‘What Happens Next?’: Can We Reinvent the Justice System?

Dr. Susan Carland:

Hi, and welcome to What Happens Next, I'm Dr. Susan Carland. This is part two and our final episode, Looking at Indigenous Incarceration in Australia. In our previous episode, we looked at the major contributing factors causing such a disproportionate representation of Australia's indigenous population in our prison system. In this episode, we speak to our experts about what needs to be done to address this issue. We speak again to Jacinta Elston from Monash University, Aboriginal and Torres Strait Islander humans' right lawyer, Meena Singh, and criminologist, Dr. Kate Burns.

Dr. Kate Burns:

Hi, I'm Dr. Kate Burns. I'm a lecturer in criminology at Monash University.

Dr. Susan Carland:

What do you see as some of the solutions? What's the way forward? 30 years have gone and things aren't great. If you could press the reset button now, what'd you do?

Dr. Kate Burns:

So, I think definitely I think we have issues about self-determination and listening to indigenous Australians. We know that the people most impacted by over-incarceration do not have a seat at the table. They're not the decision makers at the moment. So, there's something about self-transformation listening, but also there is some policy changes that could occur that would make a big difference already and one of those is about raising the age of criminal responsibility.

Dr. Susan Carland:

What is that at the moment?

Dr. Kate Burns:

So, at the moment, the age of criminal responsibility is 10. So, that means children as young, as 10 can be incarcerated. And we know that last year, over 600 children, age 10 to 13 were incarcerated.

Dr. Susan Carland:

And what percentage of those would have been indigenous children?

Dr. Kate Burns:

So, 60% of those children were indigenous. And we know that all the children in the Northern territory that were incarcerated were indigenous. So, by raising the age of criminal responsibility and giving communities the empowerment to actually implement programmes, they would be able to get those children safe. They are doing silly things, mucking about actually trying to get them on the right track. But we know that the younger children are involved in the criminal justice system. And in particular, the younger they are incarcerated, the more likely they are to re-offend, the more likely they are to re-offend violently and the more likely they are to enter the adult criminal justice system. So, if we can stop that at the start, that would be a really, really good way of approaching it.

Dr. Susan Carland:

I can't get past this idea of a 10 year old in jail.

Dr. Kate Burns:

Yeah.

Dr. Susan Carland:

10 is so little, it's a very young child and the thought of a 10 year olds being alone in prison without their parents or guardians with them and the traumatising effect that would have is horrifying. Is Australia unusual in sending such young children to jail?

Dr. Kate Burns:

Well, no, unfortunately. But it is, there is a massive push from other countries and particularly the UN has been saying that we need to raise the age. A lot of countries are raising the age.

Dr. Susan Carland:

What would the UN say the minimum age should be?

Dr. Kate Burns:

They say 14.

Dr. Susan Carland:

That's still pretty young. I've a 14 year old. They do a lot of dumb stuff.

Dr. Kate Burns:

Well, I think that, well at 10 they're like, 14 is still young. It is still is young. And we know actually that our brains don't stop developing until they're 25.

Dr. Susan Carland:

That's what I was going to say. If you think about the young children at 10 and they find it very difficult to anticipate the outcomes of the things they do. And then we also know teenage brains, particularly teenage boy brains are primed for risk-taking behaviours.

Dr. Kate Burns:

Yeah.

Dr. Susan Carland:

So, it's difficult to consider that we are putting young children or young people in prison for something that they don't have full control over yet.

Dr. Kate Burns:

Yes, exactly. And so, I think that's why there is this big push from so many advocates and it's not, it's lawyers, it's doctors, everyone is really pushing and there's a huge campaign about pushing about raising the age because 10 is so young that, I mean, they're assuming that a 10 year old knows what they're doing is criminal. And so, without looking at maybe why that 10 year old might be acting the way they are. And so, and yes, 14 is still so, so young. It's actually, it's inconceivable that children that age are being incarcerated.

Dr. Susan Carland:

Yeah. My 14 year old still needs me to remind them to get a jumper.

