The terms of reference for the royal commission into the Northern Territory’s youth detention regime are notably silent on the over-representation of Indigenous children in these systems.

It is not simply that vulnerable children are in custody and mistreated – it is that vulnerable Indigenous children bear the brunt of this punishment.

Across Australia, Indigenous children constitute at least 54% of children in juvenile detention centres. Indigenous children are 26 times more likely than non-Indigenous children to be in detention.

A royal commission set up to examine this system must interrogate the failures of an interventionist law-and-order approach for Indigenous children and their families, and identify pathways for taking Indigenous children out of jail and returning them to their families.

What is the state of play?

The proportion of Indigenous children in penal detention centres in the NT is higher than in any other state or territory: 97% of children in NT juvenile detention centres are Indigenous.

The territory’s youth detention rate is six times the national average. It has the highest number of children in juvenile detention per 100,000 ten-to-19-year-olds in Australia. Of these, approximately 60% are in the care of the NT’s Department of Children and Families.

The NT juvenile detention centres are overwhelming filled with children who have not been proven guilty of a crime or sentenced. Rather, they are detained while on remand.

Although not as high, these figures are consistent with the over-representation of Indigenous children nationally – both in juvenile detention centres and under child protection orders.

Over the past decade, due to some key shifts in Indigenous policy and criminal laws, the number of Indigenous children in NT juvenile detention centres has more than doubled. Any examination of the reasons for the over-representation of Indigenous children in prisons and out-of-home care needs to consider these shifts.

There has been a recent surge in law-and-order approaches in Aboriginal communities in the NT. In mid-2006, the federal government deployed Federal Police to NT communities and committed A$130 million to law-and-order strategies. In 2007, it embarked on the Northern Territory Intervention.

The government introduced legislation giving extended powers to police in Aboriginal communities. It prohibited certain information on Indigenous background from being considered when determining bail and sentencing Indigenous people.

The Intervention required the suspension of the Racial Discrimination Act, because the policies were racially discriminatory. Most of these measures have since been enshrined in the Stronger Futures in the Northern Territory Act.

This act also provides special policing powers for designated “alcohol-protected areas”, which cover most NT Aboriginal communities. The legislation created a lawful context for discriminatory treatment in the policing and sentencing of Indigenous people.

Since the Intervention, there has been a steep rise in the criminalisation of Indigenous young people. This includes a 100% increase in traffic and vehicle convictions for young people, such as driving unregistered vehicles or driving without a licence.

In Indigenous communities with the newly established police stations, Indigenous people have complained the police were “heavy-handed with children” when investigating a crime.

The federal and NT governments did not match their investment in police with an investment in Corrective Services to facilitate diversionary programs or home detention in Indigenous communities. This has meant Indigenous young people who are found guilty of an offence are either fined or go to prison. This contravenes the NT’s Youth Justice Act, which promotes the principle that penal custody should be a sentence of “last resort”.

Another key contributor to the increase of Indigenous children in juvenile detention is the NT government’s changes to its Bail Act. Similar to other states and territories, there are several exceptions that undermine the right to bail for young people. These include where offenders have been charged with drug offences or are repeat serious offenders (where they have committed a repeat serious offence within ten years).

In relation to sentencing, young offenders who are sentenced in the Supreme Court and convicted of a violent offence are subjected to the NT government’s regime of mandatory sentencing. This was introduced in 2013 to ensure custodial sentences are imposed, including on children who appear before the territory’s Supreme Court.

How to reduce the numbers

There are several legal changes that could dramatically and instantly reduce the number of Indigenous children in custody.

The first is to increase the age of criminal responsibility to 15. This would be consistent with many European countries, where it has not led to greater offending.

Evidence shows prisons are more likely to contribute to recidivism. Young people who participated in a juvenile pre-court diversion scheme in the NT were found to be less likely to reoffend.

Second, all young people should have a right to bail. By taking all young people out of remand, the numbers in juvenile detention centres would be reduced to a small fraction of what they are currently.

Outside the legal system, strengthening Indigenous communities to provide support and programs for vulnerable young people is critical for improving the prospects for Indigenous youth. This includes therapeutic and healing programs relating to trauma, mental health and disability issues – including foetal alcohol disorder spectrum, hearing loss, cognitive impairment and other forms of brain injury.

There needs to be greater Indigenous community control over child safety issues. This was a key recommendation of the Little Children Are Sacred report, which instead triggered a law-and-order response (the Intervention) in 2007. State interventions in the lives of young people have proven unsuccessful, if not diabolical, in protecting Indigenous children.

The royal commission’s terms of reference run the risk of characterising the NT as a “bad apple”. However, the extent of the mistreatment of Indigenous young people in juvenile detention centres is much broader than the Don Dale detention facility.

The problem is also much deeper, and points to endemic issues with removing Indigenous children from their families and communities and placing them in coercive environments and with non-Indigenous families.

Across Australia, governments regard locking up vulnerable Indigenous children as a legitimate exercise of state power. This practice has quickly descended into the legalisation of physical restraints, spit-hoods and ongoing isolation of young people in prison cells.

Systemic incarceration and removal from family of Indigenous young people need to be redressed. What the NT experience with state interventions has revealed is that rather than protecting young people, it has placed them at greater risk of mistreatment and trauma.