ISBN: 978-1-74229-846-7

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

iii

Senator Sue Boyce, LP, QLD

Senator Michaelia Cash, LP, WA

Senator Mark Furner, ALP, QLD

Senator Gary Humphries, LP, ACT

Senator Bridget McKenzie, NATS, VIC

Senator Louise Pratt, ALP, WA

Senator Lisa Singh, ALP, TAS

Ms Christine McDonald Inquiry Secretary

Ms Ann Palmer Principal Research Officer

Mr Tim Hillman Inquiry Officer

Ms Marina Katic Administrative Officer

Ms Elise Williamson Administrative Officer

Ms Hannah Dibley Administrative Officer

Suite S1.61 Telephone: (02) 6277 3594

Parliament House Fax: (02) 6277 5794

Referral of the inquiry ............................................................................................ 1

Conduct of the inquiry ............................................................................................ 1

Acknowledgement .................................................................................................. 2

Structure of the report ............................................................................................. 2

Rates of imprisonment in Australia ........................................................................ 3

Trends in offending behaviour ............................................................................... 6

Drivers behind the growth in the Australian imprisonment rate ............................ 7

Economic and social determinants of crime ......................................................... 13

Conclusion ............................................................................................................ 17

Introduction .......................................................................................................... 19

Economic costs ..................................................................................................... 19

Social costs ........................................................................................................... 21

Conclusion ............................................................................................................ 25

Introduction .......................................................................................................... 27

Young people in the justice system ...................................................................... 27

Aboriginal and Torres Strait Islander peoples ...................................................... 31

People suffering from mental ill-health ................................................................ 34

Alcohol and substance abuse ................................................................................ 35

vi

Cognitive disability .............................................................................................. 37

People suffering from hearing loss ....................................................................... 40

Other disadvantaged groups ................................................................................. 41

Introduction .......................................................................................................... 43

What is justice reinvestment? ............................................................................... 43

Methodology of a justice reinvestment approach ................................................. 45

Justice reinvestment in overseas jurisdictions ...................................................... 48

Evaluation of justice reinvestment approaches in overseas jurisdictions ............ 56

Committee view .................................................................................................... 60

Introduction .......................................................................................................... 63

Benefits of a justice reinvestment approach ......................................................... 64

Economic benefits ................................................................................................ 66

Benefits for communities ..................................................................................... 67

Benefits for individuals ........................................................................................ 72

Emergence of support for a justice reinvestment approach in Australia .............. 74

Research projects .................................................................................................. 78

Concerns about a justice reinvestment approach for Australia ............................ 78

Conclusions .......................................................................................................... 80

Introduction .......................................................................................................... 83

Clarity of the meaning of justice reinvestment .................................................... 83

Multipartisan/multijurisdictional support ............................................................. 85

Whole of government/whole of system approach ................................................ 86

Public perception .................................................................................................. 88

Level of economic benefits .................................................................................. 89

Urban bias ............................................................................................................. 92

vii

Disadvantaged groups .......................................................................................... 93

Availability of data ............................................................................................... 94

Policy and program options .................................................................................. 99

Conclusion .......................................................................................................... 110

Introduction ........................................................................................................ 113

The value of a justice reinvestment approach in Australia ................................ 113

Commonwealth role ........................................................................................... 114

Independent body ............................................................................................... 120

Justice targets ...................................................................................................... 122

Conclusion .......................................................................................................... 123

ADCA Alcohol and other Drugs Council of Australia

AHRC Australian Human Rights Commission

AIHW Australian Institute of Health and Welfare

ALHR Australian Lawyers for Human Rights

ANFPP Australian Nurse Family Partnership Program

AVOs apprehended violence orders

AYAC Australian Youth Affairs Coalition

CAALAS Central Australian Aboriginal Legal Aid Service

CIS The Centre for Independent Studies

CSG Justice Center Council of State Government

FASD Fetal Alcohol Spectrum Disorders

HRLC Human Rights Law Centre

JJ NMDS Juvenile Justice National Minimum Data Set

NAAJA North Australian Aboriginal Justice Agency

NATSILS National Aboriginal and Torres Strait Islander Legal Services

NJCEOs National Justice Chief Executive Officers

NPHDC National Prison Health Data Collection

VACCHO Victorian Aboriginal Community Controlled Health

Organisation

WAAMH Western Australian Association for Mental Health

WACOSS Western Australian Council of Social Service

WANADA Western Australia Network of Alcohol and Drug Agencies

1.1 On 26 November 2012, the Senate referred to the Legal and Constitutional

Affairs References Committee the matter of the value of a justice reinvestment

approach to criminal justice in Australia for inquiry and report by 16 May 2013. The

Senate subsequently agreed to extend the reporting date for the inquiry to 20 June

1.2 The terms of reference for the inquiry were:

a) the drivers behind the past 30 years of growth in the Australian

imprisonment rate;

b) the economic and social costs of imprisonment;

c) the over-representation of disadvantaged groups within Australian

prisons, Including Aboriginal and Torres Strait Islander peoples and

people experiencing mental ill-health, cognitive disability and hearing

loss;

d) the cost, availability and effectiveness of alternatives to imprisonment,

including prevention, early intervention, diversionary and rehabilitation

measures;

e) the methodology and objectives of justice reinvestment;

f) the benefits of, and challenges to, implementing a justice reinvestment

approach in Australia;

g) the collection, availability and sharing of data necessary to implement a

justice reinvestment approach;

h) the implementation and effectiveness of justice reinvestment in other

countries, including the United States of America;

i) the scope for federal government action which would encourage the

adoption of justice reinvestment policies by state and territory

governments; and

j) any other related matters.

1.3 The committee wrote to 307 organisations and individuals, as well as the

Commonwealth and state and territory governments, inviting submissions by

15 March 2013. Details of the inquiry were also placed on the committee's website at

www.aph.gov.au/senate_legalcon

2013, p. 3659.

2

1.4 The committee received 131 submissions, and all public submissions were

made available on the committee's website. A list of submissions to the inquiry is at

Appendix 1. The committee held public hearings in Perth on 17 April 2013, Sydney

on 1 May 2013 and Canberra on 17 May 2013. A list of witnesses who appeared at the

the committee's website.

1.5 The committee thanks those organisations and individuals who made

submissions and gave evidence at the public hearings.

1.6 This report is divided into eight chapters:

Australian imprisonment rate;

Australian prisons;

well the implementation of justice reinvestment in overseas jurisdictions;

Australia;

approach in Australia; and

Australia.

2.1 The imprisonment rate in Australia has risen over the last 30 years.

Imprisonment rates are linked to the level of criminal activity, changes to justice

policies and practices, and social and economic factors such as poverty, levels of

substance abuse, unemployment, and levels of social and community cohesion. The

following discussion provides an overview of the rate of imprisonment in Australia

and canvasses the issues linked to changes in the rate.

2.2 There were 114 custodial facilities across Australia at 30 June 2012 of which

87 are government-operated prisons, eight are privately operated prisons, four are

transitional centres, one is a periodic detention centre and 14 are 24-hour court-cell

which are responsible for non-custodial sanctions and deliver post-custodial

interventions.

2.3 On average, 29,213 people per day (excluding periodic detainees) were held

in Australian prisons during 2011–12. This was an increase of 1.7 per cent over the

average daily number in 2010–11. The daily average prison population in 2011–12

2.4 The number of unsentenced (those on remand) prisoners comprised 23 per

cent of the total prison population at 30 June 2012. Over half (55 per cent) of all

2.5 As at 30 June 2012, Aboriginal and Torres Strait Islander prisoners comprised

just over a quarter (27 per cent or 7,982) of the total prisoner population. The age

standardised imprisonment rate for Aboriginal and Torres Strait Islander prisoners was

1,914 per 100,000 adult Aboriginal and Torres Strait Islander population. This was

15 times higher than non-Indigenous prisoners for whom the age standardised

2.6 The most common offences for sentenced male prisoners were acts intended

to cause injury (17 per cent) and sexual assault (15 per cent) while for females the

Services 2013, Vol. 1, p. 8.5.

Services 2013, Vol. 1, p. 8.5.

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most common were illicit drug offences (17 per cent of female prisoners) and acts

2.7 Australia's adult imprisonment rate was 168 per 100,000 adults at 30 June

2.8 While the Australian imprisonment rate is significantly less than that of the

United States and comparable to the United Kingdom, the rate has been increasing

over recent decades. In 1984, the rate of imprisonment was approximately 86 per

decrease in the rate of imprisonment between 2010 and 2011, the rate increased 11 per

2.9 All states and territories, with the exception of New South Wales and

Queensland, recorded increased imprisonment rates compared to 2002, with

fluctuations in imprisonment rates occurring within this ten year period. The Northern

Territory recorded the largest percentage increase in the imprisonment rate between

2002 and 2012, rising 72 per cent (from 480 prisoners per 100,000 adult population to

826 prisoners per 100,000 adult population). Western Australia had an increase of

37 per cent (from 195 to 267 prisoners per 100,000 adults). The imprisonment rate in

Queensland decreased between 2002 and 2012 (down 6 per cent, from 168 to 159

prisoners per 100,000 adults). The imprisonment rate in New South Wales also

2.10 As noted above, the Northern Territory has had the highest increase in the rate

of imprisonment for the period 2002 to 2012. The Northern Territory also recorded the

highest proportional increase in prisoner numbers between 2011 and 2012 – 11 per

cent. The prisoner population decreased by 4 per cent in New South Wales and by

2.11 The fastest growing area of the prison population is women prisoners. While

the overall prison population increased 1 per cent during 2011–12, the number of

female prisoners increased 8 per cent. The female imprisonment rate increased at a

5

2.12 The Report on Government Services provides information on adult offenders

released from prison who returned to corrective services within two years. For those

released nationally in 2009–10, 39.3 per cent had returned to prison by 2011–12,

while 46.1 per cent had returned to corrective services. The Northern Territory had the

highest rate of return to prison (52.4 per cent) while the ACT had the highest rate of

return to corrective services (56.1 per cent). South Australia recorded the lowest rate

of return for both classes of returning prisoners (29.1 per cent and 41.3 per cent

respectively).