Dr. Kate Burns:

Yeah, exactly. So, and it also once kids have been incarcerated their life chances and the rest of the future is really reduced because of the stigma of incarceration because of the trauma and the way that the criminal justice system treats children and the way that as a society, we treat people that have been incarcerated.

Meena Singh:

Hi. My name's Meena Singh. I'm a Yorta Yorta, an Indian woman and I am the Legal Director at the Human Rights Law Centre heading up our work for Aboriginal and Torres Strait Islander peoples' right.

Dr. Susan Carland:

If you could wave a magic wand now and change just three things about this issue. I'm sure there's many more than three. We know the Royal Commission into Indigenous Deaths in Custody had hundreds of recommendations, but you could just change your top three things in this issue, what would you change and how would you do it?

Meena Singh:

I would immediately have the age of criminal responsibility raised from 10 years old to 14 years of age. Yeah, that would be my first big thing, my first wave of the magic wand. The second would be around far, far greater investment into Aboriginal lives, into the things that make community strong. So, investment in homes, building more homes and prisons, investment in education, investment in health, in mental health and wellbeing. These are the things that keep community safe. When I reflect on my own life and the things that kept me safe, it was things like a solid uninterrupted education. It was staying with my family. It was the things that most of us take for granted, but so many people deal with and live with and live with the trauma with.

Meena Singh:

And then I guess the third thing, this is really tough because now I've just got to choose one, but all of this has to happen in a much broader context of understanding and truly coming to terms with Australia's history and how Aboriginal people have been forced to live, I guess, a parallel life alongside non Aboriginal people and to the expense of the advancement and the benefit of non Aboriginal people.

Meena Singh:

This country is built on stolen Aboriginal land and we need to understand what that means from a historical perspective, but also the impacts now. And truly have, I'm going to say truth-telling because in Victoria, we've obviously had announced at the URAC Justice Commission, which is focused on justice and truth telling, see how we properly implement that. But that requires real leadership from the top, but really requires vision and empathy and understanding.

Dr. Susan Carland:

Jacinta Elston discusses the impacts of the carceral system on indigenous communities and what she's learned from years of working in policy and research with state and federal governments and on the ground in community organisations about what changes are needed to shift the needle on this complex issue.

Jacinta Elston:

How do we change this as a society? I know there's lots of work going on in school curriculum and in schools around the country. Some of it is a little bit tokenistic and reconciliation plans and things like that. I mean, I'm a huge fan of the role that they play, but you cannot hang everything off reconciliation plans. And having a welcome to country here and there and other things. We've got huge and significant issues with out-of-home care for indigenous kids. Those kids who go into the system often end up staying in systems. They certainly leave those systems vulnerable. They're likely to leave those systems with vulnerable mental health issues. If you go into your adult hood with vulnerable mental health, we know that that predisposes you to mental health issues across your life.

Jacinta Elston:

What does it mean when we take a child away from a family? And again, it's National Reconciliation Week this week, we've still got Aboriginal kids getting taken away. The National Reconciliation Week and National Sorry Day yesterday, that is about recognition of the bringing them home report. And yet we've got more kids in out-of-home care than we probably did then. We would have had kids getting taken away yesterday on National Sorry Day. Those kids were watched by other kids who saw them be taking away from their families. You know what I'm thinking, particularly of a family in Queensland right now who a couple of days ago had children taken away and we've seen it streaming on social media. What does it mean for the black-white relationships between that community and the police, or the non-indigenous workers who accompanied the police, who came from the department of children and other agencies to take those kids away?

Jacinta Elston:

How much respect does anybody in that community now have for white people? They didn't have it before because this has been a generational thing. And so, this is our grandfathers, our grandmothers, I wanted to, I did the count recently. I think I would have to go back eight generations in my family, in my Aboriginal family I'd have to go back eight generations to find an Aboriginal person that hasn't been traumatised at the hands of the settler. And that's what we're dealing with. It does require systematic change, and it does require us to have the bravery. And how do we get that narrative out into the community so there is support?

