[Music]

Thank you. So my name is Elena Marchetti, I'm the deputy chair of the Queensland Sentencing Advisory Council and I'm tonight's chair. I would like to start by also acknowledging the traditional custodians of the lands upon which we're all situated, not just here but in terms of everyone who is watching this online, and extend pay my respects to Elders past and present and extend that acknowledgment to any Aboriginal and Torres Strait Islander people who might be present listening tonight or present here tonight. As Margaret has pointed out it is so important to take a cultural approach to any justice solutions. If we don't we will continue to see you know these atrocious figures. So thank you so much for coming tonight it's wonderful to see such a huge turnout although I can't really see everyone but my job now is to introduce the outstanding panel speakers tonight and what a what a fantastic panel we have to discuss current trends in sentencing of women and girls.

So I will call out each panel person and as I call out their names they will come and sit on the stage so I'll start with Thelma Schwartz [Applause].

Thelma is the principal legal officer at the Queensland Indigenous Family Violence Legal Service, an Aboriginal and Torres Strait Islander Community controlled organisation providing legal and non-legal Support Services to Aboriginal and Torres Strait Islander victims and survivors of Family Violence and sexual assault in Queensland Thelma identifies as of Torres Strait Islander heritage alongside her German Samoan and Papua New Guinean heritage. Thelma was a member of the women's Safety and Justice Taskforce.

Second I have Professor Thalia Anthony [Applause]

Thalia has joined us today from the University of Technology Sydney. Thalia's expertise is in the area of criminal justice and procedure and Aboriginal and Torres Strait Islander people in the law with a particular specialisation in sentencing and Indigenous Community Justice mechanisms. Her work has been referred to widely in law reform and policy reports and debates.

Next I have Kylie Hillard [Applause]

Kylie has been working in the legal profession since 2002 and is currently a barrister at the private bar in Queensland. Kylie works in a variety of criminal law areas including industrial manslaughter, and has a strong interest in human rights and domestic violence advocacy. She is active on various committees within the legal profession with a focus on equal opportunities.

Next Debbie Kilroy [Applause]

I don't know if Debbie needs a lot of introduction but I am going to say a bit about Debbie. Debbie established and is the CEO, as we know, of Sisters Inside a community organisation that advocates for the rights of women and girls in prison and provides a wide range of services. She also runs a law firm called Kilroy and Callaghan lawyers. Debbie has lived experience of the criminal justice system and, from the age of 13, spent over two decades in and out of women's and children's prisons. Debbie is an unapologetic abolitionist and she is widely recognised for her activism.

And finally, but certainly not least, Natalie Lewis [Applause]

Natalie was appointed commissioner for the Queensland Family and Child Commission in May 2020. Natalie is a Gamilaroi woman has a wealth of experience and knowledge from her distinguished over 20-year career in Youth Justice Child and Family Services and Aboriginal and Torres Strait Islander affairs. As Commissioner Natalie drives change to better the safety well-being and interests of children and young people, including those in the child protection system.

Thank you to all of you on behalf of the council for being here tonight to speak to us about this topic of sentencing women and girls. We have quite a bit of content to cover and so I want to just let you know that, so that we have time for questions at the end hopefully I'm hoping you'll keep your answers to any questions I asked to about three minutes.I will be keeping a bit of time so I will have to interrupt if you go on a bit too long and I do apologise in advance if I end up doing that. So I did have some other further you know information about the reports and notes but because Margaret covered it so well I'm going to skip that and go straight to questions. And to do that I'm going to sit down and join the rest of the panel members.

So as my first question to the panel, and this will be to the entire panel, but what do you think are the key drivers and we heard a little bit from Margaret McMurdo behind the increase in female incarceration? So look I'll open it up if anybody wants to go first? Anyone brave enough? Lets go Debbie.

I'm brave because I can't see anybody here.

It's great isn't it.

Before I speak I want to acknowledge the traditional owners of this land that we sit and those that are online. Here the Turrbal and Jagera People. I want to show my respects to Elders past and present we are on unseated stolen land and I think we need to keep that in the forefronts of our mind particularly in regards to what we're speaking about today because when you walk into a women's prison or a prison where they hold girls you will actually see the ongoing colonisation and genocide of the original invasion of this country that's ongoing.As I was sitting here listening to you Margaret and, I was sitting over there listening to you, and you and John were reminiscing of your five decades 50 years in the criminal justice system. I had my eyes closed listening to you thinking about the five decades and nearly 50 years of my experience being caged and now representing women and advocating for women as a prison abolitionist that we no longer use cages. And I think the piece that's missing here tonight that needs to be addressed is the racial gendered violence of policing because, and before that about family policing, and we know that Aboriginal and Torres Strait Islander women are policed by what we call or what the government calls so-called child safety and child protection and we know really any of us that have been involved or stand beside mothers who've had their babies removed from birth particularly Aboriginal women, there's nothing safety nothing safe happening and there's no protection happening. So we do need to address the racial gendered violence of policing which also extends into those other mechanisms that the state holds within the institutions.

Great does anybody want to add anything further to that? Yes Thalia.

