Address to NSW Labor Lawyers

 

I acknowledge that we are here today on the land of the Gadigal people of the Eora Nation. I pay my respects to their Elders past, present and emerging – and extend that respect to all Aboriginal and Torres Strait Islander peoples who are with us today.

 

I also acknowledge, the many friends, former colleagues and staff of Frank Walker here tonight.

 

Frank Walker’s public life was long, varied and influential – but it was his determination to challenge injustice that defined him.

 

As Attorney-General in the Wran Government from 1976 to 1983, Frank brought an unmistakable reforming energy.

 

He also served as Minister for Aboriginal Affairs, Minister for Youth and Community Services, and later Minister for Housing and the Arts – each portfolio shaped by the same instinct: to widen opportunity, protect the vulnerable, and modernise the institutions that shaped lives.

 

When he moved to the Commonwealth Parliament as the Member for Robertson in 1990, that instinct came with him.

 

Frank held senior roles in the Keating Government, including Special Minister of State and Minister for Administrative Services.

 

But what is not as well known about Frank is that he spent key years of his early childhood growing up in a remote village in what was then the Australian-administered Territory of Papua New Guinea. He grew up surrounded by traditional village life, customary law, indigenous cultures and tribal structures very different to anything he encountered in Australia.

 

I recently had the great honour of visiting PNG, where I attended the opening of the Waigani New National Court Complex, announced new grants to tackle pressing justice issues under the Australia-PNG Law and Justice Partnership, and presented new IT equipment to the Office of the Solicitor General to assist in modernising PNG’s legal practice and improve service delivery. While PNG’s justice system continues to develop and strengthen, what struck me was the reverence Papua New Guineans have for their courts. Indeed, they are the very backbone of law and order in PNG. It’s also a timely reminder that a healthy, well-funded, and respected judiciary is essential not only for the delivery of justice, but also for building trust in institutions, the rule of law, and democracy.

 

Of course, for Frank, only a young boy at the time, these experiences undoubtedly shaped his understanding and respect for indigenous culture, including a distinctly early awareness of colonial power structures and the inequality they wrought.

 

So, it should come as no surprise that in his younger years, Frank’s passion to build a fairer, more just society first emerged. Deeply committed to advancing Aboriginal rights, Frank was active in the pivotal Freedom Rides of the 1960s and took part in protests and sit-ins against the then segregated public facilities across New South Wales.

 

He carried his passion for Aboriginal rights through his legal career and into the NSW Parliament, where, as the first Minister for Aboriginal Affairs, he championed equal rights, and in 1983 delivered the NSW Aboriginal Land Rights Act.

 

In the Second Reading Speech for the Aboriginal Land Rights Bill in 1983, he said:

 

“The Government has made a clear, unequivocal decision that land rights for Aborigines is the most fundamental initiative to be taken for the regeneration of Aboriginal culture and dignity, and at the same time laying the basis for a self-reliant and more secure economic future for our continent’s Aboriginal custodians.”

 

The Land Rights Act provided for Aboriginal communities to regain ownership of crown lands and created Aboriginal Land Councils in NSW, dismantling the system of Aboriginal Land Trusts that had until then held title to Aboriginal reserves in NSW. This was an important step forward for self-determination. Now, there are over 120 Local Aboriginal Land Councils in NSW, and more than 4,000 land claims have been granted in the forty years since the Act came into force, covering over 168,000 hectares. Frank Walker’s leadership in establishing the Aboriginal Land Rights Bill – explicitly acknowledging Aboriginal ownership of land as a legal right – is just one part of his legacy.

 

Tonight, I would like to address three topics in my current portfolio that resonate with the issues Frank Walker championed throughout his career:

 

• Economic empowerment for Indigenous Australians and Native Title,
• First Nations criminal justice and particularly youth justice; and,
• Alternatives to incarceration.

 

Land Rights and Native Title

 

Frank Walker delivered the Land Rights Act in NSW a decade before the Commonwealth Government enacted the Native Title Act in 1993. The importance of this achievement cannot be understated, with the Land Rights Act proving to be an important step on the path to Native Title, demonstrating that land rights for Indigenous Australians was not only administratively workable but politically possible. 

