Amid mounting calls for the Commonwealth to intervene in youth justice systems, legal experts have advised the Albanese government has the constitutional power to raise the age of criminal responsibility nationwide.
The Albanese government can use the "external affairs" power to override state and territory justice systems to enforce its international human rights obligations, according to advice provided by two barristers, one a Senior Counsel.
National Aboriginal and Torres Strait Islander Legal Services, which co-commissioned the advice, joined the growing calls for federal intervention into youth justice.
"The prime minister shouldn't need to be persuaded that eleven-year-olds don't belong in watch houses or that bringing back spit hoods is an extreme retrograde step," CEO Karly Warner said.
"The federal government has to address the human rights violations that our children are suffering as a result of state and territory government policies."
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.
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.
CEO of the Justice and Equity Centre Jonathon Hunyor said the legal advice, provided by barristers Kate Eastman AM SC and Emma Dunlop, clarified the federal government could use this power to override legislation that violates international treaties.
"Australia has international obligations under the Convention on the Rights of the Child to make sure that children are being protected from harms that get caused if they are unnecessarily locked up, if they are mistreated, in detention centres," he said.
"They're the sorts of things that the government can act on to make sure that state and territory laws aren't breaching those basic rights."
NATSILS and the Justice and Equity Centre have written to the prime minister calling for the age of criminal responsibility to be raised from 10 to 14 nationally, and minimum standards for the treatment of children to be set.
In a statement Attorney-General Michelle Rowland said the Albanese government takes its obligations under international human rights law ‘very seriously’.
She said the government is committed to "improving youth justice outcomes" in line with the Closing the Gap Agreement, with a focus on "practical measures to reduce youth incarceration rates" by investing $79 million over 4 years in justice reinvestment initiatives.
Prime Minister Anthony Albanese has previously rejected calls to intervene in youth justice systems, including in the Northern Territory, where the rate of children in detention has more than tripled since 2020.
"I need to be convinced that people in Canberra know better than people in the Northern Territory about how to deal with these issues, is my starting point," he said in June.
Last year, after a 17-year-old boy died in his cell at Perth's Banksia Hill Youth Detention Centre, he said the Commonwealth "isn't about to take over the juvenile justice system of the states and territories".
"Canberra is a long way from WA … services historically have been best delivered by state and territory governments," he said.
But legal experts argue the federal governments has used the external affairs power to intervene before.
Most famously the Hawke government used the external affairs power in the historic High Court decision over the Franklin River Dam in Tasmania.
The Commonwealth successfully stopped the Tasmanian government from constructing a dam, using the power to uphold its environmental obligations under the international World Heritage Convention.
"It's something that the Commonwealth does very, very rarely and reluctantly but we say that where there's clear harm being caused and a failure by states and territories to act it is time for the Commonwealth to step in," Mr Hunyor said.
The Northern Territory government has previously rejected calls for a federal intervention and defended lowering the age of criminal responsibility from 12 to 10, saying Territorians voted for the CLP's plan "to reduce crime [and] so that we can intervene early and address the root causes of crime".
A 'traumatised generation'
Internationally, the most common minimum age of criminal responsibility is 14, according to the UN.
The ACT is the only Australian jurisdiction to have raised the age to 14, and Victoria has raised it to 12, dropping its pledge to raise it to 14. Everywhere else, the minimum age of criminal responsibility is 10.
"There's an overwhelming amount of evidence about the earlier a child is in contact with a criminal justice system, the more likely they are to stay in contact with criminal justice systems into adulthood," said palawa woman Karly Warner.
An average of 80 per cent of the children held in detention were unsentenced in 2023-24, and in the Northern Territory that was 99 per cent, according to the Australian Institute of Health and Welfare.
Narungga and Ngarrindjeri youth worker Joshua Brown has worked inside youth detention centres in the NT mentoring young people caught up in the system.
He said detention of children should be a last resort, and there should be an emphasis on establishing diversionary programs within communities.
"Young people getting locked up and experiencing the conditions of being locked up, it changes their lives for the worst it changes their whole life trajectory," he said.
"We are going to have a whole generation of young people growing up who are dealing with this irreversible trauma."
Mr Brown said communities are feeling helpless as governments continue to introduce policies that drive children into contact with the system.
He is concerned if the federal government does not step in, cultural knowledge and tradition will be at risk.
"Communities are lost without their young people … they are kept thousands of kilometres away [in detention centres] and don't have access to them," he said.
"We are locking up the next knowledge holders of language, of culture, of traditions and it's going to have severe effects on Indigenous culture in Central Australia like it did to the Stolen Generations."
