Aboriginal and Torres Strait Islander Justice Policy Asks

A More Compassionate Approach to Youth Justice

We seek a nation where all children can flourish free from harm and fear, surrounded by communities that nurture healing and growth - where the youth justice system champions dignity, culture, and hope for Aboriginal and Torres Strait Islander young people.

The youth justice system in Australia is at a critical juncture; a moment that calls us to uphold the dignity and worth of every child as beloved by God. Structural inequities within the youth justice system continue to disproportionately harm Aboriginal and Torres Strait Islander children, with incarceration rates remaining unacceptably high (even worsening, in some States and Territories).

Australian governments, through the ‘Closing the Gap’ partnership have committed to reducing the disparities between Aboriginal and Torres Strait Islander people and non-inidigenous Australians. The 2025 Closing the Gap report revealed that Australia is failing to meet its targets for reducing the over-representation of Aboriginal and Torres Strait Islander young people in the youth justice system. Latest data from the Australian Institute of Health and Welfare show us that on an average day in 2023/24, Aboriginal and Torres Strait Islander young people (age 10-17) were about

19 times as likely as non-indigenous Australians to be under supervision
19 times as likely as non-indigenous Australians to be under community-based supervision, and
27 times as likely as non indigenous young people to be in detention

These statistics are so harrowing. The trauma that is being caused by disconnecting these children from their communities, their culture, and from Country cannot be overstated.

And these statistics cannot be seen in isolation; they intersect deeply with other Closing the Gap targets that are also off track. The over-representation of Aboriginal and Torres Strait Islander children in out-of-home care increases their risk of later justice involvement, while gaps in access to quality early childhood education and health services limit opportunities for healing and thriving from the start. Educational disengagement, often linked to intergenerational trauma, poverty, and systemic racism, further compounds vulnerability. Together, these failures reveal a cycle of structural disadvantage that begins long before a child enters the justice system, underscoring the urgent need for holistic reform that addresses the interconnected drivers of inequality, not just its symptoms.

“The over-incarceration of First Nations children is not just a crisis—it is a haunting reminder of a nation that has failed to reckon with its own deep-seated injustices. How is it that in a country as prosperous and developed as Australia, the children of its First Peoples are locked away at rates that defy morality and reason? These are not mere statistics. Every incarcerated child represents a life interrupted, a family torn apart, and a culture further eroded by systems designed to control rather than care.” - Ayla Williams (Ayla is a Palawa woman from lutruwita/Tasmania and a member of the Common Grace movement).

Recent changes in laws and policies across the nation have worsened these inequities, bringing harsher penalties, lowered ages of criminal responsibility, and unsafe detention conditions.

Some examples of these changes:

NSW: Recent changes to bail laws have made it more difficult for young people - particularly repeat offenders - to be granted bail. These stricter laws have disproportionately affected Aboriginal children, leading to an increase in their detention, often for offences that previously may not have resulted in custody. This has significantly contributed to the growing overrepresentation of Indigenous youth in NSW detention centres.
NT: The decision to lower the minimum age of criminal responsibility from 12 to 10 years has sparked serious concerns from legal experts and human rights organisations about the likelihood of more young children being imprisoned. The recent reintroduction of spit hoods has further intensified worries about the safety and dignity of detained youth
QLD: Bail reforms allowing children to be held in adult watch houses have raised alarming human rights concerns regarding the treatment and wellbeing of vulnerable young people.
VIC: The Victorian Government has introduced in the ‘toughest bail laws’ in the country which, among other things, scrap the principle of remand as a ‘last resort’ for young offenders. The Victorian Government has also reneged on its commitment to raise the age to 14.

Impacts of youth incarceration

Poor Mental Health Outcomes:

Incarcerating children during the crucial years of 10-17 affects their development. It increases their risk of depression, suicide and self-harm, leads to poor emotional wellbeing, and contributes to worse mental health in adulthood.
Many of the young people entering youth detention in Australia are doing so with pre-existing mental health issues or neurocognitive impairments. The experiences of isolation, boredom and victimisation have been shown to exacerbate these conditions.

