New data from the NSW Bureau of Statistics and Research (BOCSAR) reveals police are 30 per cent less likely to let Aboriginal kids off with a warning, caution or restorative justice measures.
Between April 2022 and March 2025, 46 per cent of police matters involving Aboriginal children were diverted from court, compared to 76 per cent of matters involving non-Aboriginal children.
BOCSAR Executive Director Jackie Fitzgerald said the disparities around which children end up in court were not explained by differences in eligibility for diversionary options.
“When we restricted the analysis to matters where diversion was available to police, Aboriginal children were still 30 percentage points less likely to be diverted from court,” she said.
Further factors relevant to police discretion, including the seriousness of an offence, prior convictions, bail status and other observable characteristics, were also considered.
“We can account for much of the disparity using the information available to us, but we cannot identify what is driving the remaining eight percentage point gap,” Fitzgerald said.
“There are factors that could influence diversion decisions that were not well captured in the available data, such as whether a child admitted the offence or cooperated with police.
“Discrimination is also a possible explanation, but this study cannot determine whether, or to what extent, it contributes to the gap.”
NSW Aboriginal Legal Service CEO Sharif Deen, of the Gunggandji, Wuthathi and Kaurareg peoples, says the analysis shows that “Aboriginal children are treated differently by police due to bias and racism”.
“This data adds to a mass of evidence that NSW Police treat Aboriginal children more harshly even when all circumstances are the same,” he said.
Mr Deen said the BOCSAR data on children’s first formal contact with police was particularly damning.
The agency found police were twice as likely to send Aboriginal children to court during their first formal contact – before a history of cautions or court appearances could influence the decision.
Roughly 10 per cent of eligible matters proceeded to court, compared to 5 per cent for non-Aboriginal children, and researchers were unable to account for the difference in most of those cases.
“This is contributing to the current justice crisis where Aboriginal children make up half of all kids in New South Wales prisons, despite making up eight per cent of the population,” said Mr Deen.
“Part of the reason we're overrepresented in the criminal legal system is because police don't use discretion where they could, and they’re treating Aboriginal children more harshly, which is resulting in more children being incarcerated.”
The BOCSAR study also found that the disparity in diversion rates worsened with age as Aboriginal children disproportionately accumulated contact with police and courts.
“The findings highlight the importance of reducing repeated justice-system contact and better understanding the factors affecting police decisions to divert young people, particularly for Aboriginal children,” Fitzgerald said.
Mr Deen is calling for a reduction in police discretionary powers, greater investment in community and local solutions to divert children from courts, as well as ongoing support.
“It's now up to government and parliament to limit the role of police discretion in determining who gets forced into the criminal legal system, so that the law is applied equally, without discrimination,” he said.
NSW Police have been contacted for comment.