Okay I just, I also want to acknowledge the traditional owners and I'm from Sydney I live on Gadigal Land. My family is from Cyprus and other colonized country and I just want to say there are so many First Nations activists upon Meanjin that we really look up to in Sydney and to honor their struggles here. I just want to bring this back to sentencing because we know there's been a really significant Law and Order shift across Australia, across the Western World, in the last 30 to 50 years. And I think we can't pretend that courts have been immune to that shift. My research on sentencing over the decades have has shown an increasing tendency to apply a deficit lens, to conceptualise things like deterrence community protection even rehabilitation as possible within the confines of prison and I think this shift by the sentencing courts explains why women who are committing traffic offences who are breaching orders, who are committing minor property offences are sent to jail for short terms. That is a decision of the sentencing courts and my research across Australia of sentencing indicated a more rehabilitative approach in the community before the 1990s so I think we need to to critically analyse what what is happening there in the decisions that are being made and how we try and shift the lens in the sentencing courts,not just judicial officers also advocates, also the types of information that's brought including the problematic I would say risk tools used in pre-sentence reports. So I absolutely think that we need to look at all aspects of the criminal justice system as responsible but including in that is sentencing and I just want to say one final thing that, in my research I've seen this deficit approach this lens particularly taken to Aboriginal people and I've spoken in New South Wales to almost 200 Aboriginal women in prison. This is not to say that there's not a problem just because it's a problem for Aboriginal women it doesn't mean it works for non-aboriginal women I want to make that really clear but having spoken to almost 200 Aboriginal women what I heard over and over again was the stereotypes, the types of I guess problematising of Aboriginal women and their lives and their systems, relationships that did not conform to Western types of behaviors and I think that also needs to be critically reflected on.

Thank you. So policing, sentencing, I might actually move over to Thelma on that note and get you to highlight and maybe discuss a little bit more about this sharp rise in Aboriginal and Torres Strait Islander women you know who have been sentenced for domestic and family violence breaches and if you might just tell us what you think is behind this increase.

I think Debbie's rightfully flushed out that white elephant in the room in terms of racism. Racism and misogynistic approaches to policing. I'm unashamed in calling that out and I full on support Debbie for using that platform and to speaking to it and we're starting to see that and you know people get really uncomfortable when I put together racism and misogynistic attitudes but you're starting to see that, with respect coming out through the commission of inquiry now. This is not me just pulling this fairy dust out of the air. It's there, it's happening, it is captured with respect in the two reports that I had the pleasure of being a part of a task force and speaking to women and girls who are journeying through this system So why that's so important is that police are the gatekeepers to our criminal justice system. Now if they are taking these approaches to interacting with women and girls we are going to see them being charged and you're going to see rates of overcharging and what really concerns me and what we're seeing in the data, and I've got Natalie here who understands the data depths, and what we're seeing more generally is that when Aboriginal and Torres Strait Islander women come into contact with the criminal justice system it's not only just them we're talking about the flow on effect to their family unit. We're seeing the impact of our children being brought in to the system, we're seeing them coming into contact with the child protection system, we're seeing them being removed. They then come into contact with the Youth Justice system you have a plethora of reports on the so-called crossover children. I don't know how many times or how many more reports you need to say that there is over-representation that this is negative impacting Aboriginal and Torres Strait Islander people but I have to have to admit that I'm getting sick and tired of it given that there is substantive evidence to show, to justify reform radical reform and when people hear reform we get uncomfortable. I hear people squishing around in their chairs and it's like oh what does this mean but you have to admit the system is not working. The system is failing and it is now persecuting with respect Aboriginal and Torres Strait Islander people and I note we have the National Partnership on closing the Gap. We are not closing the Gap. What is the point of having Target 10 and 11 to see the reduction in the over-representation of Aboriginal men women and children if we're not doing anything to reform our systems. Where then, the other white elephant, domestic and family violence and sexual violence. Now I've been at a conference, a National Family Law conference this week, our Chief Justice of the Family Court called out the national shame of domestic and family violence. I echoed that and I support it. It is a national shame but more so it is nationally appalling the rights of domestic and family violence and sexual violence that Aboriginal and Torres Strait Islander women and their children are subjected to. How much more as a civilized democratic society do we have to go through. And I'm so grateful that Margaret has brought in the statements of the Uluru Statement from the Heart because this really echoes and resonates with me because Aboriginal and Torres Strait Islander people were only seen through a criminal lens. We're viewed as criminals, we're sentenced as criminals. People that don't then look and unpack at why are we coming into contact with these systems. What is going on here. We like to give band-aid approaches, that's all we do, but we don't pull back and go well what's at the heart of this? What do we really need to address?

That's great and I think it's so important to continue to highlight that Thelma, so thank you so much for raising all those issues and to both of you. Kylie, I might jump to you. From your experience as a barrister, can you tell us more about how, you know, the circumstances that have been described here currently come into play when women and girls are being sentenced?

