Thursday, 20 June 2013
Legal and Constitutional Affairs References Committee; Report
I present the report of the Legal and Constitutional Affairs References Committee on justice reinvestment, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
That the Senate take note of the report.
I am pleased to speak about the findings of the Legal and Constitutional Affairs References Committee inquiry into the value of a justice reinvestment approach to criminal justice in Australia, both as the chair of the committee and as the legal affairs spokesperson for the Australian Greens and the initiator of this inquiry. The Senate referred this matter to the committee on 26 November last year. In moving for the inquiry, I was responding to very serious concerns throughout Australia about the growing rate of Indigenous incarceration and unsustainable spending on prisons in this country. It followed great concern amongst academics and social groups and from the Indigenous community in Australia. I will talk more about the contributions of these groups later.
I want to briefly explain the concept of justice reinvestment first. Justice reinvestment involves redirecting or reinvesting resources from prisons into programs and strategies that are proven to prevent crime from occurring in the first place. These programs and strategies are focused on the communities which have been identified as giving rise to the greatest concentration of offenders who end up in prison. Not surprisingly, these are communities where there is poverty and disadvantage. The results are less crime, safer communities and large financial savings—win, win, win. It is an old idea with a new name effectively, the idea that prevention is better than cure. But what is new is the rigour that is brought to the process, with scrupulous data collection, analysis, consultation and evaluation. It is evidence based policy, not just intuitive, and it has been proven to work.
The justice reinvestment approach originated in the United States, which had a 700 per cent increase in its prison population between 1970 and 2005. Despite the number of prisoners being locked away, people were not feeling safer. Budgets were blowing out. In the end it was the spiralling costs that focused the minds of decision makers and have helped convince both Democrats and Republicans, in a rare display of bipartisanship, to embrace the concept. Since then there have been phenomenal results in many US states, including Texas—hardly known for a warm and fuzzy approach to crime.
Australian prison statistics may not be as bad as those in the United States, but they are still alarming. Over the last 30 years, the number of people in Australian prisons has tripled. Our prison population is growing well above general population growth. Each year, our prisons across the nation cost us $3 billion just in operating costs, let alone payroll and building expenses. Add to that the costs to government through welfare, health and other services and the social costs borne by communities and families and you see that this is an immense challenge we cannot ignore.
It is in Indigenous communities that the real costs of prisons are felt most keenly. On any one day in Australia there will be almost 8,000 Aboriginal and Torres Strait Islander people in jail, at a rate 14 times higher than the rest of the population. If this rate of increase continues, the number of Indigenous adults in prison will double in just 12 years. And the situation is even worse amongst youth. Less than five per cent of young Australian people are Indigenous, but in 2011-12 almost half of all young people in detention were of Aboriginal and Torres Strait Islander background. These figures reflect a total failure of public policy and are a national shame.
Prisons will always be necessary for some, but for most offenders they are only a temporary solution to criminal behaviour. Most people leave prison and return to the same communities from which they came but often in an even more dysfunctional state than when they entered prison. Forty-four per cent of those will then be back in prison within two years. This revolving door is unproductive and expensive. As one of my colleagues on the inquiry—Senator Humphries—observed, prisons are a failed institution.
Given this context, there is a clear need for a new approach to crime and justice in Australia and there is a broad political will for change. This inquiry received 131 submissions. They were overwhelmingly in favour of a justice reinvestment model. We heard from groups as diverse as the National Congress of Australia's First Peoples, Red Cross Australia, the Australian Human Rights Commission and the Chief Magistrate in the Northern Territory. Mental health, youth, legal advocacy and church groups were also strongly represented.
The inquiry has made a number of recommendations. Before going into these in detail, I would like to bring to the Senate's attention some compelling evidence which gives an example of overincarceration and use of prisons as a first, rather than last, resort. I refer to the testimony of Mr Peter Collins, Director of Legal Services of the Aboriginal Legal Service of Western Australia, which illustrates a culture of incarceration, particularly among Indigenous youth. Mr Collins told the committee:
In 2005, I appeared for a 16-year-old boy from a place called Onslow who spent 12 days in custody for attempting to steal a $2.50 ice cream. In 2009 I appeared for a 12-year-old boy who had never been in trouble who was charged with receiving a Freddo frog worth 70c. In 2010 I appeared for a 16-year-old boy with a serious intellectual disability who had never been in trouble. He was charged with receiving a soft toy. He spent four days in custody before he was released again by a magistrate. In 2011, we appeared for an Aboriginal girl from Roebourne in the Pilbara who was charged with trespass. She was found on the weekend playing in playground equipment in the local primary school. This year we have acted for an Aboriginal man from Perth who is homeless and a chronic alcoholic. He was charged with robbery involving a $1 packet of noodles taken from another homeless man. He up until yesterday had spent three months and two weeks on remand because he could not get bail.
That was the testimony that we heard in Western Australia.
The core theme of this inquiry's recommendations is for action at a federal level to change the trajectory of our justice system—to save money and create safer and stronger communities. The Commonwealth must take a leading role. We need excellent, reliable, comprehensive data to identify the at-risk communities where resources need to be directed. Huge gaps and inconsistencies in data were identified by many stakeholders. As such, we have specifically recommended that the Commonwealth—which is best placed to identify, coordinate and distributed nationally consistent data—consider establishing a justice reinvestment clearing house to promote good data research and program evaluation.
The committee acknowledges that it is states and territories which have primary responsibility for criminal justice, but increasing incarceration rates are occurring in all jurisdictions. As such, the committee is of the view that there is a benefit in a national approach to tackling this problem through justice reinvestment and that there are many ways the Commonwealth can encourage and support the concept. Justice reinvestment also offers significant economic benefits to the Commonwealth, particularly through a decrease in the need for welfare services and income support. Justice reinvestment also aligns with the Commonwealth's role in promoting human rights and the aims and initiatives of Closing the Gap.
Broad changes to Australia's justice system are not possible without the support and advocacy of the Commonwealth. We anticipate the central role of the Commonwealth would be in setting a policy landscape and encouraging state and territory buy-in through mechanisms like COAG. We want to see Commonwealth leadership. As such, I am pleased the committee has recommended the Commonwealth take an active role in advocating for justice reinvestment at COAG, establishing and funding trials of justice reinvestment and promoting the establishment of an independent central coordinating body for justice reinvestment.
Finally, the committee has also recommended that the Commonwealth to seek the establishment of justice targets for Aboriginal and Torres Strait Islander people as part of the Closing the Gap initiative. This has long been neglected, but closing the gap will not happen without reducing the imprisonment rate of Aboriginal and Torres Strait Islander people.
This inquiry has involved a great deal of hard work from a number of people and organisations. For this reason I would particularly like to thank those who made submissions and those who gave evidence to the inquiry. I also wish to give my sincere thanks to the secretariat of the Senate Legal and Constitutional Affairs References Committee, who have put an immense amount of work into crafting the report. It is one of the longer committee reports that I have had the pleasure to read, and it involved many hours of work on the part of the secretariat, particularly Ms Christine McDonald. I am very pleased to be able to commend this report to the Senate.
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.