The Black Lives Matter movement that erupted into mainstream public consciousness in 2020 shone a light on the criminalisation, hyper incarceration and high incidents of deaths in custody impacting Black and First Nations communities across the world.
In the United States, where the movement reemerged following the death in police custody of African American man George Floyd, one in every 55 Black American men is in prison. In Australia, the rate is even higher, at one in every 22 First Nations men.
In Australia, First Nations men are 17 times more likely than non-Indigenous men to be incarcerated. And the situation is even worse for First Nations women – who are 25 times more likely to be in prison than non-Indigenous women. First Nations children are 29 times more likely to be in detention than other children in Australia.
Due to this massive over-representation, First Nations peoples in Australia also disproportionately die at the hands of the criminal legal system, including during or as a result of police interactions. In 2024 alone, there were at least 20 First Nations deaths in custody, adding to the 600+ deaths since the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) Final Report, as of November 2024.
Head to our spotlight on Deaths in Custody to learn more.
Protesters march on 6 June, 2020 in Adelaide, Australia. Events across the country were organised in solidarity with Black Lives Matter protests in the United States and to rally against First Nations deaths in custody in Australia.
‘Justice’ system: broken or built this way?
The alarming statistics of over-representation and over-incarceration are not, as the Uluru Statement illuminates, because First Nations peoples are an ‘innately criminal people’. The most significant contributing factor leading to the gross over-representation of First Nations peoples at all stages of the criminal legal system is in fact historical and a result of ongoing structural disadvantage, including systemic racism, stemming from the ‘settler-colonial project’.
Proportionally, we are the most incarcerated people on the planet. We are not innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
The Uluru Statement From the Heart.
In the context of colonisation, carceral systems of policing, custody and incarceration can be understood as the latest iterations of a system never intended to protect First Nations peoples. Instead, these systems are a continuation of the ‘White Australia’ and assimilation policies used to control them. And this begs the question: as one arm of the overarching settler-colonial project that is designed to consistently police, devalue and disappear First Nations life, is the so-called ‘justice’ system broken, or is it working exactly as intended?
First Nations communities have long engaged in fierce advocacy, public protests, truth-telling and organised resistance to address the fact that proportionally, they are the most incarcerated people on the planet. There is also a long history of activism and resistance addressing the disproportionate number of First Nations deaths in custody, as well as anger at the often unjust outcomes of coronial inquests.
Since 2020, the global Black Lives Matter movement has started to bring this long history of Black and First Nations resistance into the public consciousness, though as a nation Australia largely continues to deny responsibility, preferring to believe instead in the myth of the ‘lucky country’.
Black Lives Matter
In June 2020, the brutal murder of an African American man, George Floyd, sparked a global uprising known as the Black Lives Matter (BLM) movement. After millions witnessed the murder at the hands of the police, the BLM movement prompted Australians to pay closer attention to the disproportionate incarceration, oppression, systemic racism, and police brutality levelled against First Nations people here in Australia. Despite restrictions on public gatherings due to the COVID-19 pandemic, BLM rallies in Australia attracted hundreds of thousands of participants.
Since the BLM protests of 2020, First Nations advocates and activists continue to speak out about the long overdue and urgent need to address the criminalisation, hyper-incarceration, and police brutality being inflicted on First Nations people in Australia, including children. Despite the visibility and mass outpouring of support for the BLM movement, 2022-23 was the deadliest year on record, with the highest incidence of First Nations deaths in custody since records began.
Despite the high visibility of BLM, some activists such as Wiradjuri and Wailwan woman and lawyer Teela Reid point to the need to look beyond global social movements – however hopeful and mobilising they may be – toward deeper questions that address the rightful place of First Nations peoples in what continues to be a nation firmly engaged in the settler-colonial project.
“It is frustrating, as a First Nations person, to try and understand why it takes a global movement to address these issues… I think we really need to get real about the question, because the question isn’t just that Aboriginal people continue to die in custody here. The question is a moral one that the nation needs to grapple with [and that] is: what is the rightful place of its First Nations? Where do we fit in the national narrative?”
Teela Reid
Over-Policing
The British invasion of Australia and the establishment of the settler colony facilitated the systematic removal of First Nations peoples from their lands and the denial of legal rights. It is within this historical context that policing in Australia has developed and been used as a tool to dispossess First Nations peoples from their land, and remove children from their families and culture.
Contemporary practices of policing continue to criminalise First Nations peoples and facilitate – often violently – their separation from community, culture and language. In particular, racial profiling within contemporary policing – with its over-surveillance of First Nations communities and discriminatory police decision-making – represents a continuation of beliefs in white superiority that can be traced back to Australia’s ‘Protectionist’ period. We see this nation-wide, with the rhetoric of ‘community safety’ used to disguise what is in fact the systemic targeting and criminalisation of First Nations individuals by police.
For First Nations children in particular, first contact with police usually determines their pathway into and through the criminal legal system. Police discretion not only affects a child’s criminal record, but their access to diversionary options and likelihood of future imprisonment. Discretionary police decisions work against the interests of First Nations people, with First Nations children being particularly impacted. Studies have found that First Nations young people are less likely to receive diversionary options, more likely to be arrested, and more likely to have their bail refused than their non-Indigenous peers.
