The Federal Government’s Responsibility to Protect Kids with Disability in Youth Justice

As debates about youth justice continue to intensify, one responsibility remains consistently overlooked. Who, at a national level, is accountable for protecting children with disability from harm in detention? While youth justice systems are administered by the states and territories, the obligation to uphold children’s rights does not stop at jurisdictional borders. It rests with the Commonwealth. 

Solitary confinement brings this question into even sharper focus. The Mandela Rules define the practice as holding a person for 22 hours or more a day without meaningful human contact and prohibit its use on children under any circumstances. The Convention on the Rights of the Child reinforces this by requiring that children be deprived of liberty be treated with humanity and dignity, with detention used only as a last resort. Australia has accepted these standards internationally, yet they remain only partially reflected in domestic law.

Across the country, children are still isolated in locked rooms under different labels. Some jurisdictions call it separation. Others refer to behaviour management or segregation. The language varies, but the lived reality does not. Research and interviews with practitioners consistently show that the legal framework is fragmented, weakly regulated and poorly enforced. Even before disability is considered, Australia’s international commitments, domestic legislation and on-the-ground practices are misaligned.

For children with disability, the consequences of this gap are magnified. Evidence from the Disability Royal Commission, the Australian Human Rights Commission and multiple state oversight bodies shows that children with cognitive and psychosocial disabilities are placed in isolation more often and for longer periods. A child with ADHD, developmental delay or cognitive impairment may not understand why they are confined or how long it will last. That uncertainty compounds distress, undermines emotional regulation and intensifies harm.

Medical and psychological research leaves little room for doubt. Isolation deprives the brain of social and sensory stimulation that is essential for healthy development. Reduced human interaction suppresses activity in the hippocampus, the region responsible for learning, memory and emotional regulation, while extreme stress heightens reactivity in the amygdala, which governs fear and aggression. In developing brains, these effects are more severe. Solitary confinement does not correct behaviour. It reshapes the brain in ways that increase distress, aggression and the risk of self-harm.

International law reflects this reality. In addition to the UN Convention on the Rights of the Child, Australia is bound by the Convention on the Rights of Persons with Disabilities, which requires protection from torture and cruel, inhuman or degrading treatment. The Optional Protocol to the Convention Against Torture is designed to prevent exactly these kinds of practices in places of detention. Taken together, these instruments set clear standards. What persists in youth detention centres today falls well short of them.

The reason is not a lack of evidence. It is the absence of national action. States and territories continue to permit isolation through domestic legislation that uses different terminology and imposes safeguards that are routinely breached. Isolation is still used to manage staffing shortages or behavioural issues, despite being formally described as a last resort. The result is an accountability gap that has been felt most acutely by children with disability.

This gap becomes clearer when individual cases are examined.

Daniel’s story

Daniel was 16 years old when he was detained at Banksia Hill Detention Centre in Western Australia. In 2021, he was placed in the Intensive Support Unit for a month. During the first three weeks, he received between three and a half and four hours out of his cell each day. His mental health rapidly deteriorated. He made suicide threats, assaulted staff and was observed placing ligatures around his neck.

By the fourth week, Daniel’s out-of-cell time had dropped to less than three hours a day. He then attempted to take his own life. Over the following months, he moved between hospital and detention, attempting suicide multiple times. Daniel later described the isolation unit as triggering. He reported hearing voices and experiencing flashbacks. When he was finally placed in a different unit with more time out of his cell and greater access to staff and psychological support, his condition stabilised.

His experience illustrates a recurring pattern. Behaviour that detention centres attempt to control through isolation is often produced or intensified by the isolation itself.

JG’s story

JG was a 16-year-old Aboriginal girl held on remand for 94 days at Cleveland Youth Detention Centre in Queensland. She had been diagnosed with ADHD, Foetal Alcohol Spectrum Disorder and attachment disorder. For a 30-day period, authorised separation reports showed that she was locked in her cell for between 21 and 24 hours a day. On three of those days, she was not released at all.

In deciding her bail application, Justice Fantin noted that this level of confinement was likely to worsen JG’s mental health, contribute to behavioural difficulties and cause trauma. The Court emphasised that children with existing impairments are already disproportionately affected by imprisonment and that these factors must be taken into account, not sidelined.

These cases are not anomalies. They reflect structural failures that cut across jurisdictions. That raises a critical question. If the harm is national in character, where does responsibility sit?

Although youth justice is administered by the states, Australia’s treaty obligations attach to the Commonwealth as a whole. Lawyers and practitioners consistently point out that international duties are not divisible between levels of government. Under section 51(xxix) of the Constitution, the Commonwealth has clear authority to legislate to implement treaty obligations. This is settled constitutional doctrine, reaffirmed since the Tasmanian Dam Case. Federal legislation setting minimum standards for the treatment of children in detention, including a prohibition on solitary confinement, would be well within power.

If such legislation were enacted, section 109 would resolve any inconsistency. State laws that permit isolation would give way. This pathway is not speculative. It already exists.

What has been missing is the political will to use it. Research points to three elements needed to meet federal responsibility. National standards that reflect international law. Credible, independent oversight so that children’s rights do not depend on where they are detained. And cooperative implementation that supports states to meet those standards rather than allowing each system to drift.

When children with disability are subjected to isolation that is internationally prohibited and medically harmful, the case for federal intervention becomes difficult to ignore. The Commonwealth holds both the responsibility and the tools. The question is whether it will act.

History suggests that progress does not come from one institution alone. It comes when legal argument, evidence and lived experience align. When that alignment occurs, federal action stops looking exceptional and starts to look inevitable.

In a year marked by youth justice decisions that contradict the evidence, it is easy to feel disillusioned. But understanding where responsibility truly lies is a form of resistance in itself. It reframes solitary confinement not as a series of isolated state failures, but as a national issue demanding a national response.

Children with disability in detention are entitled to dignity, care and protection. Those rights do not diminish at state borders. They engage the Commonwealth’s responsibility in full. Whether that responsibility is finally met will say a great deal about the kind of justice system Australia chooses to uphold.