 

As Special Minister for State in the Keating Government, Frank Walker also played a critical role, along with Robert Tickner, in passing the Native Title Act through Federal Parliament.

 

Under the Native Title Act, more than four million square kilometres of Australia’s land mass is subject to Aboriginal and Torres Strait Islander people’s legal rights or interests. This is one of the Closing the Gap targets for which I am jointly responsible, along with the Minister for Indigenous Australians, and it is on track.

 

However, unlocking economic development opportunities from Native Title remains an ongoing project. As the Prime Minister said at Garma this year, the focus going forward is on delivery, that is: ‘Pragmatic action that brings economic development, ownership and equity to communities.’

 

In my portfolio, this includes looking at how the Native Title Act can be improved to deliver economic development.

 

The Australian Law Reform Commission is currently working on a review of the Native Title Act ‘future acts regime’, which provides the legal framework for acts or development projects that affect Native Title rights and interests. The goal of the review is to ensure that the Act continues to work fairly and efficiently to enable appropriate economic development, whilst also recognising the unique cultural, spiritual and physical relationship that Aboriginal and Torres Strait Islander people maintain with this land.

 

Issues which are being canvassed by the ALRC include potential new, more efficient pathways to validate future acts, process reforms to improve the effectiveness and fairness of agreement making, and the resourcing of the Prescribed Bodies Corporate (PBCs) who represent Native Title holders, often against large national or multi-national companies in these processes.

 

The current processes are complex and time-consuming. From an access to justice perspective, the participation of all parties in the requirements under the Act needs to be fair, with Native Title participants able to access the resources and expertise required to fully engage. 

 

I look forward to receiving the recommendations of the inquiry and to working with all stakeholders on opportunities to improve the Native Title system, to unlock the benefits of economic development for both Native Title holders and the Australian community generally.

 

First Nations Justice

 

The Commonwealth and all States and Territories have signed up to Closing the Gap targets 10 & 11, which set targets for the reduction of the over-representation of adults and young people in the criminal justice system.

 

Whilst the criminal justice system in Australia is predominantly the responsibility of State and Territory Governments, we have made this commitment together. 

 

However, collectively these targets are not on track. They are failing.

 

The disproportionate imprisonment of First Nations people is a long term and ongoing feature of our criminal justice system.

 

The 1991 Royal Commission into Aboriginal Deaths in Custody found that: "Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody. What is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community".

 

The Royal Commission found in 1991 that the degree of over-representation in police custody was twenty-nine times more than non-Indigenous people – a fact which the Royal Committed noted would not be tolerated if it occurred in the non-Aboriginal community.

 

Since the Royal Commission, a further 616 Indigenous deaths in custody have occurred, including 32 since January this year.

 

In December 2017, the ALRC’s final report on Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples found that “In 2016 around 20 in every 1,000 Aboriginal and Torres Strait Islander people were incarcerated.” The report also found that: “Incarceration rates increased 41% between 2006 and 2016, and the gap between Aboriginal and Torres Strait Islander and non-Indigenous imprisonment rates over the decade widened.”

 

More than 30 years after the Royal Commission, what has changed?

 

As at June 2024, First Nations people now comprise 36% of all prisoners, compared to 27% when the ALRC Report was undertaken.

 

First Nations youth have a rate of incarceration nearly 27 times higher than the wider population.

 

The majority of youth in detention, more than 80%, are unsentenced, with an average stay in detention of nearly two months without a sentence, and up to three months in at least one jurisdiction. More than 80% of First Nations youth in detention have also had interactions with the child protection system in the previous decade.

 

Interactions with the justice system have a sad inevitability, with nearly 65% of young First Nations people released from sentenced supervision returning to the justice system within 12 months.

 

Our rate of youth incarceration is substantially higher than comparable countries – more than double that of Canada, for example.

 

In addition to the deep social, cultural, and human impacts, the economic cost of the current system is considerable.

 

It costs an average of $3,300 a day – or about $1.2 million a year – to detain just one young person. In total, the States and Territories spend around $1 billion in recurrent expenditure on youth detention – a point which I will return to later.

