Aboriginal children less likely to be diverted from court by NSW police, data shows

A report released today by BOCSAR found Aboriginal children were 30 per cent less likely to receive a court diversion from police compared to non-Aboriginal children. A diversion, available under the NSW Young Offenders Act in the form of a warning, caution or intervention, aims to reduce a young person's contact with the court system and likelihood of repeat offending.

BOCSAR Executive Director Jackie Fitzgerald said the 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."

She 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.

The research also looked at a child's first contact with police, ruling out any history of offending. At first contact, 10 per cent of Aboriginal children were subjected to a formal court proceeding, compared 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.

BOCSAR found the disparity increased with age. At 10 and 11, an Aboriginal child was nearly 15 per cent more likely to be taken to court than a non-Aboriginal child. By age 17, the disparity rose to 36 per cent.

Ms Fitzgerald said the data showed the importance of 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 called on the state government and police minister 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. New South Wales Police has been contacted for comment.