Case Explained:This article breaks down the legal background, charges, and implications of Case Explained: Human Rights Act a must as UN slams Australia’s age… – Legal Perspective
Australia’s human rights framework — which allows children as young as 10 to be incarcerated in most jurisdictions — has been sharply criticised by the international community, with critics arguing the country cannot present itself as a model democracy while continuing to violate children’s rights.
In its five-yearly Universal Periodic Review (UPR) of Australia’s human rights record, the United Nations Human Rights Council raised concerns about the “almost constant increase” in the number of people held on remand and Australia’s “very low age of criminal responsibility”.
More than 120 countries made almost 350 recommendations to Australia, including repeated calls for the adoption of a national Human Rights Act.
Caitlin Reiger, CEO of the Human Rights Law Centre, said the review showed the international community expected Australia to do more.
“No country is above the law and Australia’s duties under international human rights law are clear,” she said.
“The Albanese Government must legislate an Australian Human Rights Act. It is the fundamental missing piece in Australia’s human laws and will ensure everyone is treated with dignity, equality and respect.”
Worldwide condemnation
More than 40 countries, including Germany, Norway and France, urged Australia to raise the age of criminal responsibility to at least 14. Many noted Aboriginal and Torres Strait Islander people remain vastly overrepresented in the criminal justice system.
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 co
The calls to raise the age are longstanding, with human rights, Indigenous and legal organisations advocating for reform for decades. Medical professionals have also been near-unanimous in condemning the detention of children as young as 10, many of whom are held in prisons and watch houses, sometimes alongside adults.
Currently, only the ACT, where the minimum age is 14, and Victoria, where it is 12, have raised the threshold above 10. In some jurisdictions, more than 80 per cent of children in detention are on remand, yet are still housed with convicted detainees.
In Western Australia, of the roughly 70 children in detention, an estimated 60 to 70 per cent are First Nations. In the Northern Territory, the figure is effectively 100 per cent.
Change the Record chief executive Jade Lane said Australia could not ignore international condemnation of its treatment of children.
“Our kids are having their fundamental rights violated daily, arbitrarily detained, exposed to torture and inhumane conditions as young as 10 years old,” Ms Lane said. “Kids belong in their communities — thriving, not in cages, and the international community agrees.”
Youth detention failures widespread
The UN review was particularly critical of Australia’s youth detention system. The Committee against Torture found that children in detention had been “subjected to verbal abuse and racist remarks and restrained in ways that were potentially dangerous”, and that solitary confinement continues to be used.
The committee cited Banksia Hill in Western Australia, Don Dale in the Northern Territory, and Ashley Youth Detention Centre in Tasmania as especially serious examples.
Sam Klintworth, National Director of Amnesty International Australia, said this approach was inconsistent with international standards.
“Australian governments must raise the minimum age of criminal responsibility to at least 14 and fund Indigenous-led and community-based diversion programs to keep Indigenous kids in community, and away from prisons,” Ms Klintworth said.
In 2024, the Northern Territory Government ignored expert advice and lowered the age of criminal responsibility from 12 to 10 as part of its “tough on crime” agenda. A report that year by the NT Children’s Commissioner found 77 per cent of detainees aged 10 to 13 had mental health or cognitive disabilities, with nearly half experiencing multiple diagnoses.
In one case last year, a 13-year-old with diagnosed disabilities was detained for 24 hours after allegedly shoplifting confectionery. While in custody, the child was denied access to medication brought in by their foster carer and, despite repeated requests, was not allowed to speak with them.
In another case, an Aboriginal teenager detained at Don Dale was denied food and access to services while being held alone in a cell for more than 80 hours.
In Queensland, children as young as 10 can face life imprisonment for certain offences, with experts warning that the human rights of young people in the state have been “decimated” in recent years.
Katherine Hayes, CEO of the Youth Advocacy Centre, told National Indigenous Times in October, “Some of the most vulnerable and disadvantaged people in Queensland, in particular children in the youth justice system, have been denied basic human rights over the last few years.”
“This has led to a complete devaluation in Queensland of upholding human rights for those who need it the most.”
Commonwealth change needed
The federal government has repeatedly argued that setting the minimum age is a matter for 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.
Ms Lane said the federal government must urgently enforce minimum national standards in youth justice.
“41 countries agree that 10-year-olds don’t belong in prison — First Nations communities have the solutions,” she said. “Our children deserve dignity and respect, access to their culture and care – not cages.”
Ms Klintworth said that without a Human Rights Act, many Australians remain powerless to seek redress when their rights are violated.
“Amnesty calls on the government to legislate a Human Rights Act so everyone in Australia’s rights are protected, and so people can challenge injustice,” she said.