First of all I'd like to acknowledge the traditional owners of the land on which we stand and welcome these fine women on the stage from their first Nations heritage. In respect of the sentencing process, most of my work is in the higher courts the District Court and up and my experience is that it is incredibly difficult to get traction and resonance at times with the bench to put forward those gender issues and I know, and we talk about statistics and we talk about First Nation statistics, they're often used to weaponize or to justify criminal behavior but they also aid in understanding some of the circumstances. When your client is a First Nations woman and she's a victim that has experienced domestic and family violence she's something like 32 or 34 more times more likely to have been hospitalised as part of that domestic and family violence. She's more, she's something like three or five times more likely to have been raped or sexually assaulted. She is something like two-thirds times more likely to have been strangled or suffocated or had a head or a neck injury while she's pregnant, and she's about one-third times more likely to have a trunk injury while she's pregnant. And when you're representing a First Nations client on a sentence, first of all it is very difficult to get that information from her because she has been beaten down her whole life. She has that intergenerational trauma and it's very difficult to get that information from her and to give her a voice in that process. So when we're doing the sentences, we have to put this evidence before the court and it's very hard to get that evidence and to get that in a coherent form to get the bench to understand why she is there and why she's being charged. There also needs to be a better understanding perhaps about how systems abuse has come into play and why she might be charged with a violent offence. For example, could be because the perpetrator against her has a louder voice and is pushing the charges. So when we come to the sentence itself, typically we can put up the antecedents, we can put up the history, we can put up the information but in my experience you have to go a lot further than that and get together the evidence and it can be very difficult and very challenging to get that. And if I can give an example of a particular client that I had, she didn't happen to be a First Nations woman but she got dragged into a trafficking and she was involved in that because her partner had committed really horrific domestic and family violence upon her. She had been strangled, she'd had a gun held to her head, she had other people threatened to be killed in front of her and in that case I was able to go through her phone. I was able to get photos of bruises off her phone, I was able to get text messages where he had abused her and called her names. I was able to get telephone intercepts as part of the prosecution case and to present all of that evidence. That was initially a contested sentence, it eventually resolved in an uncontested sentence but had to go through all of this effort and all of this work to get that evidence together to present her voice in the court to explain why she's there and why she shouldn't go to jail and, fortunately for her, she didn't go to jail. So it can be very hard to to get the evidence you need because they are so traumatised, but it is also difficult to get the resonance that you need with the bench at times.

That's horrific to, you know, think about the obstacles that are placed for for people appearing in front of court. And Natalie we haven't yet really focused on girls. So our publication highlighted that the number of girls sentenced to detention had also tripled. What do you think are the drivers behind that figure or those you know those statistics?

Oh yeah well I just want to acknowledge that as a Gamilaroi you know I'm a guest on Country and I've lived on the unseated lens of the Yagura and Torrebul people for 45 years um but as important as it is for me to acknowledge where I'm from more importantly in particular in the work I do, I have to acknowledge the place I'm at and the obligation that that carries. And I just want to say that you know we talk about over-representation of Aboriginal and Torres Strait Islander children generally but girls in the child protection system and in the Youth Justice system you know we can't ignore the fact that largely that's because the social and racial inequity and injustice that has continued unabated in every single system that interacts in the lives of Aboriginal and Torres Strait Islander people and so this issue around care criminalisation, it is not a figment of the Aboriginal imagination. Our children and families come to the attention of Child Protective Services far more so than the rest of the population and we've just released some data that demonstrated that, in a particular area of Queensland, 74 per cent of those investigations resulted in an unsubstantiated finding. But what that means is that rather than get access to support or recognition and responds to the vulnerability that families might be experiencing, what they've received in return is a child protection history and surveillance for however long it took to undertake the investigation. So I think that when we look at those rates of young women, when the rates are escalating in terms of children coming to the attention of Child Protection Systems and then that flow-on effect in terms of representation in Youth Justice systems it is unsurprising. But the other thing I think is really important to acknowledge is that shift in the trajectory or those trends that you've reported on. I don't think it's a coincidence that that sharp rises coincided with some fairly regressive Youth Justice reforms in this state you know 18 months ago. So we, you know, well I'm certainly not letting people off the hook anymore with this thing about unintended consequences. We absolutely know the adverse impacts that are going to happen for Aboriginal and Torres Strait Islander  children and to continue and proceed anyway is irresponsible and it's cruel [Applause]

Thank you for that. Debbie I'm going to come back to you and it was going to be one of my original questions at the start. But remand. I want to hear your views on how that's impacting on you know keeping women and girls in prisons and detention centres.