 

I don’t think there is anyone in this room who believes that this is money well spent.

 

As I am often asked in Question Time, are there alternative approaches?

 

Well thank you for asking.

 

My Department is examining the data in this area and is considering further options to evaluate the economic case for early support programs in comparison with the current approaches – which are failing to address the rate of incarceration for Aboriginal and Torres Strait Islander Australians.

 

In 2017, the ALRC also made a number of recommendations which are still pertinent today and focus on early diversionary options such as Justice Reinvestment and Bail reform.

 

Justice Reinvestment

 

With respect to Justice Reinvestment, the ALRC recommendation was:

 

“Commonwealth, state and territory governments should provide support for the establishment of an independent justice reinvestment body. The purpose of the body should be to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration, and to provide expertise on the implementation of justice reinvestment.”

 

In 2021, while in opposition, Labor committed to expanding justice re-investment to tackle the root causes of crime and recidivism. This included a commitment for up to 30 communities to establish justice reinvestment initiatives, including rehabilitation services, family or domestic violence support, homelessness support and school retention initiatives.

 

In 2023, under my excellent predecessor and colleague Mark Dreyfus KC, MP, the Commonwealth took action on this recommendation, opening a program that to date has funded 28 Justice Reinvestment initiatives.

 

Justice reinvestment projects are not just the purview of progressive Governments. Looking across the Pacific, some of the most conservative and fiscally minded US states – long known for being tough on crime – have embraced justice reinvestment. Why? It works.

 

In Texas, for example, justice reinvestment projects have helped reduce the growth of the prison population and improve public safety outcomes – while also saving Texan taxpayers an estimated $1.6 billion in avoided prison costs over a decade.

 

In the years following Georgia’s first use of the Justice Reinvestment Initiative, the state experienced a 6 per cent decrease in its prison population, averting over $250 million in corrections costs, and allowing policy makers to reinvest $57 million into initiatives to reduce recidivism and support job placement.

 

In Australia, previous longer-running examples of Justice Reinvestment projects such as the Maranguka Project in Bourke showed, after an evaluation by KPMG, a five-to-one benefit cost ratio, including a 23 per cent reduction in police-recorded incidences of domestic violence, and a 31 per cent increase in year 12 retention rates.

 

I also recognise the efforts of philanthropic organisations, particularly the Paul Ramsay Foundation, which has invested over $50 million in over 30 culturally appropriate, community-based projects since 2021.

 

These are long term projects which require ongoing commitment and require generational changes, acknowledging the current strong correlation between the out-of-home care system, the youth justice system, and the adult prison system.

 

The Albanese Government has committed to the sustainability of the Justice Reinvestment Program, building on the $79 million we announced in 2022, with $20 million per year in ongoing funding to be invested to achieve long term solutions within communities.

 

We are also committed to developing a national ecosystem for the ongoing development of Justice Reinvestment projects, led by First Nations communities, and have committed a further $12.5m over four years to build capacity and advocate for the sector through the establishment of a National Justice Reinvestment Unit.

 

There are some early examples of the projects delivering positive benefits.

 

In Western Australia, the Aboriginal Legal Service of Western Australia is the lead agency, along with Wadjak Northside, Stephen Michael Foundation and Hope Community Services, delivering the 'Old Ways New Ways' project.

 

This is providing wrap around support including youth engagement, education, cultural activities, social and emotional wellbeing, and pathways to training and employment.

 

They told us about one of their recent program graduates, a 17-year-old girl who had a Juvenile Justice Team referral, a criminal justice system history, and a disrupted educational record. 

 

Through the Old Ways, New Ways program, she received case management support, including job provider training programs and other practical assistance, such as help with setting up a public transport card, ID, a Medicare card, bank account and a tax file number.  She was also supported through face-to-face activity days with ongoing mentoring and support. She was commended for her engagement and maturity and since graduating at 18 has gone onto casual employment and has had no further offences.