2.13 The rate of return to prison under sentence has remained relatively stable

2.14 The Australian Bureau of Statistics reported that there were 7,979 prisoners

represented just over one quarter (27 per cent) of the total prisoner population.

Aboriginal and Torres Strait Islander prisoner numbers increased by 4 per cent

between 2011 and 2012. The highest number of Aboriginal and Torres Strait Islander

prisoners was in the Northern Territory (84 per cent of the total prison population) and

the lowest in Victoria (8 per cent).

2.15 The age standardised rate of imprisonment for Aboriginal and Torres Strait

Islander prisoners was 15 times higher than the rate for non-Indigenous prisoners at 30

June 2012, an increase in the ratio compared to 2011 (14 times higher). The highest

ratio of Aboriginal and Torres Strait Islander to non-Indigenous imprisonment rates in

Australia was in Western Australia (20 times higher for Aboriginal and Torres Strait

Islander prisoners). Tasmania had the lowest ratio (four times higher for Aboriginal

and Torres Strait Islander prisoners).

2.16 Between 2002 and 2012, imprisonment rates for Aboriginal and Torres Strait

Islander Australians increased from 1,262 to 1,914 Aboriginal and Torres Strait

Islander prisoners per 100,000 adult Aboriginal and Torres Strait Islander population.

In comparison, the rate for non-Indigenous prisoners increased from 123 to 129 per

100,000 adult non-Indigenous population.

2.17 There were proportionally more Aboriginal and Torres Strait Islander

prisoners than non-Indigenous prisoners with prior imprisonment. Nearly threequarters

(74 per cent) of Aboriginal and Torres Strait Islander prisoners had a prior

Services 2013, Vol. 1, p. C.21.

14 The Australian Bureau of Statistics noted that the willingness of Aboriginal and Torres Strait

Islander people to self identify may contribute to movements in Aboriginal and Torres Strait

Islander prison numbers.

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adult imprisonment under sentence, compared with just under half (48 per cent) of

2.18 In some jurisdictions, the growth in imprisonment rates may be linked to an

increase in offending behaviour. For example, the Youth Justice Advisory Committee

stated that over the last five years offending behaviour has increased in Alice Springs.

This includes a 173 per cent increase in break-ins and an 80 per cent increase in motor

2.19 However, in other jurisdictions crime rates have declined. In New South

Wales, between 1990 and 2010, the rate of murder decreased 50 per cent, motor

In Victoria, crime rates have declined by an average of 18.4 per cent over the last

10 years. The St Vincent de Paul Society noted that 'taking national averages, it seems

that violent crime has not increased over the last 20 years, while property crime rates

2.20 Some shift in the type of crime being attributed to certain groups was noted,

with the Youth Justice Advisory Committee stating that property crime had been the

main reason for youth offences in the Northern Territory but this has now shifted to

2.21 Jesuit Social Services argued that there is ample evidence that the Australian

rate of imprisonment is largely independent of the incidence of crime. Jesuit Social

Services concluded that the rate of imprisonment is:

...more a function of policy, the length of sentence imposed (and their

summation) and, at any given time, the size of the operational police

2.22 This view was supported by other submitters including the National

Association of Community Legal Centres which stated that the continued growth in

imprisonment rate, despite falling crime rates, has been attributed to the introduction

of harsher sentencing policies and political responses to social concerns about levels

7

2.23 As noted above, while crime rates have declined the rate of imprisonment has

increased. Factors contributing to the rate of increase include changes to justice

policies and practices including mandatory sentencing and more stringent bail

conditions. There are also underlying economic and social determinants which

contribute to criminal behaviour and thus bring people into contact with a more

2.24 The following section canvasses the drivers to the growth in the Australian

imprisonment rate.

2.25 Evidence received noted that the public response to crime in Australia has

grown increasingly punitive. Generally, the public perception of crime is at odds with

the actual incidence and trends in crime. This is attributed, in part, to the portrayal of

Justice Reinvestment Project stated many of the changes to judicial policy, such as

mandatory sentencing, parole changes and restrictions to bail, have followed 'media-driven

law and order campaigns around individual cases or as part of election

campaigns seeking to demonstrate "tough on crime" credentials and sympathy towards

2.26 Submitters commented that the growth of incarceration rates and 'tough on

crime' policies are linked. The National Aboriginal and Torres Strait Islander Legal

Services (NATSILS) commented:

Crime rates have not been the driving force behind the growth of Australia's

imprisonment rate. There has been no spike in the crime rate to which we

can attribute such a significant increase in incarceration. Nor have increased

incarceration rates led to any drop in the crime rate. Rather, the steady

increase in imprisonment rates has been the result of legislative and policy

2.27 'Tough on crime' policies have been pursued in most jurisdictions. For

example, it was submitted that the South Australian Government runs a 'tough on

crime' policy that has resulted in increased penalties and the introduction of

Submission 38; Western Australian Council of Social Services, Western Australian Association

8

provided the example of Victoria and stated that recent 'tough on crime' policies in

Victoria had resulted in an increase of average daily prison population of 5.3 per cent

Similarly, Queensland has recently introduced more punitive measures by introducing

legislation that increased the use of mandatory life sentences for certain sentences and

2.28 It was also noted that the Western Australian Government has increased

investment in prisons and has undertaken a 'tough on crime' approach including

mandatory sentencing, minimum terms, and reduced parole. Despite these changes,

2.29 In the Northern Territory, multiple governments have pushed for a more

penalty driven justice system. The Central Australian Aboriginal Legal Aid Service

(CAALAS) submitted that 'successive Northern Territory Governments have

emphasised increased policing and tougher sentences as a key policy platform'. This

has continued despite evidence presented that these policies were increasing

in the Northern Territory: imprisonment is not being used as a last resort; and bail is

not granted to certain types of offenders who should be able to be sentenced to noncustodial

2.30 Mr Peter Collins, Director of Legal Services, Aboriginal Legal Service of

Western Australia Inc., provided the following example to illustrate a culture of

incarceration:

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. He did not come to court,

because his mum got the dates confused, and he was remanded in custody.

The police eventually withdrew that charge but defended the decision to

2.31 The committee heard that the persistence of these punitive measures has

directly resulted in the increased growth in rates of imprisonment due to 'the limited

availability of non-custodial sentencing options, the limited availability of

29 Western Australian Council of Social Service, Western Australian Association for Mental

32 Mr Peter Collins, Director, Legal Services, Aboriginal Legal Service of Western Australia Inc.,

Committee Hansard, 17 April 2013, p. 37.

9

rehabilitative programs and a judicial and political perception of the need for

2.32 The South Australian Department for Correctional Services noted that the

average length of sentences has increased. This contributes to increased incarceration

rates:

…the number of prisoners in custody is primarily determined by the

decisions of the Courts where in general, the key factors driving overall

prisoner numbers are the numbers of offenders charged or sentenced to

custody for serious offences and the length of sentences they receive.

Average sentence lengths have increased from 66.4 months in 2007/8 to

2.33 The National Congress of Australia's First Peoples noted that a study in New

South Wales found that there was a rise in imprisonment rates between 2001 and 2008

but there had not been a corresponding rise in the conviction of Aboriginal and Torres

Strait Islander peoples over this period. It was reported that this was due to changes in

2.34 Mandatory sentencing has been introduced in Western Australia and the

Northern Territory. The Human Rights Law Centre (HRLC) noted that mandatory

sentencing laws limit judicial discretion in sentencing and prevent courts from taking

account of the cultural backgrounds and responsibilities of offenders, and the

economic and social issues they face. The HRLC went on to comment that:

The arbitrary nature of mandatory sentencing laws is also compounded by

some aspects of police practices. The exercise of police and prosecutorial

discretion effectively determines whether or not an offender is subject to a

2.35 The St Vincent de Paul Society commented that mandatory sentencing

'disproportionately affects those who are compelled to have no choice but to commit

crimes, for example, the mentally ill, those experiencing extreme poverty and children

of mandatory sentencing laws and stated that they are likely to greatly increase the

length of sentences imposed for violent offences and thus, significantly increase the

p. 2.

10

2.36 A further issue with mandatory sentencing laws raised by NATSILS was that

they may actually increase the likelihood of reoffending as periods of incarceration

diminish employment prospects, positive social links, and other protective factors that

2.37 The Chief Magistrate of the Northern Territory provided the committee with

evidence of incarceration rates as a result of the imposition of mandatory sentencing

in the Northern Territory during the period 1997 to 2001. The Chief Magistrate noted

that the imprisonment rate was 50 per cent higher during this period than following

repeal of the laws. Non-custodial orders such as home-detention and community work

were almost unused for property offences during the mandatory sentencing era.

2.38 In 2008, mandatory sentencing was introduced for first time assault offenders

where the injury interferes with a person's health and results in 'serious harm'.