I think I just want to say one thing. First I think language is really important and language is powerful and language is impactful and as long as we keep using the language of over-representation of Aboriginal and Torres Strait Islander women and girls, we're actually saying that some representation is okay. We need to use language of mass incarceration because they are criminalised and incarcerated by the state and by the agents of the state and that's how we need to view it. The other thing is about the language of calling women and girls offenders. Those of us that have been caged find that language really offensive and I don't care that government uses it in legislation, but I'm a human being I have a name and to call me an offender even today or an ex-offender means at any time you may feel at risk that I'm going to offend against you when I'm not. And so language is powerful and I encourage us all to actually think about the language that we use particularly for the women who are criminalised in prison that are before us either as lawyers or support workers or judicial officers because it is damaging and women and girls can take on the over responsibility of what's happened to them from all forms of violence sexual domestic physical and trauma and blame themselves. As well as blaming themselves for recidivism because recidivism is another piece of, another word language that's used that actually blames the individual when the state does not provide safe public housing in its first instance. It does not address poverty, as Margaret said today I think we're the fourth wealthiest country in the world and with the most resources but we still, the rates of poverty and houselessness is growing and growing and we're not providing that. Where people have more mental health issues and drug addictions because they're self-medicating with illegal drugs because they can't afford to go to a doctor or a specialist. So we need to think about that language and so to blame people, girls and women, when they go into prison and then nothing happens there other than more trauma and abuse and be released and expect them to be a functioning contributing member of our community is actually unfair because they come out worse than what they went in for. So we need to think about that language because it is highly damaging and you know as someone who's been criminalised what you do is punish yourself for decades and decades and believe that you're not worthy and that youse that have the professions and the jobs are actually more worthy than us and that's actually not right. We're all humans and we all deserve respect and dignity.I think the issue of remand is huge. Natalie you just spoke about, you know, the so-called reforms which I think we've just got to stop talking about reform. Seriously reform has failed, it's like seriously, this country was the reform agenda of England by bringing convicts here, right us Invaders and you know here we are now and what we've brought with that is a legal system that has impacted horrifically on First Nations people in this country. So we need to think about decarceration and uncaging people and work towards the abolition of the prison industrial complex and all its tentacles because until we do that and so remand is part of that. So remand is, you know, I see women going to court or girls going to court and even though it's not part of the bail act will be remanded in custody because they don't have an address. And police rely on all the time and prosecutors. And so then it's like well you go to prison because you don't have an address or you go to prison because you have a mental health issue you know all these so-called risk factors. And you know the biggest risk is that you won't show up because previously you've had breaches of bail conditions or failed to appear but look let's face it seriously I don't think we need to have any conditions on anyone for bail at all because you know those that are old enough. People aren't, individuals that appear in front of a Magistrates Court for example for bail, are not the Christopher Skase's of the world where they have billions of dollars and can flee the country. You know I know a young Aboriginal woman that was given bail and her bail conditions were to reside at her mother's who lived beside a police station and to report three times a week. At the same time the police reported her to the family policing system, otherwise known Child Safety, and removed her baby. And she was clearly distressed so for three weeks she actually, while she was fighting about her baby and have contact with her baby and to breastfeed her baby, she didn't walk next door to the police station to report so she was charged with nine breaches of her bail conditions and ended up in prison remanded in custody for that. I think that is just outrageous that that's what we use a prison system for. To cage a young Aboriginal woman who's had her baby removed because she was criminalised and because she didn't then walk next door to report to the police who knew exactly where she were they could have walked next door to her house but they didn't and this is the issue that we have and no one questions that. We accept that, we accept the treadmill and we've actually got to get off the treadmill and start supporting women and girls as human beings like all of us in this room, with dignity and respect.

Thank you Debbie. [Applause].Actually I'm going to go over to Thelma because that leads into a question I wanted to ask you about one of the Taskforce reports, the second report which recommended that there be amendments to section 9 of the Penalties and Sentences Act so that you know a court considers hardships you know the hardship of any sentence, so things like you know that that it would impose on a person like taking into account their gender,  sex, race, disability and parental status which is something that you know Debbie was just discussing. So could you please tell us Thelma about these recommendations and you know of course the reasons behind them, a link to what Debbie was talking about, but if you could just elaborate on that?

Correct I actually had to go back and dust off the old Penalties and Sentences Act but no I mean I had revisited it obviously in the context of the Taskforce work. We've heard and we've seen the data in this report that sentencing of women and particularly Aboriginal Torres Strait Islander women is occurring within the Magistrates Court. We're seeing that so that you've got an evidentiary basis there. So when you look at the sentencing provisions  contained in section 9 subsection 2 of the Penalties and Sentencing Act t it gives you a fairly lengthy list of sentencing guidelines and principal principles and you know, having practiced in this area for a lengthy period of time and I can understand the constraints and pressures, recommendation 126 was trying to really bring to the forefront that when you are sentencing a woman, in particular an Aboriginal and Torres Strait Islander woman, there are a number of different circumstances as to why she's come before that court that have equal weight and value in the sense, the exercise of the sentencing power that should be taken into account to reach a sentence that reflects not only the principles of denunciation and punishment but also equally important rehabilitation. And I come back to, when I went back in and dug around in there you've got section 9 subsection 2 subsection a roman numeral one, and we're talking about why sentences should be imposed and one of the key things is right there in your Penalties and Sentences Act that sentences of imprisonment should be imposed as a last resort and secondly in roman numeral 2, a sentence that allows for an offender to stay in the community is preferable. So when you're linking these things in together and you know the our Taskforce report spoke about additional Community Corrections orders. Now these types of orders are designed to assist getting at the core as to why people are coming into contact with the criminal justice system. What we're doing now is we are simply sentencing people to periods of imprisonment. They're going in. Now we expect when they go into a period of imprisonment you're going to get some rehabilitation in there, you're going to get some sort of program that's going to address the underlying causes of why you you've come in. The stark reality is, that is not happening. There are no culturally appropriate programs. There are no health-focused programs to really help people deal with the underlying causes of why they offend and then we send them out, off you go. Now we expect that there will be ongoing support in relation to their connection with corrections to keep addressing those underlying causal effects. That is not happening and you can see that if you go through and have a good old read of what we found in our Taskforce report. It is a thorough examination of how the system is completely failing. We talk about remand. You go into remand, you're sitting there, guess what, you have no access to programs it's not available to you. And short periods of imprisonment are futile. You will not get access to programs, you go on a waiting list if there are appropriate programs there you wait and by the time you may be eligible to access that you can then come out. So what are we actually doing? What are we actually doing, and I think the second report when you read it and you examine the system and you pull back your view and your lens of what needs to occur I think with respect you will find that it is a system that is not working. It is not built and made for purpose now, it's not fit for purpose now, it's a system that came into this country when European settlers came. It hasn't shifted that much and it's not affecting justice. What is justice? I get asked this all the time. Aren't we equal? Aren't we all, you know, entitled to have the same access to justice and all of this? My response is no, we're not. We're not and I've seen what's going on in that system, the system is not working. It needs to be revamped revitalised and made fit for purpose to actually assist people with what is driving them to come into contact. Get in there early because it's not working. [Applause].