 

This may seem like providing the most basic assistance, but it shows how much we take for granted the basic skills necessary to even think about getting a job. Young offenders often have unstable home environments and very little support – heightening the barriers for lawful reintegration with society.  And when you examine the nature of offences that drive interaction with police, in some jurisdictions the primary category of initial offences is fare evasion. That’s why programs like Old Ways, New Ways are essential – they provide the wrap around support for young people, to ensure they have the skills and basic requirements to live and work in our society. 

 

In the Northern Territory, the Anindilyakwa [An-un-dill-ee-ack-wa] Peacemaker Program is a community-led, culturally grounded initiative delivered by the Groote Archipelago Community Justice Group (CJG).

 

The appointed Peacemakers draw on traditional knowledge and leadership to apply mediation practices, to provide a safer environment for the parties to come together to resolve disputes.

 

Currently, 29 registered Peacemakers operate throughout the Groote Archipelago, spanning the 14 clans of the region. These individuals are deeply respected within their communities and often serve as the first responders when incidents arise.

 

Peacemakers bring a wealth of cultural insight and authority to their roles. The program includes individuals with lived experience of the criminal justice system, sharing their stories with young people and encouraging them to avoid the path they walked.

 

In Townsville, Elders for Change are delivering the Justice our Way program, taking a whole-of-community approach to justice reform – working together to develop solutions that reduce overrepresentation in the justice system and strengthen connection, wellbeing, and healing across families, youth, men, and women.

 

The program includes mobilising people post release from the prison system in leading change, contributing to program design, policy consultation, social research, and operational support, including coordinating Elders’ visits for incarcerated men at Townsville Correctional Complex, and facilitating Men’s Behaviour Change Program.

 

The program also supports women and young people, advocating for mothers in custody, and helping them to maintain family and community connections while navigating the justice and child safety systems.

 

These are just a few examples of alternative approaches that are being developed and implemented right now. 

 

Bail and Remand

 

This brings me to the second recommendation of the ALRC which is on the agenda for the Standing Council of Attorneys-General (SCAG) this week – support for people on Bail and Remand.

 

As mentioned, the Productivity Commission’s latest Closing the Gap update shows that outcomes for adult incarceration and youth detention continue to worsen.

 

I want to make it crystal clear: all Australians have the right to live in safe communities, and the first responsibility of government is to ensure that is the case.

 

But more can be done to address the drivers of contact with the justice system.

 

The commitment by the Commonwealth, States and Territories to Close the Gap is written into the National Access to Justice Partnership under which the Commonwealth has committed a record $3.9 billion over five years for legal services, including $838 million for Aboriginal and Torres Strait Islander Legal Services. This represents an increase of $326 million or 64% from the previous agreement.

 

I recognise the concern expressed by many stakeholders on the impact of some State and Territory policies on the rates of youth incarceration.

 

As I said earlier, it is a fact that under our federated system of Government, States and Territories are primarily responsible for criminal justice policy.

 

However, it is also a fact that the Commonwealth has a leadership role to protect the rights of our most vulnerable people, which is why this is on the SCAG agenda. The Commonwealth, via the taxpayers of Australia, also predominantly fund Aboriginal legal services, which spend most of their resources on criminal law matters.

 

In February 2024, SCAG asked the Justice Policy Partnership (JPP), which includes representatives of every jurisdiction and Aboriginal and Torres Strait Islander peak organisations and justice experts, to consider and provide advice on bail and remand reform in the context of addressing their over‑representation in the criminal justice system.

 

The JPP informed further consideration by a SCAG working group, again comprising representatives of all jurisdictions, and representatives of Aboriginal and Torres Strait Islander Legal Services (ATSILS). That working group has now delivered its report to Ministers, and I want to take a moment to highlight some of the key issues it raises.

 

There are several factors contributing to the rising number of First Nations people held on remand, some of which are related to the justice system, and some which reflect unaddressed broader social issues.

 

To begin with, there are limited diversionary options, particularly for children, which has contributed to increased rates of remand.

 

In fact, of all Aboriginal and Torres Strait Islander young people in detention nationally, around 83% were unsentenced on remand. This means they have usually been denied bail and are waiting in detention for a court hearing. In many jurisdictions, young people on remand, often for extended periods of time, are unable to access support services like drug and alcohol counselling, or access to education, which, ironically, they may be able to access after being sentenced.