“I've seen a lot of deaths in custody and most of them could have been prevented, I believe, by proper procedures put in place that would've made that child grow up feeling ‘I am who I am, I have a family and they are important to me.” - Rev Canon Auntie Di Langham (Auntie Di is a proud Boandik woman and an Anglican Reverend on Awabakal country. Auntie Di has worked as a prison chaplain in Corrective Services NSW for more than 20 years, including nearly a decade spent working in children’s prisons.)

Disconnection from Community:

Removing a child from their family, carer, kin or community causes trauma. For First Nations children, this trauma is exacerbated by the fact that they are also being disconnected from their culture and Country.
Connection to their community and culture is critical for children to foster their health and social wellbeing and to develop a sense of identity. In this way, culture can often be a protective factor for First Nations children who may be vulnerable to entering the criminal justice system. Research suggests that services that are culturally appropriate and safe, and that respect the self-determination of First Nations Peoples are the most effective at reducing offending.

“[when an Aboriginal child is cut off from community] we end up with major mental health problems. You do, because the child frets. They fret for their parents, fret for their siblings, fret for being kept away, especially at 10 years of age…When they fret damage is done and it usually doesn't get undone. We end up with youth suicide at 16 and 17 years of age because they have a whole mental health issue that has happened to them. They've already been traumatised just by being Aboriginal in the community, let alone getting to a jail and then being traumatised there. That's layers of trauma.” – Rev Canon Auntie Di Langham

“As an Aboriginal Forensic Mental Health Clinician I have seen first hand the devastating impacts of incarceration - not only in the lives of the people incarcerated but in the collective negative social, emotional, health and wellbeing of our communities. When we place our children in justice settings, we strip them of their hope and disconnect them from the resemblance of a different future than what they have seen around them.” - Cameron Balcombe (Cameron is a proud Olkola and Djabuguy Catholic man, he works as a Mental Health clinician in the forensic mental health system and is studying a Masters of Social Work at RMIT University. He is a member of the Common Grace Movement).

Incarceration fosters Recidivism:

Contrary to popular political and media narratives, the incarceration of children does not lead to heightened community safety. Instead, evidence overwhelmingly demonstrates that incarceration is criminogenic, and that the earlier you incarcerate a child, the more likely they are to re-enter the justice system in the future; Around 85% of children sentenced to detention return to custody within 12 months
The Victorian Sentencing Advisory Council have found that ‘the younger children were at their first sentence, the more likely they were to reoffend generally, reoffend violently, continue offending into the adult criminal jurisdiction, and be sentenced to an adult sentence of imprisonment before their 22nd birthday.

“I found in jail that most of the young people that came through to the big house had done time in juvie. So, from 10 years of age, they had started their incarceration and had continued on until they'd become virtually institutionalised. I had one guy that was 57, he’d been in since he was five in the boys home…From there that was the beginning of his life of crime and he continued on because some of them get so used to the whole system that it becomes the norm. It’s very difficult and very difficult to change that mindset as well.” – Rev Canon Auntie Di Langham

“If community safety is our priority, let’s make sure that the safety of our precious children is part of that. When the most vulnerable members of our society are cared for, then the rest of our community will benefit.” - Bianca Manning (Bianca is a Gomeroi woman, social worker and Common Grace’s Aboriginal and Torres Strait Islander Justice Coordinator currently on sabbatical).

Incarceration is expensive:

- Children should not be in detention, and our willingness to pour money to hold them in detention speaks to how distorted our priorities have become.
- Recent data from the Productivity Commission has found that it costs over $2,827 to house one child in detention per day, or $1.03 million per year. Governments across Australia spent nearly $855 million on youth incarceration in 2022/2023.
- These resources should be redirected. Australia must adopt a more compassionate, evidence-based approach to child justice – that aims to protect and support First Nations children and respect their cultural identity and protocols, rather than criminalise them.

Calls for Change

In recent years, momentum to reform Australia’s youth justice system has accelerated, driven by a combination of public outcry, official investigations and international pressure.