Mandatory sentencing also exists for drink driving and drug driving offences and for

breaches of Domestic Violence Orders. The Chief Magistrate noted that as acts

intended to cause injury account for a significant number of matters before the Court

in the Northern Territory, this could significantly affect imprisonment rates. In

addition, in 2013, mandatory imprisonment periods were introduced for serious

assaults and repeat offenders. Again, the Chief Magistrate stated that these changes

are likely to result in significantly increased imprisonment rates particularly in regards

2.39 Changes in the criminal justice system have made it difficult for offenders to

comply with strict conditions such as stringent bail conditions. An offender may be

unable to meet bail conditions and may be remanded in custody for conditional or

technical breaches of bail. The occurrence of bail being granted is decreasing, with

offenders being refused bail due to an absence of appropriate accommodation or the

2.40 CAALAS provided the committee with information about changes to bail

practices in the Northern Territory. In 2003, 230 breaches of bail were recorded in the

Northern Territory. In 2010–2011, 1442 breaches were recorded. In March 2011, the

Bail Act (NT) was amended to include a new offence of breach of bail. As a

consequence, 2431 breaches were recorded in 2011–12. CAALAS stated that this

represents a rise of 67 per cent over a single year and the breach of bail offence

provision has meant that more people have been serving longer sentences in Central

2.41 NATSILS noted that in certain areas of Australia, if bail is breached and the

offender is remanded, there are no legislated limits on the terms of remand, leading to

11

a disproportionate amount of time the offender spends in prison. NATSILS submitted

that, with increased court congestion, many offenders end up serving longer periods

2.42 NATSILS and CAALAS drew the committee's attention to the impact of

'strict compliance' approaches to supervision and monitoring. NATSILS noted that in

several jurisdictions, probation and parole officers are subject to internal guidelines

which remove any element of discretion, and require all breaches to be reported,

however minor. As a consequence, there are high rates of parole revocations. For

example, in the Northern Territory in 2011, of the 46 parole revocations, only five

were for offending. All the remainder were for breached conditions which may have

been for single instances of failing to report at the required time, being exited from a

residential rehabilitation program, or travelling without permission.

2.43 NATSILS also noted that in some jurisdictions, it is required that 'street time'

be served out in the event that parole is revoked. Thus a prisoner whose parole has

been revoked must serve the total number of days that were outstanding against his or

her sentence at the date they were first released on parole. In some cases, this has

resulted in individuals serving total periods of supervision that exceed the original full

2.44 In addition, because of the strict compliance requirements and street time

provisions, probation and parole officers have become increasingly reluctant to

recommend parole for those prisoners where it is perceived there are barriers to the

successful completion of parole. NATSILS concluded that:

Such policies impact disproportionately on vulnerable parolees with

unstable living arrangements, limited financial means, and support

networks that lack understanding of the parole process. Aboriginal and

Torres Strait Islander parolees face additional barriers to achieving or

successfully completing parole, especially in cases where an individual

does not speak English or seeks to reside in a remote or regional

2.45 Submitters also noted that increased police presence in remote communities,

as a result of the Territory Emergency Intervention, has been linked with the rising

police presence in many communities has led to the effective criminalisation of

12

driving, with police targeting unlicensed drivers and vehicles without registration or

Of particular concern, research has also found there has been a 62%

increase in the recorded traffic and vehicle regulatory offences. According

to analysis by Dr Thalia Anthony, the majority of these offences do not

involve alcohol or lead to harm. Instead, they are regulatory offences such

as not having a driver's license, driving unregistered or in an unroadworthy

vehicle. According to Dr Anthony "the common trifecta is driving

unlicensed, driving unregistered and driving with an unroadworthy

vehicle." When these offences are prosecuted together there is a strong

2.46 As a consequence of greater policing, approximately 25 per cent of the

Northern Territory prison population comprises driving offenders, of whom

Enforcement of traffic offences has a role to play [in] increasing safety.

However, it also needs to be acknowledged that the lack of public transport,

access to suitable vehicles and licensing services in remote communities

disproportionately disadvantages Aboriginal and Torres Strait Islander

2.47 Sisters Inside also commented that over policing can lead to further charges

being laid against the person:

Over policing does not reduce crime in these communities or make them

safer to live in, rather it creates a net-widening effect. There are many low

level crimes that are often undetected and untargeted in non-Indigenous

communities, however net-widening often results in these crimes being

detected and charged within Indigenous communities. In addition, increased

interaction with the police increases the risk that charges will become

escalated with an individual also being charged with offences such as

2.48 The Chief Magistrate of the Northern Territory noted that mandatory

reporting requirements have increased reporting of crime in the Northern Territory.

This relates to domestic violence as well as mandatory reporting requirements for

children. The Chief Magistrate commented:

Increased reporting does not alone signify an increase in crimes committed,

only crimes recorded. In this sense the growth in imprisonment rates

brought about by increased reporting may be a positive change.

2013.

2013.

13

Additionally, mandatory reporting allows for the community to take

responsibility for violence. However, there are also concerns that it may

deter victims from seeking medical treatment and whether it has in fact

2.49 White Ribbon also commented that there has been a significant increase in

domestic violence reporting and police response rates to family violence offences in

all jurisdictions. White Ribbon stated that '[a]lthough it is difficult to conclude

whether the increase is reflective of increases in the incidence of violence, it is

arguable that this increase in reporting will lead to further pressure on the prison

2.50 The Anti-Discrimination Commission Queensland stated that a number of

social and economic drivers relating to the growth of imprisonment rates in Australia

have been identified over the years in numerous reports and academic journals. These

drivers include:

2.51 Submitters pointed to the study by Tony Vinson in 2007 which highlighted

the association between crime and disadvantage, indicating that the bulk of crimes are

committed by a small population which are densely located within a small number of

stated that various research findings supported this association including that:

(Australian Institute of Health and Welfare 2010);

homeless prior to their imprisonment (Willis 2004);

14

in prisons and generally experience more exacerbated adverse social

determinants than other prisoners;

their lives and 18 per cent are currently on medication for mental health

related conditions (Australian Institute of Health and Welfare 2010);

Hepatitis B (Victorian Ombudsman 2011);

being current smokers (compared with 16.6 per cent of the general

population) (Ministerial Council on Drug Strategy 2010);

compared with 20.4 per cent of the general population (Preventative Health

Taskforce 2009); and

with 13 per cent in the general community (Australian Institute of Health and

2.52 The National Association of Community Legal Centres stated that as criminal

behaviour is closely associated with disadvantage in living standards, health,

education, housing and employment, the 'failure to adequately address these issues in

many urban and rural communities in Australia has ensured that people in these

2.53 Similarly, Australian Lawyers for Human Rights (ALHR) commented on

factors contributing to juvenile offending:

…juvenile offending is highly likely to lead to adult offending, particularly

serious crimes…the findings [of research into this issue] reveal that

unemployment, child abuse/neglect, drug and alcohol abuse, mental health

issues and performance at school are all factors highly associated with

2.54 The impact of poverty on incarceration rates for women was raised by Sisters

Inside which commented that 'any attempt to divert women and children from the

juvenile justice and criminal justice systems must address the fundamental issue of

poverty'. Sisters Inside noted that prior to imprisonment 50 to 75 per cent of women

prisoners were unemployed while the majority of criminalised women (and their

Submission 61, p. 5.

15

2.55 Another factor that relates heavily to incarceration rates is drug and substance

abuse. Crime and substance abuse seem to be intrinsically linked as 'substance use

leads to crime; crime leads to substance use and substance use and crime are caused

2.56 Alcohol abuse is observed as a significant factor in offending behaviour and is

Australia (ADCA) cited South Australian police data reporting percentages of

offensive behaviour that related to alcohol, such as:

2.57 In addition, in 2008, 75 per cent of prison entrants in South Australia had a

Nationally, the most frequently used drug prior to imprisonment was cannabis at

81 per cent, followed by amphetamines at 57 per cent, cocaine at 45 per cent and

2.58 The South Australian Network of Drug and Alcohol Services pointed to a

number of specific factors contributing to the rise in imprisonment rate associated

with substance abuse, including:

illegal drugs;

attending a range of incidents which carry potential prison sentences; and

2.59 Recidivism through alcohol and substance abuse is substantial particularly for

injecting drug users. Prisoners with a history of injecting drug use were found to be

16

2.60 The imprisonment rate is also driven by the rate of recidivism. Submitters

suggested that the Australian corrections system does not assist in deterring offenders

from reoffending. Rather, it reinforces offending behaviour as it does not address the

underlying causes for incarceration, while placing an unnecessary burden on police

has experienced imprisonment…their likelihood of further imprisonment is increased',

2.61 The committee was also informed that there are many social and economic

factors that are associated with recidivism that are not appropriately addressed by the

justice system. These factors can include, for example, inadequate housing and poor

nutrition as individuals without a safe residence or access to three meals a day are

2.62 At times, the justice system reinforces recidivism by affecting offenders

negatively and creating difficult release environments such as suspended drivers

licences, transitory living arrangements, unpaid fines and prior records that can act as

imprisonment rate, the overcrowding of prisons has made it difficult for prisoners to

access programs that are aimed at addressing the underlying causes of offending

behaviours. This is because the programs are unavailable due to funding issues or are

2.63 There has been a sharp rise in the incarceration of women. The South

Australian Justice Reinvestment Group noted that the rate of women committing

certain offences is increasing, particularly offences that include deception, acts likely

2.64 Factors contributing to female incarceration include poverty, poor education

outcomes, unstable housing, domestic violence and/or sexual abuse and trauma.

