Sparing the next generation from a life behind bars

I have to admit that on hearing that I had been appointed Federal Attorney-General, I expect that I would panic; partly at the idea of having to spend so much time in Canberra(!), but mainly at the terrifying weight of expectation on me, both my own and others. After years as an advocate for social justice, I would now be measured against my aspirations and expected to deliver on the policy solutions I have proposed from outside government.

The fear of failure would grip me. What if I compromise on my principles and lose my moral compass? What if the solutions I have advocated from the outside turn out not to be solutions at all? What if I am seen as betraying the very people I have worked with for so many years? What if I fail?

Having thought deeply about these questions, I hope that I would emerge with some clarity about my purpose and ask a different question; what if I succeed? I would remind myself that change is possible and that my new position gives me a unique capacity to effect it. I would ask for a chance to make change and extend the hand of partnership both to my allies but also to those with different views and agendas.

Then, I would get to work.

First, I would set as my highest priority reducing the over-representation of Aboriginal and Torres Strait Islander people in prison. Twenty years after the Royal Commission into Aboriginal Deaths in Custody reported, Aboriginal people are imprisoned at higher rates than ever before. Although only about 3 per cent of the population nationally, Aboriginal and Torres Strait Islander people make up 2 per cent of the prison population. In juvenile detention, that figure is a staggering 60 cent.

I would issue this mandate to my Department and seek to influence my Cabinet colleagues and Attorneys-General around the country to adopt this as an objective and commit to meaningful action to achieve it.

I would adopt the principle of free, prior and informed consent as my overriding framework, as required by the United Nations Declaration on the Rights of Indigenous Peoples. This provides a process through which Government and Aboriginal communities can have a conversation on an equal footing and ensures that Aboriginal people are partners in the design, development, implementation, monitoring and evaluation of all programs, policies and legislation which affect their communities. I would ensure this conversation was ongoing and informed all of my actions.

To focus whole-of-government activity, I would lobby the Prime Minister and, through the Attorneys-General, all Premiers and Chief Ministers, to ensure that targets to reduce Aboriginal and Torres Strait Islander imprisonment are adopted at the next COAG meeting. Put simply, the achievement of the Government’s existing Closing the Gap targets depends to no small degree on reducing the over-representation of Aboriginal and Torres Strait Islander people in prison. I would make a compelling case for the adoption of a justice target, highlighting the negative effects of imprisonment on health, employment and economic development outcomes. I would seek advice from Aboriginal and Torres Strait Islander organizations, as well as key academics and researchers to inform the development of these targets. In doing so, I would seek to set an ambitious yet achievable goal for government action. At all times, I would be guided by the advice of Aboriginal leaders and communities and the question: would the achievement of this target result in the transformation of lives and communities? I would demand nothing less.

Having set a common national goal, I would seek to generate effective action from the Federal, State and Territory Governments. Aware of the key role of State and Territory Governments in setting criminal justice laws and policies in their jurisdictions, and the politics around law and order issues, I would need to be creative and strategic. I would seek to use all Federal funding, legal and policy levers available to me to influence action at the State and Territory level. This might include offering incentives in different forms to State and Territory Governments who achieve reductions in their Aboriginal and Torres Strait Islander prison population and substantially increasing Commonwealth Government funding for crime prevention, early intervention and non-custodial diversionary programs.

As an overarching policy framework for these investments, I would develop a national Justice Reinvestment strategy. Justice Reinvestment provides a mechanism for the redirection of resources over time from prisons to programs and services in communities which are shown to reduce offending and imprisonment rates.

I would make a robust economic case for this radical shift in policy. Prisons are expensive and have negative social and community impacts. Diverting funds over time from prisons to communities by reducing the prison population will therefore generate a far greater social and economic dividend. I would work closely with Treasury and the Productivity Commission to model the economic impacts of a Justice Reinvestment strategy and use this modeling to lobby other Federal Ministers and State and Territory treasurers.

I would work with my Ministerial colleagues to secure buy-in across a range of portfolios: justice, Indigenous affairs, health, employment and housing. I would present this as a necessary complement to, and extension of, the Government’s Social Inclusion and Closing the Gap agendas. Like the Social Inclusion agenda, Justice Reinvestment is a place-based model, designed to address the causes of over-representation at the community level. I would work with my Ministerial colleagues to build justice mapping into the Social Inclusion agenda and then identify and address service and infrastructure gaps in highly disadvantaged communities.

Then I would turn to addressing the structural deficits in the current system which contribute to over-imprisonment and to the mistreatment and abuse of Aboriginal and Torres Strait Islander people in prison. I'd remind my colleagues of the 270 Aboriginal people who have died in custody since the Royal Commission's report in 1992. I'd then act to ensure the Australian Government signed the Optional Protocol against Torture to establish an independent national prison oversight body and to mandate the UN Sub-Committee on the Prevention of Torture to inspect Australian custodial facilities and to hold us to account. I would then pressure my state and territory counterparts (again using a range of funding and other incentives and sanctions) to establish independent inspectors for custodial facilities (currently WA is the only state with such an office) and a mechanism for independent investigations into police misconduct and police-related deaths.

Finally, recognising that the lack of access to legal advice remains one of the many causes of Aboriginal over-imprisonment and is profoundly inequitable, I would address the chronic under-funding of the Aboriginal and Torres Strait Islander legal services across the country.

I am hopeful that these actions would have an effect, ultimately sparing the next generation from a life behind bars and building safer and happier communities.

If not, I would be the first to acknowledge my failure and would hold myself and my Government to account. This would mean looking Aboriginal and Torres Strait Islander people squarely in the eye and asking where I went wrong and what I needed to do next to achieve the change they want to see. I would hope that I would make their response my mandate and continue, in partnership and with renewed energy, with this vital work until Aboriginal and Torres Strait Islander people are genuinely equal before the law.

Jacqueline Phillips is the National Director of Australians for Native Title and Reconciliation.