In this article David Brown, co-author of Justice Reinvestment: Winding Back Imprisonment, discusses the disproportionately high imprisonment rates of Aboriginal people.

In Justice Reinvestment: Winding Back Imprisonment (Palgrave, 2016) the authors argued that the justice reinvestment groundswell in Australia has ‘emerged out of a focus on Indigenous communities and is linked to issues of Indigenous democracy’, a term used as ‘shorthand for issues of Indigenous governance, empowerment, self determination and nation building’ (pp240-1).

Subsequent developments at both a state and federal level have consolidated the link between developing Indigenous democracy and addressing the high imprisonment rates of Aboriginal people.

In New South Wales, the most populous state, the Just Reinvest NSW group, a coalition of organizations, have come together to address the significant over-representation of Aboriginal young people in custody through a Justice Reinvestment framework. The group has spent more than three years developing an Aboriginal initiated and led local justice reinvestment strategy in Bourke, a regional town in North West NSW, focused on reducing the involvement of Aboriginal young people in the criminal justice system.

In August 2017 the group organised a seminar at the NSW Parliament House to discuss the first of a series of planned policy papers, calling for smarter sentencing and parole law reform. In a show of bipartisan support the meeting was addressed by the NSW Liberal/National Party Coalition Attorney General, the Australian Labor Party shadow Attorney General, and the Greens Justice spokesperson, as well as Just Reinvest representatives.

Proposals put forward included firstly, ensuring the availability and expanding the scope of Intensive Corrections Orders (ICOs), currently not available in many rural and regional locations, and expanding their scope to include therapeutic programs as alternatives to the work component. Secondly to reduce the imposition of sentences of six months or less by encouraging greater use of ICOs and other non custodial options. Thirdly, to change the response to breaches of parole and support measures to reduce the likelihood of breach.

Other proposals under development include: mapping existing residential and non-residential drug and alcohol programs for Indigenous people; expanding the operation of Indigenous Courts across NSW; addressing the specific needs of Indigenous women who are at risk of offending/re-offending; establishing a more equitable approach to penalty notices and fines; and framing smarter orders and implementing breach reduction strategies. All these and other policy reforms put forward by the Just Reinvest group are framed within an overall approach which emphasises Aboriginal initiation and control of criminal justice programs and services in Aboriginal communities. Key objectives include: reducing crime and creating safer communities; an end to postcode justice; and focusing expenditure on measures which support early intervention, improve public health, strengthen communities and prevent crime, rather than simply expanding the prison system.

While day to day criminal justice issues are largely the responsibility of state governments, recent developments at a federal level indicate the centrality of developing mechanisms that give Indigenous people a voice in their own governance, to any attempt to address their conditions of marginality, disadvantage and over imprisonment.

After a decade of inconclusive debate over the ‘recognition’ of Aboriginal and Torres Strait Islander people in the Australian constitution a large grouping of Indigenous leaders at Uluru in May this year rejected the idea of recognition in the constitution and called for a representative body to be enshrined in the constitution and a process that would work toward a treaty.

The Uluru Statement from the Heart said, in part:

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.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

It remains to be seen how Australian people and politicians respond to this ‘statement from the heart’. Whether or not a Makarrata or treaty eventuates what is clear is that after the Uluru statement the link between addressing issues of Indigenous democracy and the high imprisonment rates of Aboriginal people can no longer be ignored. This is an important step in the struggle to develop more imaginative, culturally appropriate and effective criminal justice policies such as justice reinvestment and other community based initiatives.

David Brown is Emeritus Professor in the Faculty of Law, University of New South Wales, Australia, and Adjunct Professor at the School of Justice, Queensland University of Technology, Australia. He is co-author of Justice Reinvestment: Winding Back Imprisonment with Chris Cunneen, Melanie Schwartz, Julie Stubbs and Courtney Young