Dr. Susan Carland:

There are also issues, and we see that all around Australia about bail and that this is the bail laws have been tightened across all jurisdictions. Criminologist Dr. Kate Burns, says issues surrounding our bail laws that need to be addressed. These laws, she says are having an impact on women and children.

Dr. Kate Burns:

This is meaning that lots of people are remanded for many, for a very, very long time. And sometimes they're reminded for longer than they would have been sentenced anyway.

Dr. Susan Carland:

So, remand is when you've been charged with something, but you're waiting for your court date to come up. And so, you have to stay in prison waiting for your court date. So, you haven't actually been convicted of anything yet.

Dr. Kate Burns:

Exactly.

Dr. Susan Carland:

And you may be there for months.

Dr. Kate Burns:

Yes. You can be there for months or years.

Dr. Susan Carland:

And then you could be found innocent.

Dr. Kate Burns:

Yes, correct. And so, there is an issue about that and we know that a recent death in custody in Victoria was a woman that was on remand. So, there is an issue there and that, and so bail laws could be changed. Because we know over the past few years, bail laws have been tightened. And part of that was in response to some particular events that happened in the community and it was about stopping violent men offending when they're on bail. But what's happened is that the people that it's impacting, mostly it's mostly women, low level offending. And so, indigenous women are the fastest growing population in prison all over Australia.

Dr. Susan Carland:

If nothing else, if we just think about the economic costs of incarceration and recidivism, which is when people are repeat offenders, if we just look at this economically, why governments wouldn't want to address this?

Dr. Kate Burns:

Yes. And I think that's a really good question. It's interesting because the amount of money that we as a nation spend on prisons is phenomenal. It is absolutely huge. There has been a big push overseas, actually. And I think particularly in jurisdictions like the US and the UK, which is looking at concepts like justice reinvestment, which is when you take a portion of the corrections budget and you reinvest it into communities that have high incarceration rates. Because as we discussed earlier, the solutions to incarceration are in healthcare and housing and all these other issues. And so, and it, actually, these other jurisdictions have shown that the economic argument does work quite well. When you can say, you're spending this much on prisons. If you take a tiny bit of that invest it in the community, you can actually start making change.

Dr. Kate Burns:

There's been some programmes in Australia that have used this approach, and it is looking quite promising in some places. There is also just the issue of making sure that it is purely community led because there is a risk that these types of programmes, although they're within the community, they can further [inaudible 00:14:52] say police in the lives of the community, but it is just, but it is a promising concept that perhaps might show that actually this economic argument is saying prisons cost so much and actually don't make the community safer.

Dr. Kate Burns:

So, let's take just a small portion of that and put it into the communities and just see what kind of results we have. We know prisons don't work. We know that it does not stop re-offending. We know that it doesn't make the community safer and actually causes a lot of harm and trauma. So, how do we, instead of having that as the solution to offending, look to the communities and invest in communities? So, actually we don't need to be then having this, the end result.

Dr. Susan Carland:

Can you tell us about a community led initiative that you know of that seems to be producing some really positive results?

Dr. Kate Burns:

Yes. So, I think we're seeing, I mean, the all over Australia, we're seeing these types of programmes and they are community led. And so, a lot of them actually would do really well with some extra funding, but we're seeing, so for example, in Alice Springs, there's a programme for young kids to get them into skateboarding.

Dr. Kate Burns:

And so, to give them something to do, but also to give them really positive role models and adults around them that are sort of showing how you can have fun in a really, in a physical way, in a fun way, but also that can be like a really productive way. And so, programmes like that have shown to be really good because the kids actually gives them something to do and it gives them something to strive for. And so, those sorts of programmes have actually shown, that the kids aren't sort of going out and they're not offending because they're sort of concentrated on doing these types of fun activities.

Dr. Susan Carland:

What advice would you give to someone who's sitting at home that wants to help in this regard? What should they do?