Thank you, you've raised an important issue about the short sentences as well and I might switch to Thalia here because you've been doing quite extensive research on taking into account community and cultural background of an individual when they're being sentenced and how these things might improve the sentencing process and hopefully outcomes and think about this issue of three to six month sentences when you when you answer this question, but how do you think submissions or reports could contribute to understanding systemic and cultural factors related to offending. You know, and what what impact you think they might have.

Thanks Elena. So actually along with Elena and Larissa Behrendt  we've been doing a project in conjunction with Victorian Aboriginal Legal Service Five Bridges Community Justice group up here. I'm also working with Deadly Connections in New South Wales to introduce what we call Community Justice reports for First Nations people and the project arose because these organisations saw the limits in the information that the courts were receiving and saw that they tended to cast First Nations people within a risk framework that did not speak to them as Debbie said as a human being. It didn't not speak to their holistic life experience and even the experiences of their parents and grandparents and ongoing experiences of colonisation. So these reports which we've introduced in both local and the County Court in Victoria, these tell a story that is honoring their strengths that looks at pathways that are not necessarily institutional so there's a lot of talk about how we have diversion and often it's through these institutional frameworks that are not really about self-determination. So, for instance, when we did the research with the Aboriginal women in prison the kinds of things they talked about was not going into a rehab facility, but going back to children going back to family going back to Country and doing work like setting up cooking classes on the Mish or setting up a dog's schools [microphone static] to have a voice in the process and to be seen. Like Debbie I've also been sentenced and I know I absolutely felt alienated in that process. That nothing was with me, nothing really about my life story and so we try to bring this information to both tell that story but also to give options that the court might not otherwise see and to really push back on some of the racialised assumptions about First Nations people that tend to arise in the pre-sentence reports but also are fueled by, for instance, the court seeing the same people and and they tend to for instance with First Nations women make assumptions about their parenting that are harmful because they don't fit into a certain Western mold so it gives life to what their strengths are and how they contribute to community and fit into community and why it's important that they're not sent to prison which often severs those connections for a period.

Thank you Thalia. Kylie, can you see how those sorts of reports or submissions I guess made in sentencing that include, you know, discussion about the impact of systemic disadvantage discrimination you know intergenerational trauma. Can you see how that practically could impact on your work as a practitioner or the work of others of course too?

They'd be invaluable to be able to have access to those sorts of reports routinely. At present if you have a legal aid client you need to get funding to get aid for a report and you have to justify, the solicitors have to justify the purpose for getting the funding for the report. Then the second obstacle is getting a person who will actually do a legal aid report and then third finding someone who is culturally appropriate if they're from a CALD background, a cultural linguistically diverse background, and has the domestic and family violence knowledge to be able to elicit the evidence from them. So if you were able to have a properly equipped Court service report like they have for some other jurisdictions that would be quite invaluable and I also think that when we're talking about those sorts of reports I have often, for my clients have gotten the detail from them, which takes a long time to get the detail because of the trauma, and sent that to the psychologists and get your solicitor, or if they have a social worker who they work with to get that detail to send it as well. And that's something that is quite helpful as long as those kind of reports if they're available are properly resourced and equipped to get the information that they need.

Natalie, do you think that this could help with girls in the Youth Justice system, and would it be something that would I guess change the narrative to a more strengths-based approach rather than you know looking at risk factors?

I think I struggle with the notion of tinkering with a system that's flawed to somehow make it, make us believe that a couple of small tweaks is going to radically transform that experience for for girls and so I think that when we think about the things that would make a difference, yeah better assessment absolutely, more comprehensive stuff that is devoid of a cultural bias which I'm yet to come across such an assessment tool that's used in Queensland at least. And I think that if we understand those factors that are contributing to the offending so, whether it's around you know just those experiences of vulnerability, about the invisibility of girls and their experience of trauma the failure of systems around exclusion from education for example.When we understand that they're the things that are driving the contact with the criminal justice system, rather than tinker with that system I'd rather actually focus on the systems and their failures that are actually driving, I'm not sure if I'm explaining myself well, but  I just think that you know we need to think about things like decriminalising pain-based behavior. We know that for girls that is what is presenting to the courts and so I know we you know we talk about drug offences and and things like that but in the Youth Justice space experiences of homelessness, placement instability and out of home care and the notion of self-placement, those types of things are absolutely driving that contact with the statutory Youth Justice system so I think that we have to understand those behaviors for what they are they are, pain-based behaviors. And we need to stop using detention as a sort of pitiful proxy for unmet welfare needs. [Applause].

