Senator Lidia Thorpe is joining calls for the Albanese Government to legislate minimum national standards to protect children in the criminal legal system, after new legal advice confirmed the Commonwealth has constitutional power to do so.
New legal advice obtained by the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), from Senior Counsel via the Justice and Equity Centre, confirms the Commonwealth has power under section 51 of the Constitution to legislate for youth justice reform.
The advice makes clear that the Federal Government can act to meet its international obligations on children’s rights, such as the UN Convention on the Rights of the Child. This includes setting a national minimum age of criminal responsibility at 14, and establishing minimum standards for the treatment of children across all state and territory criminal legal systems.
See NATSILS media release here.
This advice comes as incarceration of children continues to rise under punitive state and territory justice policies, with the latest Closing the Gap data showing targets on youth incarceration are going backwards.
Last month, the Queensland and Northern Territory governments indicated they would continue to prioritise punitive justice policies, even if it undermines progress on Closing the Gap.
Senator Thorpe says that as states and territories continue to disavow the Closing the Gap agreement, it is time for the Federal government to show decisive federal leadership.
Quotes attributable to Lidia Thorpe, Gunnai, Gunditjmara and Djab Wurrung independent Victorian Senator:
"For years the federal government has denied they have any power to protect children from abuse in prison, saying it’s a matter for the states and territories.
"This new legal advice proves that Albanese can and must act.
"Enough excuses. We have seen children subjected to horrific abuse in the system.
"Children dying by suicide from known hanging points, children locked in solitary confinement in police watch houses for days with the lights left on, children with disabilities assaulted, children denied food as a form of coercion – the list of abuse goes on
"Time and again human rights bodies have told the government this treatment violates the international agreements Australia has signed up to.
"The Albanese Government says it is committed to human rights and to Closing the Gap. But they refuse to take real action. Enough is enough.
"The government has both the power and the evidence that something must be done.
"This is not about a federal power grab. This is about establishing standards and obligations that protect human lives and children’s safety.
"Just because children are in prison does not mean their lives, health and safety don’t matter.
"The states are clearly not committed to this, despite their supposed commitment to Closing the Gap.
"This is a national crisis of state violence against children.
"The Federal Government has the power. The Prime Minister, the Attorney-General, and the Minister for Indigenous Australians must step up.
"It’s time we see some decisive federal leadership to protect our children."