Australia is incarcerating more Indigenous children and young people on remand than ever before as states and territories enact a series of policies contradicting the Closing the Gap agreement.

Data from the Australian Institute of Health and Welfare (AIHW) has found on average, First Nations young people entered youth justice supervision at a younger age than non-Indigenous young people. In 2023-24, 65 per cent of those aged 10–17 in detention were Indigenous.

Of the 498.8 Indigenous children and young people held in detention on an average day during the same period, at least 415 (83 per cent) were unsentenced or on remand.

One of the recommendations from the Royal Commission into Indigenous deaths in custody was for First Nations people only to be incarcerated as a last resort. Furthermore, experts have long pointed out that early contact with the criminal justice system exacerbates long-term criminal behaviour, in turn making the community less safe.

Australia is paying the price for politically motivated 'tough on crime' policies that fail to prevent crime and entrench disadvantage, according to Justice Reform Initiative Executive Director, Dr Mindy Sotiri.

"Across the country, we are seeing a troubling shift towards politicised law-making —especially when it comes to more restrictive bail legislation," she said.

"While punitive policy approaches might be effective when it comes to scoring political points, there is absolutely no evidence that this approach is effective when it comes to reducing crime."

Over the last 12 months, jurisdictions across the country - from both sides of government - have given in to political pressure to enact "kneejerk" and punitive laws that have lowered the age of criminal responsibility, removed bail as a last resort, and introduced adult sentences for children.

Earlier this month, Victoria - regarded by many as Australia's most progressive state and leading the way in treaty negotiations with First Peoples - wound back bail laws introduced because of the death of Indigenous woman Veronica Nelson, with Premier Jacinta Allan admitting more people would be held on remand.

They expand on the youth bail laws seen in NSW - which Labor Premier Chris Minns has enthusiastically defended - by including adults, with the Victorian government touting them as the toughest in the country.

The Queensland government has suspended its Human Rights Act three times in two years and used its "adult crime, adult time" laws to have children face the same sentences as adults for several crimes. The rate of Indigenous children under youth justice supervision in the state is 22 times higher than that of non-Indigenous children; First Nations children are almost 26 times more likely to be in detention.

On Monday, National Aboriginal and Torres Strait Islander Legal Services (NATSILS) chair Karly Warner said more governments across the country were focused on "looking tough" rather than enacting policies that will help the community.

"How many lives will be destroyed before Premiers and Chief Ministers across the country realise that locking up children has never worked anywhere?" she said.

Dr Sotiri said when children can't access bail, an increasing number of children and young people are held on remand, "which in turn leads to increased community disconnection, and increased likelihood of future entrenched justice system involvement".

"Instead of funnelling more children into detention, we need all sides of politics to recognise that incarceration does not work to deter children from committing crime," she said.

"What works is investment in programs, including First Nations-led programs, outside of prison that address the underlying drivers of why children come into contact with the youth justice system."

The federal government has been criticised for not putting more pressure on the states to hold them accountable under the Closing the Gap agreement.

Speaking at the hearing in Canberra earlier this year, barrister Tony McAvoy SC said jurisdictions across the country "appear to be openly abandoning our country's international human rights obligation".

"Unless there is some commonwealth action, this will continue to be the case. It is not a question of if the commonwealth should act, but what it should do," he said.

Minister for Indigenous Australians, Malarndirri McCarthy told National Indigenous Times last month the Albanese Government is "committed to working with states and territories to prevent First Nations youths and adults coming into contact with the justice system".

"The National Agreement on Closing the Gap was signed by all states and territories, and they need to back up their commitment with action to achieve the targets and deliver on the Priority Reforms in their jurisdictions," she said.