functions or influences practices in parts of the state remains unclear. It is understood that training and implementation remains limited in several locations across NSW. Further, it has been reported by Legal Aid NSW staff that it has not affected reporting and/or charging practices in several locations despite both OOHC providers and NSW Police being reminded of the existence of the Joint Protocol.

Closing the Gap 

NSW case study

Despite Closing the Gap targets, the NSW Bureau of Crime Statistics Research (BOCSAR) reported a 10.7% increase in Aboriginal young people in youth detention in NSW in June 2024 (NSW Bureau of Crime Statistics and Research, 2024, Target 11: Young people are not over-represented in the criminal justice system, [accessed 26/09/24].) compared to June 2019. In March 2024, over 66% of young people in detention were Aboriginal (NSW Bureau of Crime Statistics and Research, 2024, Aboriginal over-representation in the NSW Criminal Justice System 
quarterly update March, [accessed 26/09/24].) despite making up only 4.5% of the NSW population aged 10-17 (2016 Census of Population and Housing NSW, cited in Young People statistics in NSW, 2024, [accessed 26/09/24].). In addition, First Nations young people are often moved off-Country for detention as there are no facilities within their local area to accommodate them.

While the data set is currently small, the s22C bail amendments introduced in March 2024 have overwhelmingly and disproportionately affected First Nations young people. While there are limitations to understanding this data, 85% of the young people it has affected and 88% of those who were bail refused are Aboriginal young people. Section 22C does have a sunset clause in March 2025.

The NSW Youth Koori Court (YKC) was piloted in 2015 at Parramatta Children's Court and was subsequently expanded to Surry Hills and Dubbo Children's Courts in 2019 and 2023 respectively. The YKC engages culturally appropriate and relevant practices and services to provide a modified experience of the Children’s Court process for First Nations young people. The YKC was evaluated in 2018 (Crabtree, L., Meher, M., Tait, D., and Williams, M., 2017, Youth Koori Court Review of Parramatta Pilot Project, Western Sydney University, Sydney.) and 2022 (Inside Policy for the NSW Department of Communities and Justice, 2022, An evaluation of the Youth Koori Court Process.), through which it was consistently found that participation in the YKC did reduce the reincarceration of its participants. The evaluations also found the YKC improved young people’s understanding of the justice system and that it improved participants’ connections with culture. Expanding access to the YKC may assist in improving the attainment of Target 11.

Victorian case study

In Victoria, recent reforms to the Bail Act 1977 (Vic) were introduced aiming to reduce the overrepresentation of marginalised groups in the justice system, including First Nations children and children from culturally and linguistically diverse backgrounds. 

Since the commencement of the reforms in March 2024, Victoria Legal Aid (VLA) has actively monitored the effect of these reforms through their service data. Concerningly, VLA’s service data indicates that the benefits of recent bail reform have not been experienced by First Nations young people at the same rates as non-Indigenous young people. While there has been an overall reduction in the number of children appearing before the statewide Weekend Online Remand Court (WORC), VLA’s data and data from the Children’s Court of Victoria indicates that there is a higher proportion of First Nations children within the reduced WORC numbers.

Weekend Online Remand Court (WORC) Data (March to August 2024)

• The number of children appearing before WORC has reduced by 53 per cent overall.
• The number of girls appearing before WORC has reduced by 81 per cent.
• The number of First Nations young people appearing before WORC has only reduced by 12 per cent.

In relation to First Nations children, VLA’s data shows:

• The over-representation of First Nations children in the remand population has gotten worse
• Pre-reform about 19%, or almost 1 in 5, of the total number of children that VLA assisted in WORC were First Nations children. Since the reforms, about 33%, or around 1 in 3, of the total number of children that VLA assisted in WORC were First Nations.
• While it is positive that there has been a 47% reduction in the number of First Nations girls VLA is seeing in WORC, this figure is far lower than the reduction in remands for non-First Nations girls (47% compared with 81%).
• The only child under the age of 14 who VLA assisted since the reforms was a First Nations child.

Detention to be a measure of last resort

Increase systemic use of diversionary programs

NSW case study - The Young Offenders Act 1997 and the Mental Health and Cognitive Impairments Forensic Provisions Act 2020

The Young Offenders Act 1997 (the YOA) provides scope for diverting young people away from the youth justice system in NSW. It allows for three alternative ways for police to deal with young people: warnings; cautions; and Youth Justice Conferences (YJCs). Courts are also able to divert young people under the YOA by way of Cautions and YJCs.

Legal Aid NSW have previously submitted that the NSW Government should consider amending the Act to increase the number of cautions available for young people – currently there is a limit of three (3) cautions available under the YOA.

Further, Legal Aid NSW have submitted that the scope of offences eligible for diversion ought to be increased to include offences which are currently ineligible – for example, offences under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) are not eligible, which means offences of stalk/intimidation (s.13) and contravene AVO (s.14) under that Act are not able to be diverted and must therefore proceed to court. This can often lead to objectively low-level offending being ineligible for diversion in circumstances where such diversion would otherwise not be opposed by NSW Police and may be in the best interests of all relevant parties, including the complainant.