Several key developments have fuelled this shift:

Deaths of children in custody: Tragic cases of young people dying in detention have sparked national concern, particularly regarding the treatment of indigenous children and the conditions in youth detention centres. You can read more here and here.
Senate Inquiry (2024): The Legal and Constitutional Affairs References Committee launched a comprehensive inquiry into youth justice and incarceration, investigating systemic failures and recommending urgent reforms. You can find Common Grace’s submission to this inquiry here.
Calls to raise the age of criminal responsibility
- Australia currently sets the minimum age of criminal responsibility at 10 years old, well below international standards.
- The UN Committee on the Rights of the Child has repeatedly urged Australia to raise the age to at least 14, in line with global human rights expectations.
- The Australian Human Rights Commission’s Help Way Earlier! Report, along with support from medical and legal experts, has highlighted how early criminalisation causes long-term harm and disproportionately impacts First Nations children.

Jurisdictional Responses

The ACT became the first to raise the minimum age of criminal responsibility to 14 on 1 July 2025.
VIC announced similar reforms, initially committing to 14 but later scaling it back to 12. This will be reviewed in 2027.
TAS has announced that it will raise the minimum age of criminal responsibility from 10-14 and will increase the minimum age of detention to 16 years. Implementation of these policies is expected to be completed by July 2029.
The NT raised the minimum age of criminal responsibility to 12 in 2023. However, with the change in Government last year, that decision was reversed and is now back at 10 years.
NSW has not declared any intention of raising the minimum age of criminal responsibility beyond 10 years old
WA has not declared any intention of raising the minimum age of criminal responsibility beyond 10 years old.
SA is consulting on whether to raise the age to 12 but has not formalised anything.
QLD introduced their Adult Crime, Adult Time laws at the end of 2024 - this legislation kept the minimum age of criminal responsibility at 10, and even allowed some serious offences by children to be dealt with in the adult justice system.
Federal position: the national minimum age of criminal responsibility is 10, and have argued the burdern of this issue lies with the States.

Doli Incapax - A presumption of innocence for 10-13 year olds.

Throughout Australia the low age of criminal responsibility is balanced by the principle of doli incapax, which requires prosecutors to prove a child aged 10 to 13 understood their actions were seriously wrong. Doli incapax translates to, ‘incapable of wrong’ and assumes that children do not have the capacity to commit a crime due to a lack of understanding of right and wrong. The principle is reflected in legislation in some jurisdictions and recognised in common law across all States and Territories. A range of studies suggest that while it does constrain the amount of convictions of younger children it is not a reliable legal safeguard for young children, particularly Aboriginal and Torres Strait Islander children. Children are still charged and held on remand, with capacity being assumed rather than properly investigated. Many children are also encouraged to plead guilty, rather than testing the presumption. First Nations children are less likely to be protected by it, despite higher likelihoods of trauma, developmental disability and disrupted education. Some of this is due to presumptions that they are more streetwise than their non-indigenous peers.

Commonwealth Government’s Responsibility to Act

It is becoming increasingly clear that piecemeal state and territory responses are not sufficient to address the deep and systemic challenges faced by Aboriginal and Torres Strait Islander young people. This patchwork approach has drawn criticism from legal experts, human rights bodies, and the United Nations, all of whom argue that the protection of children's rights should not depend on where they live.

"A child in Canberra now gets health and family support. A child an hour away in NSW can still be taken to a police cell. We need a single national rule so every child, no matter where they live, has the same chance." - Dr Faith Gordon (an Australian National University youth justice researcher).

The Senate Inquiry into youth justice further highlighted the Commonwealth’s responsibility to show national leadership and ensure Australia meets its international obligations. As calls for reform grow louder, from First Nations communities, health professionals, and child advocates, the federal government is under increasing pressure to step in and set a national standard, rather than leaving critical decisions about children’s welfare to a fragmented state-by-state approach.

What We Are Asking

In this urgent moment, we call on our leaders to act with compassion and courage and to commit to restoring hope, protecting the vulnerable, and building a justice system that truly heals and restores.

At our Let Justice Flow Conference in 2025, we will be asking our Nation’s leaders to:

1. Lead a National Reform of the Youth Justice System

The Federal Government should use its leadership role - including funding agreements, external affairs powers, and coordination through the Standing Council of Attorneys-General - to drive urgent reform. This includes reviewing laws and practices that contribute to the overrepresentation of Aboriginal and Torres Strait Islander children in detention, including the Minimum age of Criminal Responsibility, and using funding levers to ensure compliance with human rights obligations.

