First Nations communities have provided many solutions to the gross over-representation of First Nations people in the criminal legal system including alternative, evidence-based approaches and policies to incarceration and deaths in custody. What we need now is governments to take action.
What the many First Nations-led solutions have in common is that they are fundamentally self-determining. In other words, they recognise and respect the inherent rights of First Nations communities to make decisions about the issues facing their communities, and they grant them the power to enact these decisions in ways that are most relevant and effective for their communities.
Self-determination and self-governance are critical to First Nations communities achieving their economic, cultural and social goals, including in remedying the structural disadvantages they face in the criminal legal system. Importantly, these solutions also all operate according to First Nations conceptions of justice, responsibility and healing.
What we know from listening to First Nations Elders, experts and community members, is that a ‘one size fits all’ approach does not work, and that solutions must be place-based, flexible and holistic, allowing for the needs and priorities of individuals and communities – including children – to drive the design and delivery of programs and services.
In 2023, the Victorian Government introduced legislation to empower First Nations-controlled organisations to investigate child protection cases and connect First Nations families with support before a court order is made, as part of a wider ‘likely transfer’ of powers from the Victorian department responsible for child protection and housing to First Nations groups. Similarly, in the absence of government action, Australia’s major child and family care organisations working under the Allies for Children Coalition have recently committed to transition control of out-of-home care for Aboriginal and Torres Strait Islander children to First Nations community-controlled organisations. These are bold moves showing courageous leadership and a commitment to respecting the pivotal role of First Nations self-determination in justice issues.
Whilst there are an extraordinary number of First Nations community-led alternative approaches to the punitive colonial legal system that are taking place all over Australia, the majority of these approaches can be organised into four main categories, which we explore below:
Diversion refers to a spectrum of options – including services and programs – that can be pursued to prevent an individual from entering the criminal legal system, starting at first contact with police. Diversion is particularly powerful for children, because the earlier a child has contact with the criminal legal system, the more likely they are to reoffend. Diversions can happen at any point – pre-arrest, pre-trial, pre-sentence, post-sentence and post-release.
Diversionary options can take many forms, including but not limited to:
Research shows that alternative diversion programs generally have a greater impact on reducing recidivism (that is, the tendency of an individual to engage in further criminal activity) than formal engagement with the courts, and that diversionary programs are more likely to address and respond to the root causes of offending behaviours than participation in a criminal legal system.
Unfortunately, access to culturally responsive diversionary programs for First Nations children in particular remains a challenge. First Nations children do not receive the benefit of diversion at the same rate as non-Indigenous youth, and are four times less likely to receive a police caution than non-Indigenous children. Where they do exist, many diversion programs tend to be Eurocentric in nature, with better resourcing and sustainable funding needed for First Nations-led and designed diversionary programs.
Deadly Young Warriors is a First Nations-led, holistic approach aimed at supporting and diverting First Nations young people aged 7-18 who are at risk of criminal legal system involvement. The program’s aim is to improve mental health and risky behaviours of First Nations children coming into contact with the criminal legal system by delivering culturally-informed early intervention and prevention programs. Through school and holiday programs, the program engages with First Nations families and communities to better understand a child’s needs, often focusing on strengthening their cultural identity and connection with their community and Country. Learn More.
Developed as a community-led partnership between the Dharriwaa Elders Group and the University of New South Wales, Yuwaya Ngarri-ii seeks to improve the wellbeing, social and physical environment of First Nations people in Walgett, NSW. The partnership aims to develop a holistic, place-based diversionary program to reduce First Nations peoples’ contact with the criminal legal system by investing in alternate life pathways based on strengths-based, holistic, and community-led initiatives.The program understands that reducing contact with the legal system is not just about improving police and court use of diversionary mechanisms, but also through strategies that improve housing, education and employment as well as reducing the labelling effect of fines and criminal legal system involvement. Yuwaya Ngarri-ii has led to overall increases in diversions and reductions in criminal charges and court cases in the Walgett community. Learn More.
Justice reinvestment is a holistic, place-based and community-led process that redirects government funding from the criminal legal system to initiatives that are designed to respond to community aspirations and deliver self-determined solutions. This often looks like a redirection of resources away from incarceration and toward early intervention, prevention and rehabilitation. The flexible, holistic and localised nature of justice reinvestment means that there is not one specific and fixed definition of what justice reinvestment is or what a justice reinvestment project looks like. Instead, justice reinvestment can be thought of as an active process and approach that takes into account an array of strategies reflecting local contexts, circumstances, priorities and needs.
While the way justice reinvestment looks will differ from community to community, all justice reinvestment approaches have the following things in common:
The Maranguka Justice Reinvestment program in Bourke is a groundbreaking First Nations-led place-based model of justice reinvestment. Prior to the design and delivery of the program, Bourke had a disproportionately high rate of crime for over two decades, with the highest rate of youth crime and domestic violence in NSW.
