‘Tough on crime’ policies are causing Indigenous people to die in custody
- Written by Thalia Anthony, Professor of Law, University of Technology Sydney
When a First Nations person dies in custody, it sends shockwaves through families and communities. The trauma of losing a loved one adds to a sense of despair that First Nations lives are expendable, that no one is held to account, and that nothing changes.
In 1991, the Royal Commission into Aboriginal Deaths in Custody[1] investigated the crisis that had unfolded since 1980. It called for immediate and radical change to end the scourge of Aboriginal deaths in custody.
But that was more than 30 years ago. There have been 600 deaths in custody since then.
This week, data from the Australian Institute of Criminology[2] revealed the safety of First Nations people in custody is worse than ever[3]. There were more First Nations deaths in custody in 2024–25 than any year since 1979–80.
It’s a grim statistic that was entirely avoidable. But so long as politicians and the media continue to rely on the assumption that being “tough on crime” makes communities safer, First Nations deaths in custody will continue to spiral.
From bad to even worse
The figure of 33 deaths in custody is almost double the average number since 1989–90. This amounts to 29% of all deaths in custody.
The rate of First Nations deaths in prison custody per 100,000 of the relevant population was more than 25 times the rate for non-Indigenous people. For police custody, it was 21 times the rate for non-Indigenous people.
Of the 33 deaths, 26 occurred in prisons, six in police custody, and one in youth detention.
Almost half (42%) of First Nations people had not been convicted or sentenced. This is the equal highest number of unsentenced deaths in custody ever recorded.
For those in police custody, five (83%) died during the process of detaining the person, including one as a result of a police shooting.
Why are First Nations deaths in custody increasing?
Increases in imprisonment directly drive increases in deaths in custody.
The royal commission warned that if numbers of criminalised First Nations people rose, then deaths in custody will also rise. As such, a substantial proportion of its recommendations addressed the need to reduce penal interventions in the lives of First Nations people.
Yet, First Nations people are the most imprisoned[4] in the world. In 2025, there has been a record number of First Nations people in prison, at 17,158[5]. This accounts for 37% of imprisoned people.
Driving the increases are tougher bail laws[6], resulting in more people on remand who are unsentenced.
There has also been a push to harsher sentences, including as a result of higher maximum sentences[7], the expansion of mandatory minimum sentences[8] and the introduction of standard non-parole periods[9].
These changes are driven by “penal populism[10]”, in which governments and the media respond to isolated crime incidents by generating public fear and introducing tough-on-crime measures to garner electoral support.
Yet crime rates have remained steady, and the number of offenders proceeded against by police has declined since Australian Bureau of Statistics[11] began its records in 2008–09.
From these data, we can deduce those apprehended by police are more likely to be arrested, denied bail, convicted and sentenced to custody for longer periods.
The burden of tough-on-crime policies and practices falls most heavily on First Nations people. They are over-policed[12] and over-criminalised.
Adding to this burden is the burgeoning of police numbers to unprecedented levels[13], expanded police powers[14] and weaponry[15], and persistent and unaddressed systemic racism within police cultures[16].
Consequently, the use of police force toward First Nations people[17] far exceeds that of other groups.
Defying the evidence
Very few[18] of the 339 recommendations of the royal commission have been implemented since it was released.
Instead, many have been defied by state and territory governments, with all jurisdictions showing upwards trends in deaths in custody, but especially NSW, which has the highest overall prison population.
Increasing punishment[19] of First Nations people flouts the recommendations to reduce police apprehensions, use of remand and prison sentences.
It’s not only the statistics released this week. There are countless stories of the inhumane conditions[20] and suffering of First Nations adults[21] and children[22] in prison.
It all reveals that, as a nation, we have gone backwards[24].
One rare recommendation that has been universally implemented is the custody notification service[25]. This requires police to contact an Aboriginal legal service whenever a First Nations person is taken into custody.
It is arguably a key reason for the dramatic decline in deaths in police cells. Further implementation of the recommendations would likely result in similar positive outcomes.
What should be done?
Studies[26] indicate the need for more investment in protective factors, such as First Nations-led and community-based programs, services and accommodation. We are currently working[27] on more research in this space.
This needs to be matched with accountability of institutions and officers responsible for deaths in custody. The Anti-Racist Action Plan[28] of the Northern Territory Police, for example, is a step in the right direction.
We need whole of government approaches to turn the tide away from increasing imprisonment to promoting strong communities through First Nations reintegration and self-determination.
The issues facing First Nations people are social issues, and their solutions are not found in incarceration. Australian governments consistently demonstrate that they can find housing, food, jobs and programs for First Nations people in prison. They simply fail[29] to provide these resources when people are not in prison.
This contradiction exposes the deep structural dysfunction at the heart of our systems, and the profound neglect that drives First Nations people into the penal system. The cost is increasing deaths in custody and social, emotional and cultural harms to First Nations families and communities.
References
- ^ Royal Commission into Aboriginal Deaths in Custody (www.austlii.edu.au)
- ^ Australian Institute of Criminology (www.aic.gov.au)
- ^ worse than ever (theconversation.com)
- ^ most imprisoned (theconversation.com)
- ^ 17,158 (www.abs.gov.au)
- ^ tougher bail laws (theconversation.com)
- ^ higher maximum sentences (www.abc.net.au)
- ^ mandatory minimum sentences (www.alrc.gov.au)
- ^ standard non-parole periods (www.judcom.nsw.gov.au)
- ^ penal populism (academic.oup.com)
- ^ Australian Bureau of Statistics (www.abs.gov.au)
- ^ over-policed (www.mdpi.com)
- ^ unprecedented levels (www.pc.gov.au)
- ^ police powers (policeaccountability.org.au)
- ^ weaponry (www.abc.net.au)
- ^ systemic racism within police cultures (classic.austlii.edu.au)
- ^ use of police force toward First Nations people (rlc.org.au)
- ^ Very few (researchportalplus.anu.edu.au)
- ^ Increasing punishment (theconversation.com)
- ^ inhumane conditions (www.theguardian.com)
- ^ adults (nit.com.au)
- ^ children (www.abc.net.au)
- ^ Mark Evans/AAP (photos.aap.com.au)
- ^ gone backwards (theconversation.com)
- ^ custody notification service (theconversation.com)
- ^ Studies (papers.ssrn.com)
- ^ currently working (www.arc.gov.au)
- ^ Anti-Racist Action Plan (www.abc.net.au)
- ^ fail (www.closingthegap.gov.au)
