Police less likely to intervene to keep Aboriginal children from court

NSW police are less likely to divert an Aboriginal child from court compared to a non-Aboriginal child, new data shows.

Under the NSW Young Offenders Act, police can give children a diversion if they have allegedly committed a crime, which aims to reduce a young person's contact with the court system and likelihood of repeat offending.

A diversion can take the form of a warning, a caution or an intervention. 

A report released today by the NSW Bureau of Crime Statistics and Research (BOCSAR) found Aboriginal children were 30 per cent less likely to receive a court diversion from police compared to non-Aboriginal children.

BOCSAR Executive Director Jackie Fitzgerald said this disparity existed "even when the alleged offence is eligible for diversion under the Young Offenders Act".

Ms Fitzgerald said several factors affected whether a young person was issued a court diversion.

"But after considering the severity of the offending, prior contact, and bail status, we can still see that Aboriginal children remain about eight percentage points more likely to be proceeded to court,"

she said.

"And we can't explain that eight percentage point differential in terms of the data."

Ms Fitzgerald said a young person's "cooperation with police", and "any bias treatment" were potential reasons that could not be captured by the data.

BOCSAR research labelled the overall disparity as "concerning", because part of the Young Offenders Act was aimed at reducing the over-representation of Aboriginal children in the justice system.

Explaining the gap

Ms Fitzgerald said a young person's history with police or prior offending could impact whether an officer issued a court diversion.

The research also looked at a child's first contact with police and ruled out any history of offending.

The BOCSAR data showed that at first contact with police, 10 per cent of Aboriginal children were subjected to a formal court proceeding. This compares with 5 per cent of non-Aboriginal children.

Ms Fitzgerald said 80 per cent of the difference could not be explained by the data.

"Even at that first formal proceeding, there is still a differential in the likelihood of Aboriginal and non-Aboriginal young people being diverted [from court]," she said.

NSW Aboriginal Legal Service Acting Chief Executive Sharif Deen said the gap "cannot be explained by any other objective factor".

"It leaves the inevitable conclusion that Aboriginal children in NSW are treated differently by NSW police due to bias … and racism, unconscious or otherwise,"

he said.

Disparity increases with age 

BOCSAR research found the disparity between Aboriginal and non-Aboriginal children being diverted from court increased as a child aged.

At 10 and 11 years of age, an Aboriginal child dealing with police was nearly 15 per cent more likely to be taken to court, compared to a non-Aboriginal child.

This disparity increased to 36 per cent by the age of 17.

Ms Fitzgerald said this data showed how important it was for children to receive court diversions.

"As young people age through the youth justice system, as they accumulate more contacts [with police] … they're less likely to get the benefit of [a court] diversion,"

she said.

"This research suggests that there is a benefit in making sure that young people have access to diversion, and making sure that's also available to Aboriginal young people who are coming into contact with police."

Mr Deen said the state government and police minister needed to listen to First Nations communities.

"It cannot be acceptable that in 2026 an Aboriginal child, for no reason other than the fact that they are Aboriginal, receives worse treatment from the agency that's designed to protect them," he said.

"The government's own data confirms that … NSW Police treat Aboriginal people and Aboriginal children differently."

The Aboriginal Legal Service also called for increased and independent oversight of NSW Police.