Actions for the 48th Parliament of Australia
Urgently reduce forcible child removals, keep kids out of prison, and keep criminalised women safe, to reverse regression on Closing the Gap targets 10 and 12 and to progress on targets 11 and 13
Outcomes are regressing on several Closing the Gap targets, including the number of First Nations children in out-of-home care (10) and rates of First Nations adult incarceration (12). Progress is stalled on other targets, including rates of First Nations child imprisonment (11) and rates of family violence and abuse against First Nations women and children (13).
Stalling or regression on these Closing the Gap justice targets are interconnected. Systemic discrimination and trauma experienced by children taken from their families and placed in care away from their kin and culture drives the out-of-home care to prison pipeline. Over-criminalisation of Aboriginal and Torres Strait Islander people drives high rates of removal of First Nations kids from family, culture and Country.
Problem: culturally inappropriate systems for assessing risk to kids
The 1997 Bringing Them Home report concluded that forcible child removal was an act of genocide and that the treatment of Aboriginal and Torres Strait Islander people represented a gross violation of human rights. A February 2025 report by The Healing Foundation, Are you waiting for us to die? The unfinished business of Bringing Them Home, found that after almost thirty years, only 5 of the 83 Bringing Them Home recommendations have been clearly implemented, and that ‘both the removal of Aboriginal and Torres Strait Islander children into child protection systems, and the mass incarceration of Aboriginal and Torres Strait Islander people, have increased dramatically’.
When an Aboriginal child is removed, it is common for many First Nations family members to put their hands up to take on kinship care of the child but be denied. Every jurisdiction has its own system to determine whether the state deems a person to be an unacceptable risk to children. For the purposes of this document we refer to all jurisdictions’ checks collectively as a “Working With Children Check” (WWCC).
A person must have a current WWCC to care for children in the out-of-home care system, as must all adult members of their household. Checks look far back into a person’s history, and many things can disqualify a person, including pending and non-conviction charges and other disciplinary records.
WWCC systems are biased, culturally inappropriate, and fail to account for the historic and ongoing systematic injustices perpetrated against Aboriginal and Torres Strait Islander people. At the same time, these systems do not place enough emphasis on the benefits of placing First Nations children with their kin (as required by the Aboriginal and Torres Strait Islander Child Placement Principles). As a result, these systems often unjustly disqualify Aboriginal and Torres Strait Islander people from caring for kids whose families need extra support.
For example, an Aboriginal woman who is a victim of domestic violence but who has been misidentified by police as a perpetrator will often be ineligible for a WWCC. There are survivors of the Stolen Generations who were given criminal records for running away from state institutions as teenagers, who still cannot pass a WWCC and become kinship carers.
Historic and ongoing targeting of Aboriginal and Torres Strait Islander peoples by the criminal legal system combines with culturally inappropriate systems for assessing eligibility to care for children to allow the state to deem entire kinship networks as not qualified to care for family members’ kids.
Children’s safety is critically important. Aboriginal and Torres Strait Islander children already experience the worst harms caused by broken out-of-home care systems. Outdated and culturally inappropriate WWCCs are putting those with family members who are willing and able to care for them at heightened risk.
Solution:
Work with state and territory governments and the Aboriginal community-controlled sector to assess and reform all jurisdictions’ Working With Children Check, Blue Card or equivalent systems to improve cultural appropriateness and ensure Aboriginal and Torres Strait Islander people aren’t unjustly prevented from becoming kinship carers. Develop culturally appropriate frameworks for assessing actual risk to children, which consider the context of any existing or historical criminal records. Incorporate First Nations-determined protective measures to keep children safe from all forms of harm.
Problem: kids in jail
In all jurisdictions but one, the age of criminal responsibility is just 10 years old (in Victoria and the ACT it is 12). This means kids as young as 10 across most of the continent can be detained, charged, and jailed. According to the Australian Institute of Health and Welfare, in 2023-24:
- Aboriginal and Torres Strait Islander children were 27 times as likely to be imprisoned than non-Indigenous children.
- Two thirds of kids in prison were Aboriginal and Torres Strait Islander kids.
- On average, First Nations kids in prison were younger than non-Indigenous kids, with over 6% of First Nations kids in detention aged 10-13 years old.
Governments’ law-and-order agenda for children and young people is driving adult incarceration. The current approach sees young children kept in cells for many hours a day and denied access to regular schooling, time outside, socialising with other young people, family, community, First Nations support workers and adequate mental healthcare. Children can leave prison with immense trauma, which can drive a whole range of problems into adulthood. The statistics show that the younger a child is the first time they’re locked up, the more likely they are to be further criminalised as they get older.
Solution:
Kids belong in community, not in jail.
Work with state and territory governments to raise the age of criminal responsibility to at least 14 across all jurisdictions.
Problem: Aboriginal and Torres Strait Islander women in prison and at risk of violence
First Nations people in Australia are the most imprisoned people in the world. Adult incarceration is largely driven by trauma, poverty, removing children from their families, over-policing and systemic racism, all of which are disproportionately experienced by First Nations people.
Women, particularly Aboriginal and Torres Strait Islander women, are the fastest-growing group of people in prison. Most women in prison are also victims-survivors of domestic, sexual or family violence. Many First Nations women victims-survivors are misidentified by police as perpetrators and experience both the removal of their children and imprisonment as a consequence.
Two of the most common offences for which First Nations women are imprisoned are burglary and robbery – offences often associated with poverty. Australian Law Reform Commission Report 133 Pathways to Justice – Inquiry into the incarceration Rate of Aboriginal and Torres Strait Islander Peoples found that a significantly higher proportion of First Nations people are imprisoned for assaults that did not result in injury than is the case for non-Indigenous people.
Imprisoning Aboriginal and Torres Strait Islander women can have very significant impacts on the broader community, by disrupting care relationships and increasing the number of First Nations children in out of home care. Most Aboriginal women in prison are single mothers, and many have caring responsibilities for children other than their own biological children, as well as for older family members.
Most Aboriginal and Torres Strait Islander women in prison have had harmful contact with child removal systems – being removed as children, having their own children removed, or both. Supporting mothers’ contact with their kids while in custody reduces recidivism and further adverse contact with the child removal system following release. Despite this, too many women are kept from maintaining contact with their children while in custody.
The process of leaving prison is not supportive. Many people leave prison with no ID, no housing, no employment and no access to social security. If a person has been in prison for some time, the bank might have closed their accounts, so they can’t get Centrelink payments. But without a place to live or ID, it can be impossible to open a bank account.
There is often no continuity of casework support for people leaving prison. Some may have casework support in prison, and some may access it following release, but too many fall through the gap between. Without ID, support, or money, everything is harder. People leaving prison are set up to fail and too many end up in an ongoing cycle of release without support, minor reoffending, and re-incarceration.
Without the ability to prepare and secure a safe place to live following release, many women leaving prison are forced into the impossible choice between sleeping rough or returning to a violent home. Reducing rates of adult incarceration and domestic and family violence experienced by Aboriginal and Torres Strait Islander women both require that women leaving prison are given proper supports to be safe.
Solution:
Work with state and territory governments and the Aboriginal and Torres Strait Islander community-controlled sector to develop a national framework to support Aboriginal and Torres Strait Islander women in and leaving prison, which includes:
- Supporting women to maintain contact with their children while in custody
- Ensuring support for women ahead of release from prison to access ID, and to arrange income, a safe place to live, and access to health services.
- Implementing clear and consistent rules of access to prisons for organisations delivering critical services, including legal assistance. This includes facilitating continuity of casework support for people leading up to, and following, release.