Thursday, 20 June 2013
Legal and Constitutional Affairs References Committee; Report
I want to make a brief contribution to the debate. Because of the pressure of time, I do not want to detain the Senate for long, but I do want to put to the Senate the perspective of coalition senators who participated in this inquiry. Let me make it clear that the proposition that a diversion of resources and focus in our justice system away from reactively dealing with the incidents of crime and proactively transferring those resources and that focus to preventative approaches which attack rates of offending, rates of imprisonment and recidivism is a very worthwhile concept. It is almost so obvious as to be unarguable.
In that spirit, on behalf of coalition senators I want to commend the many people involved across Australia at the present time in programs to provide examples of justice reinvestment—where attempts are being made to prevent, particularly, younger Australians getting on the treadmill of crime and imprisonment. We also thank the many submitters to the inquiry, who often described such programs. We believe that much good work—particularly at the state and territory level—is being done in this space.
But in the opinion of coalition senators there were two crucial gaps with respect to the delivery of concrete outcomes from this inquiry. Firstly, there is a dearth of evidence of any particular justice reinvestment programs operating in Australia to date which are sufficiently successful to allow that paradigm—that is, the transfer of resources from the criminal justice system, the court system and our prison system into preventative programs—to be achieved. In other words, it is likely that an investment—a heavy investment and regrettably a growing investment—in both areas will be necessary for a very long time to come.
Secondly, the problem is that the criminal justice system for the most part, and the penal system in its entirety, are the responsibilities of the states and territories—not of the Commonwealth. We saw a significant problem in the Commonwealth proposing to take leadership in this area and, in effect, steering and presumably funding important new programs collecting data, coordinating activities and perhaps trialling new forms of justice reinvestment. All of that entails a role which greatly exceeds the constitutional responsibilities of the Commonwealth in this area.
The courts and the prisons are the responsibilities of the states, and it is there that the cockpit for justice reinvestment approaches need to be trialled. It is there that justice reinvestment needs to be funded to succeed. I believe that much work is being done which points to possible future success in that area. But it is premature, as the committee majority recommends, for the Commonwealth to take over responsibility in those areas, because it lacks the constitutional responsibility for doing that and it lacks, with respect, the experience of operating a criminal justice system and a prison system sufficient to give it the kind of gravity necessary to properly provide leadership in that area. The complications that are evident from the Williams case in the High Court, which made it clear that there is a problem with the executive power of the Commonwealth supporting control of the Commonwealth for a number of schemes which are not directly the constitutional responsibility of the Commonwealth, constitute one further complication in this area.
The Attorney-General's Department appeared before the inquiry and was asked whether it believed there were any outstanding programs capable of beginning this transfer of resources away from a reactive approach to a preventative approach, and, to quote the officer of the Attorney-General's Department:
I think the answer is no: there are no stellar examples about which you would say, 'Wow, if we rolled this out across the country, this would be fantastic'—out of those evaluations.
So the concept is sound. The will to explore this area further is much to be commended. But the recommendations suggesting an investment by the Commonwealth and the assumption of leadership by the Commonwealth in this area are far too premature to be supported. I seek leave to continue my remarks later.
Leave granted; debate adjourned.