Funding Agreements

To drive meaningful reform and reduce youth incarceration rates, particularly the overrepresentation of Aboriginal and Torres Strait Islander children, the Australian Government should condition youth justice funding on the delivery of clear, measurable outcomes. We join calls for the following actions:

Link funding to key reform targets: Increase funding to states and territories that raise the minimum age of criminal responsibility and successfully reduce Indigenous youth overrepresentation in the justice system.
Implement financial consequences: Apply funding penalties or reductions for jurisdictions maintaining punitive policies, such as low minimum age of criminal responsibility, harsh bail conditions, or other practices contributing to high incarceration rates.
Promote evidence-based youth justice: Use funding incentives to encourage the adoption of rights-based, evidence-informed youth justice policies that improve outcomes and reduce incarceration, especially among First Nations children and young people.

This approach will provide a strong mechanism for leadership and accountability, ensuring that Commonwealth funding actively supports justice reforms that protect the rights and wellbeing of all young people in Australia.

In October 2025, the Minister for Indigenous Australians, Malandirri McCarthy, expressed her support for financial penalties for States and Territories failing to meet their closing the gap targets. This would include Outcome 11 - that Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system, and its target of reducing the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by at least 30 per cent by 2031.

Using External Affairs Power

Expert legal advice has now determined that the Commonwealth has the power to set 14 as the minimum age of criminal responsibility nationwide. The Constitution’s “external affairs” power allows Canberra to enforce minimum standards in line with its international treaty obligations.

What is the external affairs power?

The external affairs power, s 51 (xxix) of the constitution, allows the Australian government to make laws to ensure the country is meeting its global obligations (incl. Australia’s international obligations under the Convention on the Rights of the Child to make sure that children are protected from harms that are caused if they are unnecessarily locked up, if they are mistreated, in detention centres etc)
Human rights experts have previously found Australia’s youth crime measures to be incompatible with basic human rights and violating the rights of Aboriginal and Torres Strait Islander children
The Federal Government could use this power to override legislation that violates international treaties

Coordination through Standing Council of Attorneys-General

The Australian Government should continue to take a leadership role in youth justice reform by actively engaging with the Standing Council of Attorneys-General (SCAG). By collaborating closely with this key intergovernmental body, the Commonwealth can help coordinate consistent policies, share best practices, and promote unified national standards across states and territories.

2. Legislate Enforceable Minimum National Standards for Youth Detention

The Australian Government should introduce binding national standards that guarantee the safety, wellbeing, education, and rehabilitation of children in detention, in line with the UN Convention on the Rights of the Child and the Optional Protocol to the Convention against Torture (OPCAT). These must be monitored and enforced with independent oversight.

Approaches to youth justice vary across the different states and territories.

In an attempt to bring a sense of uniformity, the Australian Youth Justice Administrators (AYJA) have developed national standards for youth justice. While these are sound, they are currently non-enforceable, non-binding, ‘aspirational’ standards. The extent to which states and territories have implemented these standards is unknown, and given the crisis-state of the youth justice system across the country, it is clear that they are not enough to protect the human rights of children.

Australia needs enforceable national minimum standards for youth justice to ensure consistency, accountability, and best practice across all states and territories. A unified framework would provide clear, transparent, and consistent guidance for the operation, oversight, and management of youth justice facilities nationwide. By aligning all jurisdictions to common expectations, these standards would support more coherent policy development and practice on the ground.

Common Grace supports sector-wide calls for the Commonwealth to lead the development of enforceable national standards for youth justice, consistent with our international human rights obligations. These standards should be legally binding, developed in consultation with First Nations community-controlled organisations, and be created alongside a mechanism for comprehensive independent monitoring to allow for adequate transparency and accountability.

National standards would:

Promote and protect the rights of children, ensuring they are treated with dignity and respect
Shift from a punitive approach to a rehabilitative one
Strengthen oversight by giving state-level monitoring bodies a shared foundation for evaluations, reporting, and follow-up actions. This would enable findings and recommendations to be more easily compared, applied, and translated across jurisdictions, improving overall system accountability and reform efforts.
Encourage greater use of diversion, ensuring incarceration is seen and used as a last resort
Align Australia’s youth justice system with international human rights standards and international best practice.