Women who have been incarcerated have a higher chance of substance abuse, mental

71 Western Australian Council of Social Services, Western Australian Association for Mental

17

2.65 Submitters commented on Aboriginal and Torres Strait Islander women who

enter the corrections system. In particular, the impact of family violence and trauma

on women was noted. The Victorian Equal Opportunity and Human Rights

Commission stated that:

Family violence and other stressors manifest across the life cycle, and

across generations. This cycle is typified by periods in prison, which

entrenches trauma, family breakdown, contact with child protection and

out-of-home-care systems, homelessness, family violence, substance

misuse and mental health episodes. These inform further contact with the

criminal justice system, re-imprisonment, post-release breakdown, reoffending

2.66 The issue of recidivism is just as significant when it comes to female

prisoners as it is with the general prison population, with at least 40 per cent of

women leaving prison subsequently reoffending – 17 per cent of those within

2.67 It is acknowledged that the Australian imprisonment rate has been growing

and that prison populations have reached an unacceptable level. Drivers behind the

increase in imprisonment rates include changes in the justice system and the

introduction of more punitive measures as a result of 'tough on crime' policies. In

addition, the underlying social and economic determinants of crime compound

systemic changes. To halt the increasing incarceration rate in Australia, all drivers of

crime must be addressed.

3.1 This chapter examines the economic and social costs of imprisonment. As

prison populations increase, so do infrastructure costs leading to an unsustainable

justice system and rising economic costs. Imprisonment also has social costs for

individuals, families and communities.

3.2 The Report on Government Services 2013 provides information on the costs

of the justice system. For 2011–12, the costs for police services, courts (criminal and

civil) and corrective services was $14.02 billion. This was an increase from

$12.3 billion in 2007–08. The average annual growth rate for total costs was 3.3 per

cent over the period 2007–08 to 2011–12 with the growth rate for expenditure

3.3 The economic costs of imprisonment in Australia are substantial. As noted in

chapter 2, there are 114 custodial facilities. Reported recurrent expenditure on prisons

and periodic detention centres was $2.4 billion in 2011–12, with an additional

$0.5 billion expenditure on community corrections. Net operating expenditure on

corrective services including depreciation was $3.1 billion in 2011–12; this was an

3.4 The Report on Government Services 2013 provided further information on the

costs of the justice system:

per day, comprising net operating expenditure, depreciation, debt servicing

fees and user cost of capital, was $305;

decrease from $235 in 2007–08;

17 offenders for every one (full-time equivalent) community corrections staff

member in 2011–12; and

Services 2013, Vol. 1, p. C.9. Expenditure is for real recurrent expenditure in 2011–12 dollars.

Services 2013, Vol. 1, pp 8.3–8.4.

20

3.5 The committee was provided with details of expenditure in various

jurisdictions. The Western Australian Department of Corrective Services calculated

that the cost per day for juvenile detention was $624 per person, and for juvenile

community custody $77 per person. The cost of detaining a young person was

3.6 In South Australia, annual operating expenses for the Department of

Correctional Services were $226.5 million of which 61 per cent were employee

expenses. Of the operating expenses, $156 million was spent on custodial services,

$37 million on rehabilitation and repatriation and $30 million on community based

3.7 In New South Wales in 2011–12, approximately $130.6 million was spent on

modelling by the University of NSW found that the whole of life institutional costs of

a female Aboriginal offender in NSW with a history of homelessness, drug and

3.8 The cost of detaining a juvenile offender in NSW in 2010–11 was $652 per

day compared to the cost of supervision in the community by Juvenile Justice NSW of

3.9 CAALAS provided information on the costs of imprisonment in the Northern

Territory. The average cost per person per day in prison in the Northern Territory is

$243.20. Given the high rates of imprisonment, the cost per day of imprisonment is

approximately $2 per adult Territorian per day ($733 per year). This compares with

the national average daily cost of imprisonment of 52 cents per adult Australian per

3.10 Direct economic costs of imprisonment are expected to grow with a new

prison currently in development in Darwin expected to cost approximately

Services 2013, Vol. 1, pp 8.24, 8.27, 8.28.

21

3.11 Coupled with the enormous direct economic cost of imprisonment, there are

indirect economic costs. These include loss of employment and deterioration of skills.

For instance, the imprisonment of juveniles can create a lifecycle of offending that can

disrupt schooling and preclude the individual from developing skills. They have little

3.12 Governments also experience indirect costs through increased demand for

health and welfare services both for prisoners and their families.

3.13 The South Australian Justice Reinvestment Working Group argued that the

'social costs of imprisonment not only to offenders but also to their family and friends

costs to families and children for the loss of a parent and/or breadwinner; loss of

employment opportunities; poor health outcomes for prisoners, including a relatively

high risk of mortality post-release; and loss of engagement with the community.

3.14 Many submitters pointed to the breakdown of social and family bonds as a

result of incarceration. The Victorian Equal Opportunity and Human Rights

Commission submitted that:

High rates of imprisonment break down the social and family bonds that

guide individuals away from crime, remove adults who would otherwise

nurture children, deprive communities of income, reduce future income

potential, and engender a deep resentment toward the legal system. As a

result, as communities become less capable of managing social order

3.15 The situation is exacerbated when the individual incarcerated is the main

breadwinner or a parent. The lack of a parent creates difficult circumstances for a

child, with a less stable and predictable home life, generating a higher chance of the

3.16 Aboriginal children are particularly at risk of having a parent in prison with

the North Australian Aboriginal Family Violence Legal Services noting that 'up to

80% of Aboriginal women in prison are mothers…and an estimated 20.1% of

Indigenous children in Australia will be affected by parental incarceration in their

22

3.17 The 2010 report also found that children with an incarcerated parent

commonly experience a similar pattern of traumatic events, often witnessing their

parent's crime and arrest, losing a parent, the disruption of their family environment,

Children with parents in prison are also more at risk of abusing drugs and alcohol,

dropping out of school and exhibiting aggressive and/or antisocial behaviours.

3.18 When a mother is imprisoned, family breakdown is exacerbated particularly

as there are a relatively small number of women's prisons and they are typically

future when their mothers are imprisoned, and often come to the attention of child

Ms Tammy Solonec, Director, National Congress of Australia's First Peoples, noted

that Indigenous youth are '10 times more likely to be in out-of-home care, currently

3.19 The Victorian Equal Opportunity and Human Rights Commission noted that

3.20 The committee heard that Indigenous prisoners are affected profoundly with

the breakdown of links with family members and communities. Indigenous

communities are also affected as every individual has a role to play including financial

and social. If an individual or group of individuals is removed, the community is

heavily burdened, weakening the community and exacerbating economic distress

In regard to the economic and social costs of imprisonment, we would like

to note that the social costs of imprisonment on Aboriginal and Torres Strait

Islander people is heightened because our identities are often shaped by our

connection with our country, our culture and our families.

The Royal Commission into Aboriginal Deaths in Custody and

international research have emphasised the devastating impact that a

disconnect with country and culture caused by incarceration has on the

identity and well-being of Indigenous people. Both conclude that

Hansard, 17 April 2013, p. 18.

23

connection to culture can serve as a preventive measure against risk-taking

3.21 The NSW Reconciliation Council noted that while the removal of a small

number of serious offenders to prison may act as a deterrent and make communities

safer, in Indigenous communities, the impact is significant:

…the frequent incarceration of Aboriginal people from communities

ruptures social structures and affects Aboriginal peoples’ capacity to fully

participate in life in both their community and the broader Australian

3.22 The impact of imprisonment on young people was described by the Australian

Youth Affairs Coalition (AYAC). AYAC stated that incarceration of young people

can have negative impacts resulting in a decrease in wellbeing, disengage the person

from education and involvement with the labour force, disrupt positive relationships

3.23 A further impact on imprisonment occurs when the person leaves the

corrections system. The Law Council of Australia explained:

For some individuals, imprisonment can have a detrimental impact on their

ability to turn their life around once they are released. Indeed, one of the

significant difficulties encountered by individuals after they have been

released from prison is re-integrating into society. Many people experience

difficulties in overcoming the stigma associated with being imprisoned

once they are released. This is particularly the case when it comes to

finding employment. Indeed, as noted by the LSWA, difficulties in

obtaining legitimate employment can increase the pressure on former

offenders to earn income through illegitimate means which can then lead to re-offending.

Other individuals may suffer from serious psychological and physical

health conditions post release which may also negatively impact their

3.24 Submitters commented on the health impacts of imprisonment. The increase

in prison populations has caused overcrowding in prisons, which impacts on prisoner

health. Drug use and related health issues are a concern with a higher rate of hepatitis

C and HIV manifesting in prison populations due to needle sharing. The overall

prevalence of hepatitis is estimated to be between 23 and 47 per cent for male

prisoners and between 50 and 70 per cent for female prisoners. As many prisoners

Hansard, 17 April 2013, p. 18.

