I know our criminal justice system inside out, and it is being misused

This article first appeared in The Guardian.

We need to rethink a system that is funnelling people into harmful prisons as the default response

I have seen many families ripped apart, communities drained of men, women and children and lives turned upside down by criminal justice systems geared towards locking people up. These men, women and children are often the most vulnerable in our community and they are disproportionately Aboriginal and Torres Strait Islander peoples.

I have worked as both a crown prosecutor and criminal defence lawyer in some of the most remote areas of the Northern Territory and Western Australia. I have seen our criminal justice system inside out and from both sides of the bar table, and I know it is being grossly overused and misused.

Don’t get me wrong – where the seriousness of the offending and risk to the public are significant, secure facilities are needed. But we desperately need to rethink a system that is funnelling people into harmful prisons as the default response.

Prisons are over-crowded, understaffed, and lack culturally appropriate and responsive supports and services tailored to the needs of Aboriginal and Torres Strait Islander people.

Soaring prison numbers are fuelled by unjust laws and policies – punitive bail laws, mandatory sentencing, and imprisonment for low level and poverty offences. The preventable and tragic death of Ms Dhu, who died in police custody after being arrested for unpaid fines, is a clear example of punitive laws and policing practices that are dangerous and compound inequality.

Our criminal justice system must do better – particularly when it comes to Aboriginal and Torres Strait Islander people.

Aboriginal and Torres Strait Islander people comprise just 2% of the national population. Yet 28% of the population behind bars are Aboriginal and Torres Strait Islander, and this national shame is only set to worsen.

We all want our communities to be harmonious and healthy. For Aboriginal and Torres Strait Islander people, an understanding and recognition of our cultural identity and place are essential to this.

Rather than merely focussing on punishment, our criminal justice systems need to be geared to assisting people. Our governments need to make our justice systems more inclusive, adaptive and offer alternative responses that can ensure just and fair outcomes.

I have seen the lders building on the strength of their law and culture to reconnect offenders with family and community

A number of culturally safe and appropriate responses already exist. These are the Aboriginal-led solutions that our governments need to back.

In my time as a youth lawyer, I was in awe of the amazing and tireless work of staff at BushMob, a substance misuse program for children and young people operating out of Alice Springs. They help foster internal worth and value and life-skills in the children they support. This organisation and their multi-disciplinary staff have been instrumental in assisting many children grappling with drug or alcohol issues to reclaim their lives and forge a path to a better future.

In many Aboriginal communities, there are a number of community leaders and respected elders who play a role in resolving community disputes and breaches of the law. In my time as a criminal lawyer at the North Australian Aboriginal Justice Agency, I was heartened to see the reinvigoration of law and justice groups including the Kurdiji and Burnawarra in Lajamanu and Maningrida, and see them grow in capacity and influence to work alongside police and the courts.

Their involvement has ensured the criminal justice system is more accessible, relevant and responsive for their people and within their communities. In turn the police and courts have been able to operate with a cultural focus that respects the law and authority of the Elders while also sharing responsibility for the individual with their community.

In particular I have seen the elders building on the strength of their law and culture to reconnect offenders with family and community, to heal relationships and achieve fair outcomes.

The most powerful example I saw was a community wide mediation to prevent an escalation of fighting between young men. In that instance, elders were able to calm emotions and bring all the families together to resolve these issues in a peaceful and respectful manner.

I have also seen the value of their involvement in formal court process to provide personal and cultural information. In doing so, the elders are able to contextualise offending and better inform sentencing, which ensures appropriate punishment and healing for all involved.

There are examples of true justice being delivered in a way that includes and empowers Aboriginal and Torres Strait Islander people. But these examples shouldn’t just exist on the margins. It’s time for governments to embrace these approaches across the board.

Criminal justice systems geared towards locking up people upend the very foundations of justice – fairness and equality. They also fail to address the root causes of crime and do not help people learn from their mistakes.

That’s why we need alternatives to prison that build on the strengths of individuals, families, elders and communities. If the solutions are led by, and are responsive to the very people they impact, they will be effective and we will have a far fairer Australia.

Shahleena Musk is a Senior Lawyer at the Human Rights Law Centre.