Across Australia, a quiet crisis has been unfolding inside detention facilities where, on any given day, nearly two in three children behind bars are Indigenous — a disparity more than twenty-five times the rate of their non-Indigenous peers. A parliamentary inquiry has brought this reality into sharp relief, with legal experts arguing the federal government holds constitutional authority to raise the minimum age of criminal responsibility yet has chosen not to exercise it. The question before the nation is not merely one of law or jurisdiction, but of moral will: whether those with the power
PM urged to show leadership as Indigenous youth detention crisis deepens
Indigenous children as young as 10 are being detained in conditions described as regressive and dangerous, with the majority unsentenced and spending weeks to months in custody before trial.
Children as young as 10 are being thrown in detention.
Mark
Why does the federal government resist raising the age of criminal responsibility if it has the constitutional power to do so?
Mimi
The government's position is that states and territories own criminal justice policy. But that argument doesn't account for the fact that this is also a human rights issue—Australia has international obligations it's not meeting. The legal advice says the Commonwealth can act. The question is whether it will.
Mark
What happens to a 10-year-old in detention for months before trial?
Mimi
The evidence is clear: trauma, interrupted schooling, damaged social development. They're more likely to reoffend afterward, not less. So the system is supposed to protect the community, but it's actually making communities less safe. And most of these kids haven't even been convicted yet.
Mark
Is this a new problem or has it been getting worse?
Mimi
It's been persistent, but it's worsening. Governments have introduced stricter bail laws and tougher policies. The proportion of Indigenous children in detention is increasing. The Royal Commission into Aboriginal Deaths in Custody already said imprisonment should be a last resort. We're moving in the opposite direction.
Mark
What would raising the age to 14 actually change?
Mimi
It would mean fewer children in the system entirely. The ACT and Victoria have done it. You see different outcomes—fewer kids detained, more diverted to support services. It's not radical; it's what evidence supports and what other democracies do.
Mark
Why is the Indigenous over-representation so extreme—25 times higher?
Mimi
It's systemic. Poverty, over-policing, less access to legal support, bail conditions that are harder to meet. Once you're in the system, you're more likely to stay in it. The detention itself becomes another barrier to getting out.
The Pulse
- Indigenous children as young as 10 are being detained at rates that expose a systemic failure — 62% of all detained youth in 2025 were Indigenous, despite representing a small fraction of the population.
- Most of these children have not been convicted of anything, yet they wait an average of 57 days in custody — up to 96 days in Queensland — only to receive non-custodial sentences upon trial.
- Advocates and legal experts are pressing the Prime Minister directly, citing constitutional authority under section 51(xxix) that would allow the Commonwealth to mandate a minimum detention age of 14 nationwide.
- The federal government continues to deflect, insisting criminal justice is a state matter — a position international bodies and domestic advocates alike have called a failure of leadership and a breach of human rights obligations.
- The conditions children face inside — spit hoods, adult watch-houses, psychological trauma — are producing the very outcomes the system claims to prevent, with detained youth more likely to reoffend and less likely to finish school.
Across Australia, a quiet crisis has been unfolding inside detention facilities where, on any given day, nearly two in three children behind bars are Indigenous — a disparity more than twenty-five times the rate of their non-Indigenous peers. A parliamentary inquiry has brought this reality into sharp relief, with legal experts arguing the federal government holds constitutional authority to raise the minimum age of criminal responsibility yet has chosen not to exercise it. The question before the nation is not merely one of law or jurisdiction, but of moral will: whether those with the power to interrupt a cycle of documented harm will act before another generation is shaped by it.
On any given day last year, 730 children were held in detention facilities across Australia. Nearly 62 percent of them were Indigenous — a disparity that sees Indigenous children incarcerated at more than 25 times the rate of non-Indigenous peers. That figure landed with force before a Senate inquiry into youth justice this week, where advocates challenged the federal government to confront not just the statistics, but its own constitutional authority to change them.
Legal advice obtained last year from barristers Kate Eastman and Emma Dunlop concluded that the Commonwealth could act under section 51(xxix) of the Constitution to establish a national minimum age of criminal responsibility. Currently, only the ACT and Victoria have raised that floor above 10. Everywhere else, children as young as 10 can be prosecuted and detained. Nick Epsie of the National Aboriginal and Torres Strait Islander Legal Services told the inquiry plainly: the Prime Minister has the power to intervene and has chosen not to.
The federal government maintains that criminal justice is a state and territory matter. Attorney-General Clare Rowland reiterated this position in internal documents obtained in June. When nations including Germany, Norway, and France urged Australia to raise the age during the UN Human Rights Council's Universal Periodic Review, the Commonwealth rejected the calls. Change the Record CEO Jade Lane described the response as a promise of transformation without the courage to follow through.