24

move in and out of the corrections system quickly, these infections pose a risk to both

the inmate and public health. Prisoners with histories of substance abuse are also at a

3.25 The prison population is also at risk in relation to mental health. There is a

high rate of mental health illness in the justice system with 31 per cent of imprisoned

individuals reporting they had been told by a health care professional that they had

had a mental health disorder in their lifetime, 'a rate 2.5 times higher than the general

3.26 It was also submitted that prisoners with mental ill-health do not have access

to effective treatment programs, and often wait long periods of time before receiving

support. Without adequate care, individuals suffering from mental ill-health are

released back into the community without proper rehabilitation, with the possibility

that their condition has worsened during their term of imprisonment. Western

Australian Council of Social Service (WACOSS), Western Australian Association for

Mental Health (WAAMH), Western Australia Network of Alcohol and Drug Agencies

(WANADA) noted a 2011 report on Western Australian prisons which stated that

'with problematic prison overcrowding, the mental wellbeing of prisoners will only

worsen as living conditions become more cramped…and interpersonal difficulties

3.27 The Victorian Aboriginal Community Controlled Health Organisation

(VACCHO) submitted that prisoners are more likely to die or be hospitalised,

especially Aboriginal prisoners. Hospitalisation costs (based on bed days) of

Aboriginal prisoners in the first year of release has been costed at $5.4 million in

Western Australia alone, driven predominantly by mental and behavioural disorders

and injuries. More than a third of Aboriginal women released from prison were

3.28 VACCHO went on to comment that Aboriginal people are also much more

likely to die after they are released from prison, most commonly through suicide,

motor vehicle accidents, circulatory system diseases and drug-related deaths.

Aboriginal prisoners also experience poorer health, with much higher rates of sexually

transmitted infections, blood borne viruses, high blood sugar and diabetes, liverdisease

markers, asthma and more. These health problems lead to poor quality of life

and premature death and results in grief, loss, and trauma among family, friends, and

28 Western Australian Council of Social Service, Western Australian Association for Mental

29 Western Australian Council of Social Service, Western Australian Association for Mental

25

communities. VACCHO concluded that these imprisonment costs are a significant

3.29 Ultimately, the social factors created by imprisonment reinforce recidivism

increasing the economic cost on the state. Sisters Inside explained that:

The social costs of imprisonment are self-evident. With every new

generation of criminalised women and children the net widens. Increasing

numbers of individuals and families are being drawn into the cycle of

criminalisation, child protection, poverty and despair – at great cost to the

state. At the same time, they are being drawn away from social and

3.30 The over-representation of disadvantaged groups within prisons, including

Aboriginal and Torres Strait Islander peoples and people experiencing mental illhealth,

cognitive disability and hearing loss will be examined in Chapter 4.

3.31 The increase in prisoner numbers is putting financial strain on the Australian

justice system, which is quickly becoming unsustainable. Released prisoners are

finding it difficult to find work and are facing multiple barriers to reintegrating with

society. In addition, the removal of an individual from a community or family can

have long lasting effects, as well as increasing financial burden. Due to the

overcrowding of prisons, prisoner health is deteriorating and those health issues are

being transferred to society with the release of prisoners. Governments need to

address the long term economic and social costs of imprisonment to prevent further

development of intergenerational offending, and occurrences of recidivism.

4.1 This chapter examines the over-representation of disadvantaged groups within

Australian prisons including Aboriginal and Torres Strait Islander peoples and

individuals experiencing mental ill-health, cognitive disability and hearing loss. Other

issues were also identified such as an increase of juvenile representation in the justice

system, the correlation between the completion of high school and offending

behaviour, as well as the link between incarceration and language impairment.

4.2 In Australia, the upper age limit for treatment as a young person in the justice

system is 17 in all states and territories except Queensland, where the limit is 16.

However, some young people aged 18 and older are involved in the youth justice

system—reasons for this include the offence being committed when the young person

was aged 17 or younger, the continuation of supervision once they turn 18, or their

4.3 The Australian Institute of Health and Welfare (AIHW) administers the

Juvenile Justice National Minimum Data Set (JJ NMDS). Both Western Australia and

the Northern Territory have not contributed to the NMDS since 2007–08. The AIHW

4.4 AIHW data indicated that on an average day in 2011–12, there were almost

7,000 young people aged 10 and older under youth justice supervision. A total of

13,830 young people were supervised at some time during the year. Among those

aged 10–17, this equates to a rate of 26 young people per 10,000 under supervision on

4.5 Most young people under supervision are male and the majority are aged 14–

17. Most young people are supervised in the community with 1,000 (14 per cent) in

4.6 Most young people in supervision were from cities (49 per cent) and regional

areas (40 per cent). Young people aged 10–17 from remote areas were almost four

Bulletin 115, April 2013, p. 3.

Bulletin 115, April 2013, p. 4.

Bulletin 115, April 2013, p. 1.

28

times as likely to be under supervision on an average day as those from major cities

(63 per 10,000 compared with 17 per 10,000), while those from very remote areas

were six times as likely (103 compared with 17 per 10,000). The AIHW added that,

based on postcode of last address, almost 2 in 5 young people under supervision on an

average day were from the areas of the lowest socioeconomic status. Young people

aged 10–17 from the areas of lowest socioeconomic status were five times as likely to

be under supervision as those from the areas of highest socioeconomic status (42 per

4.7 The AIHW commented that nationally, the numbers and rates of young people

under justice supervision have remained relatively stable over the four years from

4.8 The Youth Affairs Council of Western Australia submitted that the daily rate

of young people in detention in Western Australia between 2007 and 2011 increased

information on youth detention, including trends, in Western Australia. While the

number of proceedings taken against young people by police in Western Australia

decreased (by 20 per cent in 2010–11), the average daily population in juvenile

detention grew by 2.1 per cent. Over the five years from 2005, there was a 40 per cent

increase. The Commissioner also noted that Western Australia has the second highest

rate of juvenile detention in Australia, 0.69 young people per 1,000 in detention,

4.9 The cost of detaining juveniles is high. The cost of housing a young person in

a correction facility is significantly higher than the costs of accommodating adult

prisoners. In NSW, just under half of the Department of Juvenile Justice budget is

4.10 Indigenous young people are over-represented in the justice system. Although

less than 5 per cent of young people are Indigenous, on an average day in 2011–12,

39 per cent of those under supervision were Indigenous. In detention, this proportion

was higher, where almost half (48 per cent) are Indigenous. Indigenous young people

under supervision were younger, on average, than non-Indigenous young people.

Bulletin 115, April 2013, p. 6.

Bulletin 115, April 2013, p. 16.

Independent Studies, No. 134, 2013, p. 4.

29

About 1 in 4 Indigenous young people under supervision on an average day were aged

4.11 Nationally, there were 236 Indigenous young people per 10,000 aged 10–17

under justice supervision on an average day in 2011–12, compared with just 15 non-

Indigenous young people per 10,000. Thus, Indigenous young people aged 10–17

were almost 16 times as likely to be under supervision as non-Indigenous young

people.

4.12 This over-representation was most notable in detention where Indigenous

young people aged 10–17 were 15 times as likely as non-Indigenous young people to

be under community based supervision and almost 25 times as likely to be in

data for the NMDS which covers the whole justice system, data is provided for

detentions. In the Northern Territory, there were 39 Indigenous young people aged

10 to 17 in detention on an average night in the June quarter 2011–12. This was a rate

of 3.29 per 1,000 Indigenous young people. In Western Australia, the rate was

4.13 The trend in Indigenous young people under justice supervision is different to

the national trend: between 2008–09 and 2011–12, there was an increase in the rate of

Indigenous young people aged 10–17 under supervision on an average day from

increased in unsentenced detention over the period from 24 to 31 times the likelihood

4.14 There are multiple reasons for the increased juvenile representation in prisons.

These include the disproportionate over-representation of Aboriginal young people

held in detention. The AHIW reported that data collections show that young people

from areas of low socioeconomic status or remote areas and young people who are

homeless or in the child protection are also over-represented in the youth justice

Bulletin 115, April 2013, p. 9.

Bulletin 115, April 2013, p. 10.

Bulletin 115, April 2013, p. 16.

Juvenile justice series No. 11, 2012, p. vii.

30

people being held on remand; the limited implementation of bail and supervision

4.15 Legal Aid NSW commented that young people are often released on bail

subject to onerous conditions such as curfews, requirements to be in the company of a

parent, requirements to follow the directions of a parent, and place restrictions.

Because of the stringency of such conditions, there is an increased likelihood that the

conditions will be breached. Legal Aid NSW also commented that police appear to be

giving more attention to bail compliance checking. As a result, the number of bail

4.16 This trend has several adverse consequences: a young person breaching bail

will end up on remand; and if the young person comes into contact with the adult

criminal justice system at a later stage having breached bail multiple times as a

juvenile, that person is treated by the courts as a person with a lengthy criminal history

which, among other things, decreases the chances of that person being granted bail in

4.17 In addition, a disproportionately larger number of juveniles are currently

being held on remand in comparison to the rest of the prison population, for example,

53 per cent of the 320 juveniles and young people in custody in NSW held on remand.

One of the reasons for remand being that 'a substantial number are refused bail

(NAAJA) observed that on 31 January 2013, 24 of 65 juvenile detainees in the

due to their difficulty in upholding strict bail conditions and yet over 80 per cent of

young people in remand in Western Australia will not receive a custodial sentence

4.18 The offending behaviour of young people is linked to their circumstances:

'there is strong evidence that children who suffer abuse or neglect are more likely to

15 per cent of young people under juvenile justice supervision received homelessness

support in the year before their most recent supervision. There is also an overlap

between youth justice and child protection systems. Almost 10 per cent of those who

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 19.

