First Nations Australians are among the most incarcerated peoples in the world.

The latest ABS data shows Aboriginal and Torres Strait Islander prisoners account for 37 per cent of the national prison population, despite Indigenous people making up less than four per cent of Australia's population.

The Uluru Statement from the Heart states:

"Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future"

But why is this the case?

Victoria's Aboriginal Justice Framework notes the outcomes experienced by Indigenous people are "inextricably linked to ongoing and previous generations' experiences of European colonisation".

"The consequences of colonisation are far-reaching and intergenerational, continuing to play out in Aboriginal peoples' interactions with the criminal justice system."

A range of socio-economic disadvantages — including poverty, homelessness, racism, family violence, mental health issues, disability and unemployment — all contribute to the over-incarceration of Indigenous people.

Cycles of recidivism further entrench long-term harm in communities, while imprisonment can deepen existing social and economic inequalities and create intergenerational impacts for families.

Interactions with the justice system

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found the "most significant contributing factor bringing Aboriginal people into conflict with the criminal justice system was their disadvantaged and unequal position in the wider society".

Speaking in 2017, former Chief Justice of Western Australia, the Hon. Wayne Martin AC, said:

"Aboriginal people are much more likely to be questioned by police than non-Aboriginal people. When questioned, they are more likely to be arrested. If they are arrested, they are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted. If convicted, they are much more likely to be imprisoned than non-Aboriginal people, and at the end of their term of imprisonment they are much less likely to get parole than non-Aboriginal people."

He surmised many of the reasons behind the disproportionate rates of Indigenous incarceration.

First Nations people are far more likely to be stopped and questioned by police, in what legal groups have argued amounts to racial profiling.

The outcomes of these interactions have coincided with laws across the country that disproportionately affect First Nations people.

"Governments across the country are knowingly driving the mass incarceration of Aboriginal people, including children, all in the name of political point-scoring," NATSILS Chair Nerita Waight said this year.

Lawyers have also routinely told National Indigenous Times that First Nations people are often held on remand, or denied parole after sentencing, because they do not have access to stable housing — further increasing the incarceration rates.

Indigenous children are also heavily over-represented in the child protection system, with many later entering the youth justice system — a cohort often referred to as "crossover kids".

Witnesses at the Yoorrook Justice Commission described Aboriginal women — who are 45 times more likely to experience family violence than non-Aboriginal women — being misidentified as perpetrators after calling police, only to then be arrested themselves and have their children removed.

There are also concerns about the lack of rehabilitation available in prisons, contributing to recidivism and ongoing risks for Aboriginal women and children.

Writing in National Indigenous Times, Dr Hannah McGlade said: "We know that Aboriginal male perpetrators, when they are apprehended and incarcerated, are not held accountable."

"Prisons can make women and children less safe as perpetrators leave with no rehabilitation and pose serious risk to women and children safety. Aboriginal men must be supported to lead programs to address violence and abuse."

The over-representation of Indigenous people in the justice system remains a national shame.

While there is no single reason one group is more criminalised than another, numerous inquiries have found both historical and contemporary government policies have contributed to intergenerational trauma.

Combined with poverty, racism, homelessness and family violence, these factors have driven the disproportionate rates of First Nations incarceration.