I think we really, I think need to be brave and think of like a completely different way of handling these situations and Debbie you and I were talking, this is now not in your Sister's inside hat but at the meeting the other day, about a trip you're doing soon to Hawaii and you were explaining to me that there there is a different approach over there I'd love for you to quickly describe that.

I suppose when we talk about girls I want to acknowledge Neta-Rie Mabo who's here, runs the Yangah Program at Sisters Inside. So we're funded to support girls that are arrested and put in the watch house to support them to get bail and then support them in the community to comply with their bail conditions or Youth Justice orders or traditional bail programs etc, and also go into the youth prison down here. It isn't funded for North Queensland even though we have lobbied for that and which has been highly successful because Neta-Rie and all the staff at the Yangah team are Aboriginal women and to Neta-Rie particular is trained as an Aboriginal healer and so we do a lot of that healing for the girls and they're actually never criminalised and put back into the youth prison again once they go through our program which is highly successful. Which is really important like, what we were talking about, because what are the things that I think probably the majority of people in this room listen to the ABC and probably listen to Phillip Adams but before Phillip Adams had podcast around the Hawaiian Youth Correctional Facility, I became aware that that prison no longer has any girls. They've worked for a number of years over a decade where there's no girls in that prison any longer and there's 16 boys. And what they did was, over a decade ago, the Children's Court judge and the administrator of that prison attended, like an event like this where an academic from the University of Hawaii was speaking about trauma-informed practice and healing and the judge and the administrator, the prison, took that very seriously but actually implemented those trauma-informed practices in a real way. Not in a way that we do, what we say happens here, like yesterday the family policing system didn't have trauma-informed practices today they say they have. Can I tell you they did nothing different. Seriously nothing different. And so the question about, do we have trauma-informed courts? Well hello I don't know how that's happening, I'm sure we'll do the same thing yesterday as tomorrow, but anyway it's all about marketing right. But anyway so I'm going to Hawaii, there's a symposium, so they have worked for over a decade and have had the courage and the political will as well as the judicial will and the will of those running the prison as well as NGOs, that is Aboriginal NGOs, ones in Hawaii, and to discuss about how they've got where they've got and I think it's really important because Hawaii's in the U.S, right, where they incarcerate the most people in the world and here we have a youth prison with no girls which is unheard of. So I'm going to go over there and speak to, I've already been speaking to the NGOs and the Vera Institute who has been doing the research and the data over the last decade to drive the agenda. And basically what they're doing is addressing the social issues for the girls, so getting them safe housing right, getting them all the supports that they need whether it's education, mental health drug addiction, training, jobs so that they're safe in the community and have have those resources that we all have in this room as privileged as we are, so that they're not incarcerated. And it's not rocket science right, but I suppose the issue here is, look how many of us just in this room and those online that are making a wage on the backs of those that are criminalised in prison. So you know, it's an industry. And it net widens. And so what I get worried about these reports and, Margaret's gone now, the Taskforce report, productivity commission report, all those recommendations if they ever get implemented and we know that they don't because even the RCIADIC Report with 339 recommendations still has the one here about decriminalising or repealing public drunkenness, it still hasn't happened. You know like that was 1991. So we need courage we need to actually stop doing what we're doing because it just creates more it net widens and I know that's scary for people You know we might have jobs in other ways but that's okay but at least all of us, or none of us, will be locked up. Right we've got to have a better community if people aren't criminalised and imprisoned. We must have a safer community. We've got to think of different developing different modes of safety and security not what we have now which is the racial gendered violence of policing, courts and prison and family policing. Maybe if we do that we can all retire not have jobs in other places.

So just to end, before or where's my watch here it is, I do want to hand over to the audience but does anybody else and I think that's an amazing initiative and I'm keen to hear more when you get back Debbie but does anybody else have any other radical ideas like you know? Burn it down.Before we end, in terms of you know how we can reduce women I know we've spoken a lot about you know the drivers of women coming women and girls coming into contact with the criminal justice system but is there, do any of you have any other you know really out there ideas? I mean we could yeah get a bulldozer and knock all the prisons down I don't know.

I don't know if it's out there I think maybe it's fair but then so we've been paying attention to some of the published judgments from Eoin Mac Giolla in Mount Isa and what I found so interesting about that is the clarity with which the circumstances and the failure of systems that children are entitled to receive services from are so clearly exposed. But the sadness in terms of, at the end of those judgments, is where you're seeing someone have to say well you've left me no choice so for the failure of these systems and the inability of these services, that receive and I'm talking also about NGOs, that receive a lot of funding as well in being unable to provide you know meet the basic needs of this child. That, by virtue of that failure, the only option is to remand child in custody. And I think that if there was perhaps the ability for Magistrates such as Mr Mac Giolla to order those responsible agencies and providers to demonstrate the active efforts that they've taken to meet the basic needs of a child before they're required to compensate for the failure of those services I think that would be a really cool little bit of accountability to add into the system.

Can I say something? Sure.I was going to say one of the things that, it's not particularly novel, it would be for the police to actually do their job and to protect women first and don't under police where appropriate and don't over police where inappropriate so that they actually perform. And picking up on the Mount Isa example, I'm involved with the commission of inquiry into domestic and family violence police responses and there was a PCYC police officer who gave evidence up in Mount Isa just recently and she's doing fantastic work with youth who are respondents on domestic and family violence orders. So kids as young as 13, First Nations as a respondent on a domestic and family violence order and they're running these programs to try to disengage from that cycle and to try and get the alternative so that they're not being sentenced. Because these kids are going to jail for breaches of a domestic or family violence order or end not necessarily going to jail for other offences that are to keep them alive so it's just a crazy situation but that's a positive example of when the police can actually do something outside of the usual box.