 

Local conditions, including access to housing, can be a significant factor in access to bail. For people experiencing family and domestic violence, bail conditions may also result in unsafe situations, such as being required to return to homes where violence has occurred due to lack of alternative housing.

 

As I said, everybody agrees that community safety is the number one priority of every Government.

 

However, I have implored my colleagues to focus on what is in the long-term interests to build safer communities.

 

Supporting Justice Reinvestment and investing in alternative and co-responder models, can help to divert young people in trouble from formal entanglement with the criminal justice system by providing early support, for example with mental health or substance abuse issues.

 

This will also have a direct impact on reducing deaths in custody. Over half of First Nations deaths in prison custody in 2023-24 were of unsentenced prisoners. We can’t keep relying on the same approach.

 

There is a need for culturally appropriate and therapeutic bail support services, and alternative and co‑responder models that will have a sustained impact on Closing the Gap targets.

 

NSW has always put community safety first. However, this is not incompatible with early support and diversionary measures.

 

I commend the work that the NSW Government is undertaking, through my colleague Attorney-General Michael Daley. I welcome the announcement NSW made last week to deliver more than $23 million in targeted funding to address youth crime, improve community safety to break the cycle of reoffending among young people on bail, and prevent at-risk youth from entering the justice system in the first place. As I indicated earlier, once a person makes contact with the justice system, it rarely marks a chapter but starts a lifelong cycle that is exceedingly difficult to escape.

 

I also welcome Queensland’s recent announcement of further funding for justice reinvestment projects, and I hope we can build on these foundations with all of the States and Territories.

 

Successful alternative and co‑responder models

 

An additional approach I will be discussing with my State and Territory colleagues will be on making further investments in alternative and co-responder models, where a person’s first interaction with authority is not just with a police officer, but with someone who can deal with their health issues, including mental health.

 

This is not a simple issue, but there are models we can build on.

 

In New South Wales, co‑responder models such as the Police, Ambulance and Clinical Early Response (PACER) teams, which comprise police officers and mental health workers, have shown that these approaches can prevent unnecessary escalation with people in crisis which would otherwise result in custodial outcomes.

 

Other examples include the South Australian Mental Health Co‑Responder Program which pairs mental health experts with police officers when responding to Triple Zero calls with a mental health element, diverting people from Emergency Departments presentations, helping de-escalate the initial interactions and improve community safety.

 

We need to learn from and build on the success of these models.

 

The Senate Legal and Constitutional Affairs References Committee has recently commenced an inquiry into Australia’s youth justice and incarceration system, and are currently accepting submissions until December. The terms of reference for the inquiry include seeking evidence of effective alternative approaches to incarceration for young people, such as diversionary programs.

 

I urge people with expertise or lived experience of the youth justice system, and experts here tonight, to participate in this inquiry, which I hope can gather evidence and provide the Parliament with real alternatives to the current policy trajectory Australia is on.

 

Conclusion

 

As we look forward, may we be guided by Frank Walker’s relentless drive for progress. As Attorney-General, I am committed to building a better, fairer, and more just Australia, and I will continue to work constructively alongside my State and Territory counterparts to bring this to fruition.

 

Our justice system is a foundational pillar of our society but that does not mean it is working for all Australians, particularly for First Nations people. We must remain steadfast in ensuring victims have access to justice – and see it delivered. Yet, we must also look at the evidence and put in practice measures that work to reduce crime. That’s why the Albanese Government is committed to Justice Reinvestment.

 

The Commonwealth is making significant investment and commitments across the closing the gap targets, and in areas including housing, health, education and food security we are delivering better outcomes. But in justice we need to do better, and that’s why I will continue to implore all Governments to review the evidence and implement reforms that deliver on our youth justice commitments, protect the community and lower crime, now and over the long term.

 

I wish to once again acknowledge the pathbreaking legacy of Frank Walker. His career showed that a commitment to social justice and a focus on outcomes can deliver sustainable changes which improve the lives of our community, particularly our most vulnerable members.