The Mental Health and Cognitive Impairments Forensic Provisions Act 2020 (NSW) provides further diversion options for summary matters before the court by way of conditional/unconditional discharge for defendants with mental health/cognitive impairments (s.14); detention in a mental health facility for assessment for mentally ill/disordered persons (s.19(a) or (b)); conditional/unconditional discharge for mentally ill/disordered persons (s.19(c)); or community Treatment Order for mentally ill/disordered persons (s.20).

While these diversions can be very helpful for young people with identified mental health/cognitive impairments, and particularly those with existing treatment providers, the rate of diversion is low at around 1.5% (Mental Health Commission of New South Wales, 2018, Submission to the Inquiry into the Adequacy of Youth Diversionary Programs in NSW.) for a range of reasons, particularly the lack of services needed in courts, particularly the case in regional and rural locations.

Focus on reducing the number of children and young people on remand

NSW case study - The Bail Act 2013

The Bail Act 2013 (the Act) applies to any person accused of an offence, including children. When determining bail, the court must consider whether there is an “unacceptable risk” (s19). Unacceptable risk including the risk that accused person will commit a serious offence or endanger the safety of victims, individuals or the community if released. When determining bail for a child, one of the factors to be considered in determining risk is “any special vulnerability or needs the accused person has including because of youth…” (s17(k)). The Act does not require the judiciary to assess or have any regard to the wellbeing and safety of the child when access to bail is being determined.

This bail framework has led to 77% of the NSW youth justice population being held on remand (NSW Bureau of Crime Statistics and Research, 2024, Latest: NSW Custody Statistics.). This is despite a number of judgements highlighting that community safety is not the automatic outcome of incarceration and that incarceration may have the opposite impact in the long term if it increases the individuals risk of reoffending (R v Pullen [2018] NSWCCA 264 at 84 and Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3).

The Act was amendment to provide for the ability to compel government agencies to assist a young person with their accommodation, which appears to have contributed to a decrease in the number of young people being held on remand in NSW due to issues of homelessness or unstable accommodation. However, Legal Aid NSW staff have reported that this section is not always particularly effective (with some young people being held in custody for lengthy periods of time, sometimes in excess of a fortnight, whilst awaiting the making of appropriate accommodation arrangements).

Improve operations of youth justice detention

QLD case study

The difficulties facing Queensland’s Youth Detention Centres are longstanding, complex and the subject of extensive reporting. A recent report by the Queensland Inspector of Detention Services into the Cairns and Murgon watch‑houses notes that the Department of Youth Justice still relies upon the Queensland Police Service to provide detention beds for children in watch houses around Queensland if they are remanded or sentenced to detention (The Inspector of Detention Services, 2024, Cairns and Murgon watch‑houses inspection report: Focus on detention of children, Brisbane.).  The detention centres are currently full although LAQ acknowledges that a new police remand centre in the Western suburbs of Brisbane will come online in late 2024 or early 2025. The facilities in the watchhouses are not designed to keep children safe and protected and their continued use is disappointing.

The report on the Cleveland Youth Detention Centre accurately identifies the challenges that LAQ’s clients experience once they are remanded or sentenced to detention (The Inspector of Detention Services, 2024, Cleveland Youth Detention Centre inspection report: Focus on separation due to staff shortages, Brisbane.). The issue of separation is an ongoing one with a lack of available staff meaning that children are isolated in their cells instead of being able to participate in schooling, rehabilitative programs and interventions and pro-social activities.

NSW case study

Legal Aid NSW acknowledges NSW has come a significant way in improving conditions for young people in custody generally and there have been a number of improvements and positive changes since 2019. These improvements followed the Inspector of Custodial Service’s report into the Use of Force, Separation, Segregation and Confinement in NSW Juvenile Justice Centres (November 2018) and the Ministerial Review into the Riot at Frank Baxter Detention Centre (August 2019). These reports and other incidents highlighted practices in NSW Juvenile Justice Centres which were of substantial concern. Many of these practices of concern have been abolished, though some remain.

Of particular concern is that young people in custody are still being placed in solitary confinement, in circumstances where staff deem it necessary for their own or others’ protection. Research demonstrates that solitary confinement has a significant negative impact on the wellbeing of young people. In particular we have observed declining mental 
health and increased self-harm for young people who are regularly subject to confinement. 

Victoria case study

VLA notes that solitary confinement is routinely used in Victorian youth prisons under a variety of different labels including ‘isolation, separation, seclusion, segregation and lockdowns’. This is consistent with evidence received by the Yoorrook Justice Commission in their hearings on criminal justice.

VLA notes that they often see children being placed in solitary confinement or ‘lockdown’ in circumstances where there are staff shortages, including up to 23 hours a day. These practices have been justified as measures of ‘last resort’ or being in the interests of the security of the prison.