Youth Justice
First Nations children are disproportionately targeted and criminalised by the Australian criminal legal system. Aboriginal and Torres Strait Islander children are 29 times more likely to be in detention than other children, as well as 10.5 times more likely to be living in out-of-home care than non-Indigenous children, which significantly contributes to their contact with the criminal legal system.
ANTAR has long campaigned for governments to raise the minimum age of criminal responsibility as a critical step in reducing the number of incarcerated First Nations children. Learn more about Raising the Age here.
Australian governments are aware of the issues at hand. The Closing the Gap strategy seeks to reduce the rate of Aboriginal and Torres Strait Islander young people (aged 10 to 17 years old) in detention by 30 percent by 2031. However, we are far from being on track to meet these targets, instead going backwards. According to the NSW Bureau of Crime Statistics and Research, the number of young First Nations people in custody has increased by 55 percent since 2022. First Nations children represent 66.4 percent of the youth detention population.
The disproportionate removal of First Nations children from their families into the ‘child protection’ system has been widely noted as one of the most pressing human rights challenges Australia faces, as well as creating ‘another Stolen Generation’. For First Nations children in particular, being removed from their families and forced to interact with legal and out-of-home care systems is not only a key driver for adult incarceration, it also increases their chances of being trapped in lifelong cycles of unemployment, poverty and harm. Research shows that First Nations children exposed to criminal legal systems are also much more likely to have experienced disadvantage and instability. Studies in Victoria found that 88% of children sentenced to imprisonment by the Children’s Court have been subjected to an average of 4.6 notifications to child protection agencies.
First Nations children with neuro-cognitive impairments, disabilities and other complex needs are particularly overrepresented in criminal legal systems and incarceration.
Studies by the British Medical Journal on children detained at Banksia Hill youth detention facility (WA) found that amongst sentenced children, almost every child had at least one form of severe neuro-developmental impairment. 36% were found to have Fetal Alcohol Spectrum Disorder (FASD).This is the highest known prevalence of FASD in a custodial setting worldwide. The majority of the participants in the study (74%) were First Nations children.
Despite the many challenges facing First Nations kids who are targeted and criminalised, these children continually find ways to showcase their incredible strength, resilience and wisdom. To hear from the First Nations children who have been exposed to the criminal legal system, and to better understand the solutions they are advocating for, explore the following:
Warning: The video below contains content that some viewers may find distressing, including references to incarceration, sexual abuse, violence, drug use and suicide. It is not suitable for younger viewers.
Over-Incarceration
As of March 2024, approximately 3841 First Nations adults in Australia were in custody – the highest number ever recorded. Of the total adult custody population, 30.8% were of Aboriginal and Torres Strait Islander descent, despite compromising just 3.4% of the total Australian population.
What these statistics highlight is the continued role of systemic racism at all stages of the criminal legal system, including in the legislation that underpins our legal structures. Punitive ‘law and order’ approaches are the latest iteration of Australia’s settler-colonial project that has sought to dispossess First Nations peoples of their inherent rights to self-determination and sovereignty through paternalistic policies, laws and practices.
Research consistently shows that incarceration does not reduce crime, and in fact has the opposite effect. Criminal justice research from UNSW shows that harsher punishments and longer prison sentences are criminogenic, meaning they make it more likely that people will engage in further criminal activity. Likewise, there is no evidence to suggest ‘tough on crime’ approaches improve community safety. What’s more, the earlier a child is sentenced as part of criminal legal proceedings, the more likely they are to reoffend and to reoffend violently. In other words, jailing is failing.
The over-incarceration of First Nations people is exacerbated by legislation that disproportionately targets and criminalises First Nations individuals and communities. This is a core part of what we mean by structural disadvantage and systemic racism.
For example, in WA the ‘Three Strikes’ laws dictate that individuals who commit a third burglary offence are mandated to serve a minimum 12 month imprisonment sentence without consideration of extrajudicial factors, such as socio-economic disadvantage, mental health conditions or intergenerational trauma. Such policies disproportionately affect First Nations peoples, widening gaps in incarceration rates between First Nations individuals and non-Indigenous Australians.
In 2024, the NSW Labor Government toughened bail laws to include an extra test for 14-18 year olds charged with certain offences making it harder for teenagers to get bail. The introduction of harsher, more punitive law and order measures such as these will result in more children, many of them First Nations, being incarcerated for longer without consideration of the complex structural injustices that hinder First Nations peoples in the first place.
The criminalisation of public drunkenness has empowered police to search, arrest and place people drinking publicly in ‘protective custody’ which in theory places intoxicated people in prison cells to keep them ‘safe from harm’. However, First Nations peoples are disproportionately targeted under these laws – in Victoria, despite making up 0.8 percent of the state’s population, 6.5 percent of all public drunkenness offences were recorded against First Nations individuals. RCIADIC made recommendations to abolish the offence of public intoxication and that governments establish non-custodial facilities for the treatment of intoxicated persons and use alternatives to detaining people in police cells, such as sobering-up centres.
Following a long campaign from Tanya Day’s family into the abolishment of public intoxication laws in Victoria, the state government has repealed its legislation to take a public health approach that prioritises delivering dedicated outreach programs for First Nations peoples. The public health approach undertaken by Victoria should be the path all state jurisdictions take in understanding the disproportionate effect of discriminatory legislation, unlike the Northern Territory, who have recently re-criminalised public intoxication.