Dr. Kate Burns:

I think it's a really good question. And it's a really tough question. In some ways we need to support first nations led organisations. If for the last 30 years they have been telling us the community, what needs to be done to address this issue, so we need to be actually listening. But also as non-indigenous people, we need to sit with these uncovered conversations. And they will be uncomfortable, but through these uncomfortable conversations, change can really happen.

Dr. Susan Carland:

I asked Jacinta Elston for advice on what individuals can do to help drive systemic change. Systematic problems obviously require systematic change. How can the individual listening at home to this podcast help to participate in that without feeling like I'm just one person, what can I do?

Jacinta Elston:

Most immediate thing I think anybody could do right now this week, this month, this year, pull out your local members' email account. Send them an email and say, "I just want to let you know, I support the government doing something about reducing indigenous cut incarceration. I support the government doing something about stopping black deaths in custody. I support the government doing something about stopping the removal of Aboriginal and Torres Strait Islander kids from their families." Well, let's start there with some localised action, something that we could do. If every member of parliament, state and federally got emails this week that said, "We want to see it stopped," and it's coming from people in their jurisdictions, that might help to shift and change some of it. If all of a sudden the people in Campbell Wells started to email their local member who actually, this probably isn't even on their radar or the people in Peninsula, Mornington Shire, Brighton, [inaudible 00:19:03], wherever you are around the country, email your local member.

Jacinta Elston:

When you go to an event with a local member, that's there and you get an opportunity to sit beside them or a local leader say, "By the way, I support us doing something about this generation, this decade, not making a change that will come to light." Saying sorry, doesn't mean for Reconciliation Week, for any of this for Black Lives Matter, all of that, saying sorry is not enough. We've got to fix the system. And we've got to have the community behind us, the whole community, Australian community behind us to call for that.

Dr. Susan Carland:

Yeah, we have to do, sorry.

Jacinta Elston:

We have to do, sorry. We can't just say, sorry and then not do anything. And we've got to, as the community, as the populous who votes for our government, we've got to give the government the mandate to do it. We've got to tell them it's important to us for the sort of country that we want to be. We can't just let this be something that they themselves have their own opinion about. They're there to represent us and what we want as a society for our children, for the people that were growing into the next generations. You could apply this principle to a whole range of issues today, violence against women. What are we doing about that? Who's perpetrating the violence against women? Why do we call it violence against women? Why aren't we calling it violence perpetrated by men? Why is women even in the title of it?

Jacinta Elston:

And so, we're scapegoating by not calling it out in the way that it needs to be called out. I think so climate change, there's a whole lot of areas where our politicians won't do anything unless they think it's important to us. And that requires us to take five minutes out of our day, find the email address for your local member and send them an email. I mean, that's a starting point. There must be other things you can do, but that's a good start.

Dr. Susan Carland:

And finally, Meena Singh, on whether the media too can play a role in supporting systemic change in this area.

Meena Singh:

Yeah. I think the media has a huge role to play in terms of telling our stories in terms of supporting us to tell our stories of not just telling the stories of hardship or, but that's an important part of [inaudible 00:21:38], but seeing Aboriginal people as part of the community and seeing us as people who want the same things for our kids and our families and our futures that anyone else wants. So, we hardly ever see Aboriginal people on mainstream media, unless where, the only places we see us are an ABC or NITV or [inaudible 00:22:03], those sorts of spaces. We need to see, we need to have our stories given honour and have our history [inaudible 00:22:13] more and more. Yeah. I think media has a long way to play, yeah.

Dr. Susan Carland:

Meena Singh, thank you so much for your time today.

Meena Singh:

Thank you.

Dr. Susan Carland:

Raising the age of criminal responsibility, self-determination, listening to indigenous communities and addressing the history of systemic bias and intergenerational trauma as some important ways to address the ongoing issues surrounding indigenous incarceration in Australia. It's not an easy solution, it rarely is. But it's going to take strong political will and leadership if things are ever going to change. That concludes our second and final episode on indigenous incarceration. A big thank you to all our guests and as always more information on what we talked about today can be found in the show notes. Next week, we will be back with a brand new topic to unpack and explore on What Happens Next.