Thelma, Thalia, any radical ideas?

I think Debbie's probably really hit the nail here. We're talking about courage and we're talking about will. Courage and will. What is the point in Queensland of having a Human Rights Act that recognises the inherent dignity and worth of each single individual in this state if you do not have then the courage and the will to change systems that are clearly not working. They are clearly not fit for purpose. They are clearly disproportionately impacting on a certain group of people. Come on now. Something's got to give and I think, and I believe, I truly believe, that there are people here who can see how broken this system is. How things are failing, I mean what's that definition of madness people? Doing the same thing over and over again and expecting a different result. Peel your eyelids open and have a look at it and have the courage and will to affect change that brings about different results for people, brings around different impacts especially for Aboriginal Torres Strait Islander people. This is our communities as well, we have hopes and dreams and values that are as common and you know connected to yours. We want the same things and I think and probably I'm a little bit more hopeful than I should be, I think that there will be change. I expect and I hope that those recommendations that my TaskForce members and Margaret spoke to that they are picked up and courageously implemented to see the change that we all need and we deserve in this state. That's what I hope, that's my radical plan and you know radical does not mean it's scary. Radical means that we are evolving and we are moving forward [Applause].

I think hope is very important.I'll follow-on from Thelma just in terms of radical imaginings of a society where women are not imprisoned I think we really have to build on some of the momentum around treaty making that's happening here and elsewhere across the country and in the Northern Territory for example they are suggesting that in some communities they hand over jurisdiction including criminal jurisdiction to First Nations to Aboriginal law holders and among these lawholders are women and so we start thinking about First Nations women as those Sovereign law holders, and stop thinking about the role of the state and its cultural systems in controlling these women. And in doing so we lose so much of that potential for First Nations women to lead and I think we have to really try and flip the paradigm rather than just just continue to tweak it. I think there's always so much we can learn when we take a cultural lens to something so yeah definitely.

So I think this brings me to questions from the audience but I can't see anyone. Oh that's better now, I can see everyone. We've got some microphones that are being handed around, if you want to just put up your hand and if you have any questions? Everyone's gone shy. Was that a hand? No.Are there any questions from people, oh look there's one at the back thank you [Laughter]

This question is for Debbie Kilroy. So maybe not a question more of a statement, so in things that were discussed tonight anecdotally there's effectively a weaning down or a lack of rehabilitation programs for anyone on remand, women or children. So how how is that best addressed, who's accountable for that, is it the correctional centres, is it the government, how is it to be resourced? I understood through the work of Sisters Inside which was fantastic in terms of I know the women and clients that I've had over the years they're closely linked,and benefit from the assistance that is offered through Sisters Inside but outside of that there's not, there once for example was job skill training, I had a client that once learned how to be on her way to becoming a hairdresser. That program then was no longer available. So what once was like positive steps to skilling our clients for a better pathway when they were released had just gone cold so then on sentencing just through the the lack of the waiting list, the lack of availability of courses, there's no recognition even though your client well I believe there's no significant recognition where your clients are trying to get into courses to make something better for themselves, they can't get into it so they're turning up to a sentence proceeding without the benefit of saying he hoped, he or she hoped to get into this course. It's not as good as having done the course. So who becomes accountable? Where does that fit into their recommendations if we're still to have the correctional centres in some shape or form? So who becomes responsible for that, how does that fit into all the recommendations?

Well I think there's a number of recommendations there, we have a number of reports to fund those types of programs but I mean so it's up to the government to allocate the funding or the individual ministers and their bureaucracies but they're just not doing it because of the mass incarceration of women and girls for example. We see then overcrowding right, and so even to the point where the parole board now acknowledges that and knows that not everyone applying for parole when they're eligible will be able to do a program because it's not there. So it's not the prison system, you know I know people are here have spoken about how the system's failing. I don't believe it's failing it's working exactly how it's designed to work. Exactly, right, and that's where we got to do some wedging. But I mean it's interesting just in the Taskforce report, I think it's section, I think it's recommendations are 111 and 113. it talks about bail programs for women. Now we have run Supreme Court bail for women since the 2000s, we eventually got funded by Corrective Services about five years ago and we have had, we appear as a friend of the court in the Supreme Court for Supreme Court bail applications. We support the women in their applications, fundamentally it's a self-rep application but we'll find housing, find the services they need, do the affidavits and then I will appear usually as a friend of the court, not as a lawyer because I'm not their lawyer in the substantive matters, to apply for Supreme Court bail. We've been 100 successful so that's been funded for about five years Caxton where Dan, a colleague at QSAC, is on the board there of Caxton Legal Service, were funded for the men. For the same, they run it a bit different to us, but same same. We were both, the bail programs were for example externally evaluated last year, a while ago anyway, and because Sisters Inside Supreme Court bail program is so successful because we get have got 100 percent women out when we apply for the bail, assist the women to apply for bail, has now been, will not be refunded at the end of this month. Because it's successful. Now the two recommendations in the Taskforce report talks about ongoing bail programs. Now I know that Caxton's been doing some work behind the scenes, I have been talking internally we haven't made it public, well I just did, I don't care, two weeks. In two weeks, we have to let all our staff go. Like having a highly successful program that gets people out of prison, and sometimes Supreme Court Justices say oh my God I don't even know why they're in prison. Do you know what I mean? Like seriously, because of the low level types of offending, the survival offences. That's a program that works, so then we have a, you know, Corrective Services decides that it'll no longer be funded because it's too successful. Like it's just mind-boggling, seriously I don't know who's running this place. Like I think you said, tell me, it's like I'm doing the same thing over and over again. But I mean you know I think that that's going to have a huge impact because now women know that it's not going to be ongoing funding, even though that we're going to continue it ourselves with no funding and try to do the best like we used to. But I mean women are going to make applications themselves to the court and I'm already getting called in by Supreme Court Justices to please come and assist you know they ask DPP, DPP rings me I go there and they go can you find a rehab, I go back I get staff that are engaged in other areas of support and service for women, and and we have to add on and so we're just working around the clock so that we actually get women out of prison. It is appalling, I've been involved in research that has looked at both your work and Caxton's work and and it's mind-boggling why those two programs would be defunded. So yeah it's two weeks away, we're done. Yeah and that will have, and then an impact again on the topic we're talking about tonight. Absolutely I raised the Taskforce recommendations with Corrective Services and they said oh no that's not up to us that's up to that other Department, Attorney-General. Yeah it's the siloed thinking, it's not about women and girls it really isn't at the end of the day, government not interested.