Maranguka is a collaboration between the Bourke Tribal Council, Just Reinvest NSW and the community of Bourke. It takes a ‘life-course’ approach that identifies and addresses specific issues likely to push First Nations people in Bourke into the criminal legal system, from a child’s earliest years through to adulthood. After a long time spent workshopping ideas to reduce criminal legal system involvement and improve community safety – together with data on a young person’s passage through the criminal justice system in Bourke, along with their experiences in other areas of their lives – the local Bourke community, including Elders and local service providers, implemented a number of cross-sector initiatives designed to interrupt a person’s passage into the criminal legal system and to create long term systems change. This includes three ‘justice’ circuit breakers that address breaches of bail, outstanding warrants and the need for a learner driver program in Bourke.
For decades, First Nations communities, organisations and service providers have designed and delivered alternatives to policing and mainstream court processes, including more culturally appropriate forms of sentencing. Importantly, these alternatives operate in more culturally safe and responsive ways, including responding to challenging behaviour and ‘wrongdoing’ in restorative (as opposed to retributive) ways that are consistent with First Nations ways of knowing and being, including First Nations conceptions of justice. So what does restorative justice look like?
Restorative justice approaches tend to have the following things in common:
Where retributive processes tend to focus on the singular act of wrongdoing and on determining an appropriate punishment, restorative justice approaches widen the lens to include a broader range of factors and focus on cultivating responsibility, relational repair and rehabilitation.
While circle sentencing still sits within the traditional court system, it is considered an alternative sentencing tool that reflects restorative justice principles and better allows First Nations peoples and communities to address sentencing – and manage criminal legal system involvement – in a culturally appropriate way.
It brings together a circle of community members, including Elders and other respected members of communities, the individual being sentenced, criminal justice representatives (often a local Magistrate) and other support people to discuss the wrongdoing or problematic behaviour, including root causes and risk factors, in a non-adversarial and strengths-based manner. By including Elders and the wider community, circle sentencing begins to shift the power from courts to First Nations communities.
Elders and other respected people from First Nations communities often contribute cultural knowledge and expertise to allow the sentencing process to better reflect First Nations culture, values and customs. Importantly, in circle sentencing, the Magistrate must hand over proceedings to the Elders, who lead discussions and recommend the sentencing orders that they feel are most appropriate.
The Youth Koori Court (YKC) utilises a circle sentencing model and aims to reduce the over-representation of First Nations children in custody by redistributing power to the community. Through YKC, sentencing is deferred for up to 12 months in order to develop a case management plan that identifies and addresses the specific factors contributing to the child’s involvement in the legal system. Children are assigned a casework coordinator and encouraged to discuss issues with Elders and other respected community members. First Nations children participating in the YKC were 40 percent less likely to receive a juvenile correction order than if they would have gone through the Children’s Court. This demonstrates the potential of alternate, First-Nations-led initiatives in supporting young First Nations people and providing them access to a more just, culturally-sensitive legal system.
For First Nations people, and First Nations kids in particular, involvement with criminal legal systems begins from their first point of contact with police, who are often involved in racially discriminatory practices such as racial profiling. Additionally, police presence is increasingly being recognised as contributing to negative escalation and the increase of adverse outcomes. For First Nations peoples, preventing initial contact with police is paramount.
For decades, First Nations communities have developed and run community night patrols as alternatives to mainstream policing, as well as to refer individuals to support services. These night patrols use local knowledge and solutions – including culturally appropriate non-coercive intervention strategies – to increase community safety, fill service gaps, provide safe transportation and to divert First Nations people from unnecessary contact with the criminal legal system.
In 2024, the Albanese Federal Government committed $2.5 million in funding to support community safety patrols in Mparntwe/Alice Springs which are making a positive difference and are evidence that alternative approaches to policing are viable.
Prisons do not disappear social problems, they disappear human beings. Homelessness, unemployment, drug addiction, mental illness, and illiteracy are only a few of the problems that disappear from public view when the only human beings contending with them are relegated to cages.
Angela Davis
As a movement, abolition understands the many facets of the criminal legal system to be inherently violent forms of social control that target, criminalise and oppress First Nations and other racialised communities. After all, it was the early colonists who brought carceral systems to the continent now known as Australia. Rather than engaging in reform of the carceral state – including gradual change to systems of policing, prisons and other forms of incarceration and control – abolition calls for the end of these violent structures and an investment in alternatives based on community care. These calls to defund policing and abolish prisons are based on the evidence that punitive approaches do not reduce crime, do not build safer communities, and do not address the underlying social and political factors that lead people into violent cycles of incarceration.
Abolition works within the framework of transformative justice, which seeks to facilitate greater accountability, healing and engagement by investing in holistic, needs-based and community-oriented responses to harm. As both a framework and a philosophy, transformative justice looks beyond the surface level behaviour to ask what social and political conditions, including structurally violent systems, may be leading to harm and going unaddressed. In this sense, transformative justice thinking is more aligned with many First Nations worldviews, which prioritise the collective over the individual, extend responsibility and accountability outward to family, kinship networks and communities, and centre relations of care.
For me, abolition is not just about getting rid of cages, it’s about actually undoing the parts of society that continue to feed on and maintain the oppression of masses of people, mainly my people, through punishment, violence, and control.
Tabitha Lean
