Record high Aboriginal custody figures a stark ‘call to action’ for NSW lawyers

Aboriginal person Jamie* was just 16 the first time they stood in the Children’s Court – nervous, alone and already burdened by a lifetime of trauma and systemic oppression. Like many Aboriginal young people, Jamie entered the justice system without access to stable housing, consistent education, or meaningful cultural connection; conditions shaped by generations of colonial harm and institutional neglect.

That single appearance marked the beginning of a decade-long cycle of involvement with the justice system marked by mostly drug-related charges and more than 20 separate occasions where Jamie relied on a Legal Aid NSW lawyer for support.

In those years, Jamie spent more time in custody than out of it. The short-lived periods of freedom were shadowed by homelessness, instability and further harm including drug use and criminal activity. Each stretch in custody deepened their disconnection from Aboriginal culture and Country.

Jamie’s story is not only one of institutionalisation and loss, but of dignity denied.

Every day, lawyers sit with clients whose lives follow a similar trajectory shaped by the enduring impacts of colonisation, dispossession and systemic oppression; experiences that demand not just legal advocacy, but pathways to healing. Too often, the justice system responds with punishment instead of support, overlooking the potential of early intervention and diversionary measures that restore dignity, rebuild connection, and offer genuine opportunity for change.

The latest figures from BOCSAR, released in June 2025, confirm what we see daily in our work. The prison population in NSW is rising again. Most alarming is the scale of Aboriginal overrepresentation: Aboriginal adults now make up 33 per cent of the prison population, and Aboriginal children and young people account for nearly 60 per cent of those in youth detention. These figures should stop us all in our tracks. They are not just numbers on a page, they represent lives interrupted, families fractured and communities grieving.

Despite the promise of the National Agreement on Closing the Gap which committed to reducing Aboriginal overrepresentation in custody by 2031, the latest Productivity Commission data shows that we are not on track. The gap is not closing, it is widening.

Data serves as a reminder to lawyers they have the power to change lives

As lawyers, we cannot look away. The courtroom is not just about the matter before the bench, it is about people’s lives, histories, and futures. To treat these numbers as inevitable is to surrender to an unjust status quo, one that is not only unacceptable, but entirely within our power to change.

Lawyers have the power to change the trajectory of this custody data by advocating for alternatives to custody like therapeutic and restorative pathways like Circle Sentencing. At Legal Aid NSW, we are committed to standing with Aboriginal clients, their families and their communities in ways that seek to break the cycle of incarceration.  As an Aboriginal Field Officer said:

“Our job is to walk with our clients, not ahead of them, or behind them.

“We help them carry the load, and remind them of their strength.”

– Legal Aid NSW Aboriginal Field Officer.

We do this with culturally-informed advocacy, which ensures that courts understand the unique factors that shape the lives of our Aboriginal clients, from intergenerational trauma to systemic racism. The Bugmy Bar Book is one of the tools we use to make sure that context is never lost.

Aboriginal Field Officers, based in communities across the state, walk beside clients not just through their legal matters, but through the broader challenges of housing, health, and family connection. They are trusted guides, cultural anchors, and often the difference between a client being seen as a ‘case’ or as a whole person.

Therapeutic and restorative pathways such as Circle Sentencing, the Walama List, and the Youth Koori Court are not only more culturally respectful, they work. They incorporate lore into the law. They reduce reoffending, strengthen connection to culture and community, and restore dignity in a system that too often strips it away.

Holistic practice means our lawyers work in multidisciplinary teams alongside social workers, field officers and support staff to provide wrap-around support. We know that legal problems rarely exist in isolation, they are tied to housing, education, mental health and care.

Above all, our commitment is to listen to our clients, to our Aboriginal staff, and to the communities we serve. Solutions must be shaped with and by Aboriginal people, not imposed upon them. By following this path, all lawyers have the power to change the trajectory of this concerning custody data and change the course of people’s lives.

A call to action

The overrepresentation of Aboriginal people in custody is not a tragic inevitability – it is a direct consequence of systemic choices.

These outcomes are shaped by decisions made every day by lawyers, policymakers, and institutions and they can be reshaped by these decisions. Every lawyer practising on stolen land has an obligation to act. The power to disrupt this cycle of incarceration lies in the hands of the legal profession. The time to choose differently is now.

Here’s how:

1. Advocate for diversionary pathways
   Prioritise alternatives to custody such as Circle Sentencing, the Walama List, and Youth Koori Court. These approaches are culturally responsive and proven to reduce reoffending.
2. Use culturally informed tools
   Integrate resources like the Bugmy Bar Book into sentencing submissions to ensure courts understand the impact of intergenerational trauma and systemic disadvantage.
3. Collaborate with Aboriginal support services
   Work alongside Aboriginal Field Officers, community organisations, and multidisciplinary teams to provide holistic support that addresses housing, health, and family needs.
4. Build cultural capability
   Engage in ongoing cultural awareness training and seek guidance from Aboriginal colleagues and communities to ensure respectful and informed advocacy.
5. Listen and co-design solutions
   Involve Aboriginal clients and communities in shaping legal strategies. Solutions must be developed with Aboriginal people, not for them.
6. Challenge systemic bias
   Speak up in court and in policy forums about the structural inequalities that drive Aboriginal overrepresentation. Use your voice to push for reform.
7. Mentor and support change
   Encourage peers to adopt culturally safe practices and share knowledge about effective diversionary options. Change spreads through leadership and example.

Lawyers must advocate with cultural awareness and creativity; policymakers must engage with evidence and community voices; and communities must be supported to lead solutions. This is not just a professional responsibility. It is a moral and legal obligation.

We practise law on land that was never ceded, and that reality must inform our approach. Every lawyer has a duty to act with integrity and accountability, recognising that justice for Aboriginal people cannot be achieved without acknowledging the ongoing impacts of colonisation. It means seeing every Jamie as a person beyond a statistic, a person whose life holds value, whose story deserves to be heard, whose future matters, and whose path can be changed by one lawyer choosing to act with purpose. Will that lawyer be you?

Melissa Burgess is Deputy Director, Criminal Law at Legal Aid NSW and Kimberley Hamer is Director, Aboriginal Services at Legal Aid NSW.