The AYJA’s standards could be used as a starting point for developing these standards.

3. Prioritise and Expand Funding for Aboriginal Community-Controlled Organisations (ACCOs)

The Australian Government should redirect and increase investment into ACCOs delivering culturally-grounded prevention, diversion, and rehabilitation programs for young people. Evidence shows that when governments partner genuinely with Aboriginal and Torres Strait Islander communities, outcomes improve, and cycles of incarceration can be broken.

There are a number of factors that contribute to the over-representation of First Nations children in the youth justice system. They include entrenched poverty and inequities in access to health services, infrastructure and education, inadequate housing, and intergenerational trauma and incarceration.
There is also a strong connection between out-of-home care and the increased likelihood of a child coming into contact with the justice system. Aboriginal and Torres Strait Islander children are 10.9 times more likely to be in out of home care than non-Indigenous Australian children.
The legacies of the Stolen Generation on Australia’s welfare system continue to disadvantage First Nations children.
If we are to address the overrepresentation of First Nations children in our criminal justice system, then we must understand and treat this overrepresentation holistically.

Importance of Aboriginal Community Controlled Organisations

Connection to family, community and culture are robust protective factors for Aboriginal and Torres Strait Islander children.

For many, culture is critical to development, identity and self-esteem and strengthens their wellbeing and capacity to manage intergenerational trauma. Nurturing a child’s culture and connections to family and community supports their social and emotional wellbeing, which is an integral protective factor in preventing children from entering the justice system.

This is why ACCOs are so critical; for decades, ACCOs have been delivering holistic, integrated and culturally safe intervention and prevention services that have been proven to improve children’s wellbeing and developmental trajectory. ACCOs provide opportunities for growth and healing, and are an evidence-based alternative to punitive measures that are often more effective and sustainable than incarceration.

Because of their connection to communities and deep understanding of cultural practice and relationships, alongside years of trust they have built with families, ACCOs are best placed to continue preventative supports once such risk factors have begun to impact on children and affect their behaviour.

Despite their proven effectiveness, Aboriginal Community Controlled Organisations (ACCOs) continue to receive significantly less funding than non-Indigenous organisations for delivering key services. This funding gap is partly driven by rigid grant structures that fail to account for local contexts and community needs. In the child protection sector - which closely intersects with youth justice - the 2024 Family Matters report by SNAICC revealed that ACCOs receive just 6% of government funding, even though Aboriginal and Torres Strait Islander children represent 41% of those in out-of-home care.

Investing in community-led approaches is a critical way that Australia can create safe, flourishing communities.

“My work with Aboriginal families in my community of Logan QLD has helped me understand the need for holistic support for Aboriginal families and communities and the urgent need for long-term funding for Aboriginal community-controlled organisations who know their communities best, have the answers and should be resourced to lead the way.” - Bianca Manning

Examples of early Intervention and Prevention work by ACCOs

Deadly Connections (Marrickville, NSW):
This program supports Aboriginal youth aged 7-18 who are justice-involved or at risk, using culturally-informed early intervention, prevention, and diversion strategies. It adopts a holistic, family-centered approach to improve mental health, reduce risky behaviors, and strengthen cultural connections. Between 2019-2023, the program saw a 42% improvement in health and wellbeing and a 40% increase in cultural connection, with those engaged longer reporting better outcomes.

Olabud Doogethu (WA):

Western Australia’s first justice reinvestment site, Olabud Doogethu is a community-led, Aboriginal-driven project in Halls Creek Shire. It builds community cohesion and leadership to reduce youth crime and justice involvement. Between 2017-2020, the project achieved significant reductions, including a 63% drop in burglaries, 69% fewer arrests, and a 64% decrease in Aboriginal youth admitted to police custody.

Maranguka Justice Reinvestment Project (Bourke, NSW):
The first Aboriginal-led, place-based justice reinvestment model in Australia, Maranguka focuses on a life-course approach addressing systemic issues leading to justice involvement from childhood to adulthood. It partners with local services to implement initiatives tackling bail breaches, warrants, and driving programs. An independent review in 2016-17 found a 38% reduction in juvenile charges, improved school retention, and $3.1 million in estimated savings.