By Arthur Moses SC, The Australian, 13 October 2021

Australia has a prison problem with more than 43,000 in jails on any given day.  During the past decade, the nation’s prison population has shot up 50 per cent, yet can it be said that our streets are 50 per cent safer?

Two months ago, Northern Territory Attorney-General Selena Uibo announced an agreement intended to reduce offending and imprisonment of Indigenous people in the Territory.

The Aboriginal Justice Agreement seeks to engage the Aboriginal leadership and improve services for remote NT communities. At its heart is investing in communities to prevent economic disadvantage by breaking vicious cycles of poverty, offending and incarceration.

Uibo, Australia’s first Indigenous Attorney-General, said the agreement was not about one race – the Aboriginal people. She described it as “all of us walking together” to make where we live a better place by reducing reoffending and improving justice responses for those who come before our criminal courts. It should be a model for reform across the board in Australia.

Prison can lead to a cycle of incarceration, starting young, that is hard to escape.

Almost three in four prisoners have been behind bars before. One in three has been in prison at least five times.

The disproportionate incarceration rates of Indigenous people is a national shame – 29 per cent of prisoners are Aboriginal or Torres Strait Islander, despite the fact Indigenous people make up only 3 per cent of our population. The money spent doesn’t make sense, either.

It costs roughly $331 a prisoner per day to keep them in jail. The national bill is close to $4bn a year for a system that is not succeeding.

Nelson Mandela said: “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones.”

The best way to protect our community is to prevent crime, yet governments of all persuasions seem locked into a bricks-and-mortar mentality. NSW is constructing a new prison. The Territory is building a new youth detention centre.

This jailing mentality persists despite the example last year of how prison populations could be lowered in just weeks to help minimise Covid-19 transmission risk. The NSW Bureau of Crime Statistics and Research found between March and May last year the state’s adult prison population decreased by 10.7 per cent, roughly 1500 people, largely because of a drop in the number of people on remand and more being granted bail. This was the first time the prison population had dipped since 2011, and it was done without compromising public safety.

So why haven’t we learnt from it? Our imprisonment rate is significantly higher than that of Japan, Ireland, Iceland, Germany and Finland. Even the US, with high incarceration rates and $US80bn a year spent on prisons, is looking to alternatives including rehabilitation.

In February, Queensland announced a pivot of its youth crime policy. Premier Annastacia Palaszczuk unveiled initiatives including a trial of GPS tracking devices and the ability for courts to seek assurances that youth offenders would adhere to bail conditions. Investing in preventive crime measures and early intervention instead of concrete and wire would be an important step.

So would providing support for social policy responses to the disadvantage that leads to involvement and entrapment in our criminal justice system.

If we could see inside our juvenile detention centres and prisons, would there be any dispute that the age of criminal responsibility should be lifted to keep more young people out of the system and engaged in school? Despite much talk, a committee of state and territory attorneys-general has made no progress on innocuous proposals to raise the age of criminal responsibility uniformly from 10 to 14. To his credit, ACT Attorney-General Shane Rattenbury has broken ranks on this. The excuse of some that services for children who exhibit offending behaviour remain inadequate has been used for years, and it is not clear why these things are not yet in place.

It has been eight years since the High Court pronounced that sentencing judges and magistrates were to take into account, as a factor of mitigation, the intergenerational disadvantage experienced by Indigenous people. It is disappointing that despite stakeholder support, the NSW government has yet to enshrine in legislation the proposed Walama Court as a specialist court, similar to the Drug Court. The proposal is supported by the Police Association of NSW and the NSW Bar Association. The Justice Department’s secretary called it an “excellent proposal”. The Walama Court would contribute to reducing recidivism through increased co-operation between the justice system and respected persons in Indigenous communities, more vigorous supervision orders and diversionary programs.

It is time to stop the revolving door of our justice system. This is about being sensible, not soft, on crime. Jail is no panacea.

Arthur Moses SC is a former president of the Law Council of Australia and NSW Bar Association. He is a national patron of the Justice Reform Initiative