22 Western Australian Council of Social Services, Western Australian Association for Mental

31

have had some supervision have also had at least one substantiated child protection

4.19 Aboriginal and Torres Strait Islander peoples are the most over-represented in

Australia's justice systems. The Report on Government Services Indigenous

Compendium provided the following information for 2011–12:

prisoners nationally;

2246.3 compared with a corresponding rate of 123.7 for non-Indigenous

prisoners;

adults was 1749.7 compared with a corresponding rate of 129.1 for non-

4.20 It was noted that there has been an increase in the incarceration of Indigenous

prisoners. In 1991, the number of adult Indigenous prisoners was 2,140 and 14 per of

all adult prisoners identified as Indigenous. Currently, Indigenous people comprise

only 2.5 per cent of Australia's population they also incorporate over a quarter of the

Islander peoples are incarcerated at a rate 14 times higher than non-Aboriginal and

Torres Strait Islander peoples. This rate has increased between 2000 and 2010 by

almost 59 per cent for Aboriginal and Torres Strait Islander women and 35 per cent

4.21 The National Justice Chief Executive Officers (NJCEOs) also commented on

the trend in Indigenous incarceration and stated that if the rate of Indigenous

imprisonment is maintained at current levels, in 2021 the number of Indigenous

people in prison on an average day will increase to 10,313. However, if the rate

continues to trend upwards as it has over the last decade, in 2021, the number of

Indigenous people in prison on an average day will reach 13,558. The NJCEOs stated

that this would represent 'a virtual doubling of the number of Indigenous adults in

Services 2013 Indigenous Compendium, pp 8.3–8.4.

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 5. Note: Hudson

commented that the increase in the proportion of Indigenous offenders is partly due to more

Aboriginal offenders identifying as Indigenous and not just the result of increases in offending

rates.

32

4.22 The South Australian Justice Reinvestment Working Group submitted it is the

rate of reoffending of Indigenous people, as well as their over-representation in the

justice system, which is of concern. In 2011, 70 per cent of Aboriginal and Torres

Strait Islander prisoners convicted of a violent offence had a previous conviction and

4.23 Sisters Inside pointed to the increasing incarceration rate of Indigenous

women and stated that not only are Indigenous women the most over-represented

population in prison, they also have the fastest growing rate of imprisonment.

Nationally, the increase in incarceration rates between 2000 and 2010 was greater for

Aboriginal and Torres Strait Islander women than any other cultural group. Over the

last decade there was a 58.6 per cent increase in incarceration for Indigenous women

compared with a 22.4 per cent increase for non-Indigenous women. The increase in

incarceration for Indigenous men was 35.2 per cent. Indigenous women are also more

more likely to be in prison on remand and less likely to be granted conditional release

4.24 Sisters Inside pointed to the significant level of trauma and abuse suffered by

Indigenous women beginning in childhood. Many face high levels of ongoing family

violence which have been connected to their offences and convictions with 80 per cent

of women prisoners in one NSW study stating that they believed their offending was a

direct consequence of their victimisation. The effects of repeated victimisation are

well documented and can lead to low self-esteem, anxiety, depression, other mental

health issues and substance abuse. Sisters Inside concluded:

These factors are all correlated with increased risk of offending and in the

case of substance abuse can constitute an offence in itself. Therefore many

Indigenous women and girls are not only stuck in cycles of abuse as

victims, but also get stuck in cycles of offending in an effort to cope with

4.25 It was noted that violent offending is the primary driver of Indigenous

incarceration and that offences against justice procedures have a considerable impact.

Violent offences account for 48 per cent of all prison sentences and offences against

Submission 71, p. 8.

33

4.26 Other drivers behind the over-representation of Aboriginal and Torres Strait

Islander people in Australia's prisons are linked to disadvantage: high levels of

poverty, poor education outcomes and high rates of unemployment, lack of housing

and homelessness, family dysfunction and loss of connection to community and

schooling also has a direct impact on the growing rates of imprisonment of Aboriginal

incarceration rates is high, with suggestions that 'alcohol is a factor in up to 90 per

4.27 The changes to judicial processes have also been linked to increases in

Indigenous incarceration. For example, submitters pointed to the impact of mandatory

sentencing laws. NATSILS submitted that:

By removing discretion, mandatory sentencing has resulted in inappropriate

sentences of imprisonment, disproportionately high imprisonment rates in

those jurisdictions in which it exists, and has contributed to the

overwhelming overrepresentation of Aboriginal and Torres Strait Islander

4.28 Furthermore, strict bail and monitoring conditions are becoming increasingly

difficult to follow for some individuals with unstable living arrangements or a lack of

financial means. These pose further issues for Indigenous populations 'especially in

cases where an individual does not speak English or seeks to reside in a remote or

continue to use arrest for minor offences, meaning that Indigenous people are far more

likely than non-Indigenous people to be arrested, charged, taken to court and given

4.29 A further matter raised in evidence was 'normalisation' of imprisonment. As a

consequence, imprisonment loses much of its deterrent effect and becomes a 'rite of

passage' for disenchanted young people. Mr Craig Comrie, Youth Affairs Council of

Western Australia, stated:

Unfortunately, I have heard numerous stories—in Western Australia

particularly, given our distance and the location of our juvenile facility in

Perth—of young people in regional areas offending merely so they can be

with their friends and peers, because they know that they are in the prison

here. I think as well there is an element of young people seeing it as a right

of passage. I would hazard to say that I do not think it is the main

contributor that puts young people into the detention system, but it is

34

something that we need to look at, and at providing young people with

better opportunities and better support in their own communities so that it

does not sound like a good thing to head down to Perth to go to Banksia

4.30 A large number of individuals suffering from mental ill-health are contained

in Australia's justice system. The AIHW 2010 National Prisoner Health Census found

that 31 per cent of people coming into prison reported having ever been told that they

had a mental health disorder. Female prison entrants were more likely to have a

history of mental health disorder than males. The proportion of prison entrants with a

history of mental health disorder was about 2.5 times higher than the general

personality disorder and substance use disorder is included as a mental health problem

4.31 This data is supported by the Human Rights Law Centre which stated that:

…around one in every five prisoners in Australia suffers from serious

mental illness. There is both a causal and consequential link between

imprisonment and mental illness; people with mental illness are more likely

to be incarcerated, particularly having regard to the lack of support

provided by the poorly resourced community mental health sector, and

people in prison are more likely to develop mental health problems, with

4.32 The reasons behind the high rates of incarceration for individuals suffering

from a mental illness include their incidence of homelessness and economic

difficulties, the deinstitutionalisation and isolation of those suffering from mental

illness, and increased alcohol and substance abuse among the general population as

4.33 The National Centre for Indigenous Studies and Indigenous Offender Health

Capacity Building Group explained that due to a lack of appropriate mental health

an individual suffering from a mental illness is imprisoned, the situation is often

exacerbated as a result of inadequate prison health care. These individuals are

39 Mr Craig Comrie, Chief Executive Officer, Youth Affairs Council of Western Australia,

Committee Hansard, 17 April 2013, p. 29.

Bulletin 104, June 2012, p. 6.

44 National Centre for Indigenous Studies and Indigenous Offender Health Capacity Building

35

managed in other ways, including through segregation, and such methods can have a

4.34 An individual with a mental illness also has a higher chance of being

incarcerated if that person also abuses drugs or alcohol as it 'drastically increases a

person's risk of negative interactions and outcomes, in particular as it relates to

4.35 The National Congress of Australia's First Peoples also commented on the

association between mental health conditions and imprisonment rates for Aboriginal

and Torres Strait Islander peoples. A recent study of Aboriginal and Torres Strait

Islander people in Queensland prisons found that 72.8 per cent of men and 86.1 per

cent of women had at least one mental health disorder, compared to a prevalence rate

in the general community estimated at 20 per cent. The study concluded that the

overrepresentation of Aboriginal and Torres Strait Islander people in prison, the high

prevalence of mental disorder, and the frequent transitioning to and from prison,

4.36 Another disadvantaged group that is over-represented in the penal system is

those individuals with a history of alcohol and substance abuse. The South Australian

Justice Reinvestment Working Group cited the AIHW's 2010 report on prisoner health

which stated that:

prior to incarceration (compared with 15 per cent of the general population

using illicit drugs in the previous 12 months);

4.37 A high number of prison inmates blame intoxication for their imprisonment.

A review of inmates in NSW and the ACT found that 61 per cent of inmates in NSW

and 72 per cent of inmates in the ACT stated that their current imprisonment was due

to being intoxicated while offending, showing the direct link between alcohol and

4.38 Some offences have a high correlation with drug and alcohol use such as

homicide, with 47 per cent of 1,565 homicides over six years being categorised as

46 Alcohol Tobacco and Other Drug Association ACT, ACT Council of Social Service, Mental

49 National Centre for Indigenous Studies and Indigenous Offender Health Capacity Building

36

alcohol related, with both the victim and the offender having consumed alcohol prior

drunkenness fueling aggression and hostility. Potent stimulants, for example

methamphetamines, can cause severe hostility including aggression, breaking

4.39 Furthermore, drug and alcohol dependency can push an individual with

limited income to commit property crime in order to sustain their habit. Conversely,

an individual may resort to drug dealing to finance their addiction. This can create a

higher chance of further offending as '[a]mong higher level dealers violence is

4.40 For female offenders, there is a stronger association between incarceration

and drug and alcohol dependency than for male offenders. The Women in Prison

Advocacy Network submitted that the reason for this was that 'women are more

inclined to abuse substances as a form of self-medication or coping mechanism for the

historical trauma itself may have been the result of the alcohol and drug abuse of a

4.41 Drug and alcohol abuse can have intergenerational effects, especially for

individuals that have been exposed to alcohol in the womb. Fetal Alcohol Spectrum

Disorders (FASD) are conditions that are unique to an individual who has been

exposed to alcohol during pregnancy and is characterised by:

…a spectrum of conditions which are unique to an individual and which

may be physical and/or neurobehavioural…fetal alcohol exposure is often

noticed as behaviours which result in a disparity between individual

abilities and environmental expectations which increase over time.