I'll check with Victoria who's somewhere at the back who's meant to let us know if there's any questions from anyone online. So we've got three questions, it's the voice of God here. The first question is from Panita who's asking about the role of DV specialist judges in courts.Would anyone like to tackle that?

Kylie yes. Kylie's put up a hand to answer.

I think I mean there's domestic and family violence specialist courts but that's limited to the Magistrates Court but there are no specialists domestic and family violence District or Supreme or Court of Appeal and if there was that level of engagement it would make a remarkable difference. Because I wouldn't, for example on sentence, have to step through so many hoops to satisfy the judge of the evidentiary basis that domestic and family violence does in fact exist. It shouldn't be contested on sentence and that's why this woman is here being sentenced because everything that's happened to her has caused this to come about. I think it would be wonderful to have that and I would imagine that there would be quite a number of Judges who would be quite willing to be engaged with that because there's a lot of support from a number of different levels of the bench for that kind of work.

Thank you Kylie for tackling that one. Victoria other ones? So we also have a question from Jones, apologies if that's your last name, they're asking wouldn't a start to reduction of girls in detention be to the raise the age of criminal responsibility to 14 in accordance with the UN recommendation. Has this been considered?

It's a great question. Didn't we say the failure of the private members bill on that particular point this week, so let's have a look at it, it's out there. You've got Attorney-Generals from different states and the Commonwealth engaging in this discussion around raising the age of criminal responsibility for young people but still no action and you know, what I'm really tired of the talk, I want to see action. How many reports do we need to do? And there are so many reports when we're looking at the brain development of young people and linking it to criminal responsibility. We are going to be, and I don't like being a pessimist, but I don't want to be back here in another 10 years and we're still debating this because it's it's nonsensical. These are things that should be occurring and then hopefully, this comes back to political will and courage and a recognition of some of these other things that don't belong with respect in the criminal justice system, they belong outside when we're looking at addressing some of these underlying social drivers underlying issues.

So true and you do wonder why people would think that children who are so young could really understand you know what they're doing and also be held responsible for things that are a product of many other factors in their lives I'm sure, so yeah.

I think one of the things just on that point, one of the things that I always remember was a sentence I conducted for a young person, no older than 10 years of age, who was charged in Aurukun the offence of stealing. Now it wasn't the UTAG, the unauthorized taking of shop goods and they charged that young person 11 with stealing and what he'd stolen from the store was a loaf of bread, peanut butter and some Vegemite. And there was no cautioning that was administered, nothing like that and it came through into the courtroom. And when I spoke to him that young person said to me, you know what Auntie I was hungry. And Mum and Dad, this was when there was no AMP in Aurukun, Mum and dad there's no money it's all gone on the booze and I got the little ones. Now that was one of the first sentences I did in that Aurukun court and that almost brought me to tears but there was this young child. And there was another reason why this young person had done what they had done, and this was a basic human need that they were addressing. No cautioning, no UTAG and you know the Magistrate administered the caution from the bench and then it was what are the social services that now need to come in I will always be stuck with that memory and I am a proponent for raising that age when I look at these things and these are not uncommon stories that I've experienced my criminal law practitioner life. Why do we accept that?

Such a powerful story Thelma and I think it's clearly stayed in your mind and I think it's probably one that's going to stay in our mind too because that's just a terrible situation and should never have happened. I might wrap this up because I think we've gone slightly over time but not too much, soI think it's time for me to say my thank you's to everyone who's contributed to this event tonight. We're very grateful to Margaret McMurdo, our keynote speaker and also to the members of the panel. Could you please give them a round of applause? [Applause]

Thank you so much for sharing your insights, your knowledge but also your experiences. I hope everyone here has taken on board what you've said and hopefully, I have hope, I think hope is good so hopefully we might see some change.

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