Beneath the policy debate lies a human toll that advocates say is being systematically ignored. Jonathon Hunyor of the Justice and Equity Centre outlined the documented consequences of early detention: trauma, disrupted development, reduced educational and employment prospects, and a paradoxical increase in future criminal behaviour. Conditions inside facilities have worsened — spit hoods reintroduced, children held in adult watch-houses — while a Productivity Commission report found that more than 70 percent of incarcerated Indigenous children were unsentenced, awaiting trial for an average of 57 days nationally, and up to 96 days in Queensland. Many, lawyers report, are ultimately released without custodial sentences.
NATSILS has called for an emergency youth justice summit. The Royal Commission into Aboriginal Deaths in Custody long ago recommended incarceration be used only as a last resort. Yet successive governments have tightened bail laws and driven rates upward. The inquiry has clarified the legal path forward. What remains uncertain is whether the political will exists to walk it.
On any given day last year, 730 children sat in detention facilities across Australia. Nearly 62 percent of them identified as Indigenous. The disparity is stark and persistent: Indigenous children are locked up at rates more than 25 times higher than their non-Indigenous peers, a fact that landed hard during a parliamentary inquiry into youth justice this week.
The numbers alone tell part of the story. But the fuller picture—the one advocates are now pushing the Prime Minister to confront—involves constitutional power, political will, and the question of whether the federal government has been shirking a responsibility it actually possesses. Legal experts argue it does. In advice obtained last year, barristers Kate Eastman and Emma Dunlop concluded that the Commonwealth could intervene under section 51(xxix) of the Constitution to establish a minimum age of criminal responsibility. Currently, only two jurisdictions have set that floor above 10: the Australian Capital Territory at 14, and Victoria at 12. Everywhere else, children as young as 10 can be prosecuted and detained.
Nick Epsie, general manager of the National Aboriginal and Torres Strait Islander Legal Services, appeared before the Senate inquiry on Tuesday with a direct challenge. The federal government, he said, has the legal authority to step in and has chosen not to. "Across states and territories, laws are cropping up that are making communities less safe," Epsie told the inquiry. "Premiers and Chief Ministers know this but lock up children anyway." He pressed further: the Prime Minister has the power to act, but so far, meaningful action has not materialized.
The federal government has resisted these calls, arguing that criminal justice is fundamentally a state and territory matter. In internal documents obtained by the National Indigenous Times in June, Attorney-General Clare Rowland told the then-chair of NATSILS that "state and territory governments have primary responsibility for criminal justice policy and legislation." When countries including Germany, Norway, and France urged Australia to raise the age of criminal responsibility during the UN Human Rights Council's Universal Periodic Review in June, the Commonwealth rejected the calls. Jade Lane, CEO of Change the Record, called the government's response "appalling"—a promise of transformation without the courage to deliver it.
What happens to children once they enter the system is the human weight beneath these statistics. Jonathon Hunyor, chief executive of the Justice and Equity Centre, described the documented consequences: trauma, psychological damage, disrupted social development, reduced likelihood of finishing school, diminished employment prospects, and paradoxically, increased likelihood of future criminal behavior. The very system meant to protect public safety appears to be manufacturing the opposite.
Conditions inside detention facilities compound the harm. Epsie described the environment as "regressive and deeply dangerous." Spit hoods have been reintroduced. Children spend days in adult watch-houses. Most troubling: the majority of detained Indigenous children are unsentenced—they have not been convicted of anything. A Productivity Commission report released last month found that more than 70 percent of incarcerated Aboriginal and Torres Strait Islander children across every state and territory were awaiting trial. Nationally, the average wait was 57 days. In Queensland, which detains more Indigenous children than any other state, that figure climbed to 96.3 days. In Victoria, it exceeded 80 days. In many cases, lawyers report, children ultimately receive non-custodial sentences—meaning they spent weeks or months locked up before being released without serving time.
NATSILS has called for an emergency summit on youth justice, framing the situation as a crisis. The Royal Commission into Aboriginal Deaths in Custody recommended that imprisonment be used only as a last resort. Yet both Labor and Coalition governments have continued to tighten bail laws and introduce policies that have pushed incarceration rates upward. The question now is whether the Prime Minister will exercise the constitutional authority legal experts say he possesses, or whether the current trajectory will continue.
Notable Quotes
The Prime Minister has the legal authority to step up and show leadership, but any meaningful action remains to be seen.— Nick Epsie, National Aboriginal and Torres Strait Islander Legal Services
We know this damages children. It causes trauma in their psychological and social development. It makes them less likely to finish school, less likely to find a job, and more likely to commit crime.— Jonathon Hunyor, Justice and Equity Centre
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