Frequently undetected, FASD is referred to as the "invisible disability".

This may be attributed to the current lack of a comprehensive

understanding of FASD among many health professionals and service

4.42 The Royal Australian and New Zealand College of Psychiatrists submitted

that the resulting brain damage from prenatal exposure to alcohol can increase

involvement in criminal activity due to the following characteristics of FASD:

37

4.43 There are other factors that can increase the probability of an individual with

FASD committing offending behaviours. Dr Raewyn Mutch, Telethon Institute for

Child Health Research, explained:

These conditions are characterized by significant central nervous system

dysfunction leading to learning, developmental, sensory and behavioural

problems. They are primary disabilities that then go on to develop

secondary and tertiary disabilities such as depression, school failure, low

self-esteem…They can also go on to develop other mental health disorders

4.44 Dr Mutch also noted that studies from North America have estimated that

juveniles with FASD are 19 times more likely to be incarcerated than those without

4.45 The National Organisation for Fetal Alcohol Spectrum and Related Disorders

also pointed to a North American study which found that '60% of adolescents and

adults diagnosed with FASD had been in trouble with the law and 50% had

experienced a type of confinement'. Other indicators of higher rates of offending

behaviour included '61% of individuals having a disrupted school

experience…35% experienced alcohol and other drug problems and 49% had

4.46 Individuals with an intellectual disability are similarly overrepresented in

Australia's justice system. The Royal Australian and New Zealand College of

Psychiatrists referenced a study that examined '1,325 prisoners in Queensland and

found that 9% of prisoners had an intellectual disability…three times higher than the

57 Dr Raewyn Mutch, Post-Doctoral Research Fellow, Alcohol, Pregnancy and FASD Research

p. 1.

58 Dr Raewyn Mutch, Post-Doctoral Research Fellow, Alcohol, Pregnancy and FASD Research

p. 1.

38

survey that found that 17 per cent of young people in prison had 'cognitive functioning

scores consistent with a possible intellectual disability, and 10 per cent met both IQ

4.47 National Disability Services cited a recent Victorian Law Reform Committee

report which found that 'anecdotal evidence and the limited statistical evidence that is

available strongly suggest that people with an intellectual disability or cognitive

impairment form a large and disproportionate proportion of offenders and victims of

4.48 The explanations given for the over-representation of individuals with

intellectual disabilities are varied. For example, the Advocacy and Support Centre

submitted that there may be some behavioural issues exhibited by people with

disabilities that brings them into contact with the prison system, such as 'poor impulse

control; lack of insight into offending behaviours; lack of self-control; lack of

knowledge around social norms/rules; and difficulties in learning and

4.49 The high rate of incarceration of individuals with an intellectual disability

could also be a result of a possible susceptibility to 'delinquent behaviour' due to

mental disabilities; vulnerabilities in court processes as a result of incomprehension;

particularly difficult for a person with an intellectual disability to communicate

instructions to legal representatives, or understand court processes, or the significance

4.50 Specifically, individuals with a complex cognitive disability 'broadly defined

as a mental health disorder with an intellectual disability' have a much higher rate of

early contact with the justice system than those with a single disability or without a

parole due to a lack of post-release accommodation with appropriate support. In

addition, prisoners with an intellectual disability have a higher average number of

4.51 Recidivism rates of this group are also uncharacteristically high with prisoners

suffering from an intellectual disability in NSW being 78 per cent more likely to

p. 15.

39

4.52 Another issue for individuals suffering from an intellectual disability is the

difficulty these individuals have during exchanges with law enforcement. The

Advocacy and Support Centre submitted as an example that 'a person with an

intellectual disability [is] more likely to admit to offences, including those offences

that they may not have committed, due to a desire to please an authority figure

(police) or a desire to conceal the fact they do not understand the questions being

4.53 Difficulties exist for law enforcement as well due to a lack of training to

identify individuals with signs of mental health issues or a cognitive disability.

NATSILS stated that it:

…often see the failure of police to deal with the mental illness and

cognitive/intellectual disabilities of a person who has come into contact

with the criminal justice system, for relatively minor offending, without

4.54 The absence of a procedural guide for law enforcement with regards to

cognitive disability indicates that these individuals are not necessarily diverted to

occasions when an individual with a cognitive disability has to be detained as there are

4.55 Legal Aid NSW noted that young people with a cognitive disability or mental

health issue are more likely to be placed in care as a consequence of their problematic

behaviour. Legal Aid NSW stated that the police and the justice system are

increasingly being relied upon in lieu of adequate behaviour management, especially

in relation to children with complex needs. For example, a common bail condition

imposed on children in out-of-home care is the condition to 'obey the directions of

carer'. As a result, children are reported to the police for breaching bail by carers and

are subsequently arrested for demonstrating the type of behaviour that, if they were

living in a functioning family environment, may have been dealt with without police

intervention. In addition, both care workers, using occupational health and safety

mandates, and parents have applied for apprehended violence orders (AVOs) against

young people as a way of dealing with their behaviour. Legal Aid NSW stated that

breaches are common because young people with cognitive and mental health

p. 21.

40

4.56 Many submitters commented on the representation of individuals suffering

early contact with the criminal justice system due to problematic linguistic

development during childhood, which results in poor written literacy and

communication, and subsequent poor education and employment outcomes. It was

noted that within the justice system, people with hearing loss are disadvantaged. They

may face more severe penalties if they cannot communicate effectively with police, if

they cannot participate or fully understand court proceedings or cannot understand

4.57 Hearing loss is particularly prevalent in Indigenous communities with over

half of Aboriginal and Torres Strait Islander children experiencing some form of

Strait Islander people suffer hearing loss at ten times the rate of non-Indigenous

4.58 The Anti-Discrimination Commission Queensland submitted that statistical

data on hearing loss was not available for those among the general prison population,

nor for the Indigenous prison population, however 'informed estimates suggest that the

4.59 Other submitters provided evidence of hearing loss in prison populations.

Juvenile Justice NSW referenced a survey conducted in 2009 that found that '18% of

young people [in custody] had mild to moderate hearing loss in one or both ears, with

that an investigation among inmates in the Northern Territory corrections facilities

found that more than 90 per cent of Aboriginal and Torres Strait Islander inmates had

4.60 Hearing loss can have a direct link to recidivism with an individual breaching

parole or bail due to miscommunication. NATSILS provided an example of this in its

submission:

…a client, who has an undetected hearing impairment, indicates that they

understand what has transpired and that they understand the conditions of a

41

bail or parole order when in fact they haven't actually been able to hear a

thing. Consequently, not being aware of their bail conditions, the client is

then released only to unknowingly breach the order and be remanded in

Inquiry into Hearing Health in Australia, expressed concern regarding the links

between hearing impairment and incarceration:

The committee is gravely concerned about the potential implications of

hearing impairment on Indigenous Australian's engagement with the

criminal justice system. Those most vulnerable are Indigenous people from

remote areas who do not have English as their first language, or indeed

who, due to early onset untreated hearing loss, have little means of

4.62 The Community Affairs Committee stated that any improvements in

Indigenous hearing health would have a subsequent positive impact on the reduction

4.63 The committee identified other disadvantaged groups during its inquiry,

including individuals with an oral-language impairment, who experienced difficulties

when interacting with the justice system.

4.64 Oral language impairment is a common factor in young male offenders, with

approximately 50 per cent having deficits in both comprehension and spoken

language. Associate Professor Pamela Snow and Professor Martine Powell submitted

that 'young people with more serious offence histories (i.e. involving interpersonal

Australia, May 2010, p. 147.

Australia, May 2010, p. 147.

5.1 This chapter canvasses the methodology and the objectives of justice

reinvestment as well as its implementation in overseas jurisdictions.

5.2 Justice reinvestment was initially developed in the United States as a means of

curbing spending on corrections and reinvesting savings from this reduced spending in

strategies that can decrease crime and strengthen neighbourhoods. The South

Australian Justice Reinvestment Working Group noted that 'the approach is based on

evidence that a significant proportion of offenders come from, and return to, a small

is provided for tailored programs in those communities to strengthen the community

and address the causes of crime to mitigate against individuals being caught up in the

criminal justice system. Those who have committed offences are diverted away from

prison using other forms of punishment and those likely to reoffend are prevented

from doing so through effective rehabilitation, parole supervision and after-prison

support.

5.3 Mission Australia stated that 'the rationale for justice reinvestment is that

diverting human and financial resources to disadvantaged communities and vulnerable

people to address the underlying causes of crime will produce better value for money

Professor Chris Cunneen, Australian Justice Reinvestment Project, commented:

…there was a clear conceptualisation that mass imprisonment affecting a

small number of communities was increasing the dysfunction within those

communities. So an underpinning to this was the need to shift mass

imprisonment towards community development. It has always had a very

strong community development focus, so that, when the savings occur, they

actually do represent some money going into those communities to

strengthen and build those communities. It is a very different approach to

dealing with crime from that of mass imprisonment. It is one that is built

Submission 90, p. 5.

4 Professor Chris Cunneen, Chief Investigator, Australian Justice Reinvestment Project,

Committee Hansard, 1 May 2013, p. 58.

44

5.4 The South Australian Justice Reinvestment Working Group concluded that 'if

properly implemented, Justice Reinvestment can reduce crime and imprisonment,

improve public safety and strengthen our most disadvantaged communities, all

5.5 Supporters of justice reinvestment note that it involves 'smarter' spending

rather than more spending: funding for future costs related to imprisonment, such as

new prisons, is diverted to community-based programs and services that address the

underlying causes of crime. Justice reinvestment does not advocate getting rid of

prisons, rather that detention is a measure of last resort for dangerous and serious

offenders. In addition, justice reinvestment does not aim to strip money away from

already underfunded prison services and programs. For example, in the US, additional

monies have often been shifted to fund both community and in-prison mental health

5.6 Another major characteristic of justice reinvestment is that it requires a

collaborative partnership between government and community. It aims to strengthen

communities and to include them in a collaborative process to address the underlying

cause of crime and imprisonment. The Law Council of Australia noted:

Justice reinvestment relies heavily on interactions between agencies at both

the state and local level. It also has a significant community-focus, seeking

"community-level solutions to community-level problems". It is these

aspects of justice reinvestment, along with its evidence-based approach and

focus on addressing and preventing the underlying causes of crime such as

unemployment and drug and alcohol abuse, that have given rise to the

growing support for justice reinvestment in recent years throughout the

5.7 Mr Mick Gooda, Aboriginal and Torres Strait Islander Social Justice

Commissioner, concluded:

I believe that Justice Reinvestment also provides opportunities for

communities to take back some control. If it is to work properly it means

looking at options for diversion from prison but more importantly, it means

looking at the measures and strategies that will prevent offending behaviour

in the first place. The community has to be involved and committed to not

only taking some ownership of the problem but also some ownership of the

solutions… I think we need to change the narrative from one of punishment

to one of community safety. Funding people to go to prison might make

people feel safer, but a far better way would be to stop the offending in the

45

5.8 Justice reinvestment involves advancing 'fiscally sound, data driven criminal

justice policies to break the cycle of recidivism, avert prison expenditure and make

demographic/justice mapping and analysis of data; development of options;

implementation; and evaluation.

5.9 The Aboriginal and Torres Strait Islander Social Justice Commissioner's

Social Justice Report 2009 stated that '[a] holistic analysis of the criminal justice

system is a key feature of the justice reinvestment methodology. Consideration is

given to policing, judicial systems, probation and parole, prevention programs,

Justice mapping provides the means to identify where offenders are coming from (and

returning to) by the collection, analysis and mapping of data about crimes,

convictions, imprisonment and parole.

5.10 Justice mapping is different from crime mapping. Crime mapping identifies

locations of high activity which may become the focus of increased policing.

Sara Hudson, in her monograph for The Centre for Independent Studies (CIS), noted

that crime mapping can have the effect of displacing criminal behaviour to other

locations rather than reducing overall offending. Justice mapping allows policy

makers to target the locations where offenders come from, and return to, so that

5.11 The justice data obtained is cross-referenced against indicators of

disadvantage and gaps in available services to help identify the underlying causes of

crime in these communities. Experience in the United States indicates that this type of

data and analysis was often lacking in jurisdictions before justice reinvestment was

5.12 The House of Commons Justice Committee, in its review of justice

reinvestment, identified the significant elements required to support this stage of the

justice reinvestment approach:

analysis;

Human Rights Commission, p. 16.

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 13.

p. 16.

46

5.13 Once communities or localities have been identified, options are developed

for decision makers. The options may provide initial savings to corrections or reduce

the number of people going into prison in the first place. The options to generate

savings in the United States have included changes in how technical matters such as

parole violations or bail matters are dealt with and providing community based

alternatives to imprisonment of non-violent crime.

5.14 Options to reduce offending are also identified. This allows decisions makers

to implement effective programs to curtail offending and to strengthen communities.

NATSILS commented that 'it is important to emphasise that this process involves

identifying savings that can then be reinvested and as such is a diversion or shifting of

5.15 Programs and services are generally focused on poverty, education, housing,

healthcare and public amenities. However, NATSILS noted that an important part of

this stage is the recognition that a one-size-fits-all approach is not appropriate and the

justice reinvestment plan for each community identified will need to be based on the

specific drivers of crime and the 'community assets' of that community. NATSILS

also emphasised that it is essential for government to partner with the community in

Reinvest NSW commented that justice reinvestment is not purely data-driven: 'the

experiences, perceived needs and capacities expressed by the community are

instrumental in developing tailored programs to address offending and, at the same

5.16 Just Reinvest NSW identified best practice characteristics of place-based

initiatives:

the community;

comprised of government departments, community organisations and

community leaders;

Report of Session 2009–10, Vol. 1, HC 94-1, p. 118.

Hansard, 1 May 2013, p. 57.

47

facilitator;

creating a shared vision for change, establishing effective governance, and

developing a justice reinvestment implementation plan;

community members and other stakeholders to input into decision making;

reinvestment initiatives;

challenges; and

5.17 The House of Commons Justice Committee also identified the significant

elements required to support this stage of the justice reinvestment approach:

policymakers;

the growth in the prison population and probation caseloads;

of alternative approaches to manage the growth in the prison population; and

5.18 Analysis of the options developed under stage two provides policymakers

with the level of costs which could be saved or avoided by adopting some or all of the

options identified for reducing the use of imprisonment. Plans are then developed to

reallocate the savings (all or part) to the targeted communities.

5.19 Under the justice reinvestment approach there is rigorous, ongoing evaluation

to measure the impact of reinvestment and the functioning of the criminal justice

system as a whole. This is a critical part of the justice reinvestment approach to ensure

that projected results and benefits are being achieved. Monitoring and evaluation must

ensure that the projected savings are being realised and that the reinvestment of these

funds is having the desired effect on offending and incarceration rates.

5.20 The House of Commons Justice Committee identified the elements of

effective evaluation as:

Report of Session 2009–10, Vol. 1, HC 94-1, p. 126.

48

expenditure saved or avoided; recidivism rates; and benefits to local

communities;

and the capacity of agencies to collect, record and monitor the data required;

projections; and

5.21 The United States has the highest incarceration rate of any country in the

world. While the US has only five per cent of the world's population, its prisons hold a

prison population has been 'tough-on-crime' policies. The Council of State

Government (CSG) Justice Center noted that 'these aggressive policies have in turn

drained critical state resources and produced dismal results in addressing the root

5.22 Justice reinvestment emerged at a time when US government and stakeholders

were acknowledging that the continued increase of already high incarceration rates

was not sustainable for government budgets nor was it improving public safety.

Justice reinvestment, with its emphasis on reducing prison population numbers and

the diversion of savings to support communities with high incarceration rates, was

seen as delivering two important aims: reduction in costs in the penal system and

interrupting the prison-community cycle.

5.23 It was recognised that data was fundamental to the planning and the delivery

of justice reinvestment approaches. The Bureau of Justice Assistance stated:

Justice reinvestment is a data-driven approach to improve public safety,

reduce corrections and related criminal justice spending, and reinvest

savings in strategies that can decrease crime and strengthen neighborhoods.

The purpose of justice reinvestment is to manage and allocate criminal

justice populations more cost-effectively, generating savings that can be

reinvested in evidence-based strategies that increase public safety while

holding offenders accountable. States and localities engaging in justice

reinvestment collect and analyze data on drivers of criminal justice

Report of Session 2009–10, Vol. 1, HC 94-1, p. 152.

49

populations and costs, identify and implement changes to increase

efficiencies, and measure both the fiscal and public safety impacts of those

5.24 The justice reinvestment strategy is being led by the agencies including the

Pew Center and the CSG Justice Center. The CSG Justice Center provides assistance

'where leaders have demonstrated bipartisan, inter-branch interest in justice

reinvestment, a willingness to provide access to data, and financial commitment to

Center provides technical assistance to states to analyse the factors driving high

incarceration rates so that governments can identify locations most in need of

reinvestment. Common issues that were identified in various states as leading to

increased rates of incarceration include unequal employment opportunities; lack of

access to substance abuse/mental health services in the community; and lack of

appropriate incentives/sanctions to encourage offenders to comply with the conditions

of probation/parole. Other factors were also identified as specific to certain states.

5.25 Development of reinvestment policies using savings from the state corrections

budget is undertaken. Common policies developed by states include diversionary

programs, substance abuse and mental health treatment programs, intensive

supervision programs, increasing access to parole reporting services, and increasing

employment opportunities. The CSG Justice Center encourages the use of risk

assessments to direct funding and services to those most at need.

5.26 The CSG Justice Center also ensures that policies are developed in a manner

that is consistent with the ethos of the justice reinvestment program. The 3-Step

Justice Reinvestment Process allows for states to develop specific solutions to specific

problems within their state, but also allows for evaluation and comparison of results

between states. The state-level approach allows states to take responsibility for the

5.27 There are now 27 states which have participated in the justice reinvestment

initiative under the auspices of the Center and approximately 18 of those states have

enacted justice reinvestment legislation for the purpose of stabilising corrections

5.28 A feature of justice reinvestment is that it does not result in the same 'onesize-

fits-all' policies being adopted. However, it has been noted that 'the states that

have pursued such an initiative all share a common result: reduced spending on

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 10.

50

corrections, with the averted costs or savings reinvested in strategies to increase public

5.29 The following discussion canvasses the experience of the justice reinvestment

approach in Texas, Kansas and Pennsylvania.

5.30 Despite having spent $2.3 billion between 1983 and 1997 to increase the

number of new prison beds, by 2007 Texas was experiencing increasing pressure on

its prison system. The prison population exceeded capacity by 3,000 individuals and

was projected to increase by 14,000 people within five years. To meet the demand for

new prison places, Texas planned expenditure of $523 million to build additional

prisons and an extra $184 million in emergency contracted capacity to rent detention

5.31 Mapping of the prison population was undertaken to identify the communities

where offenders were coming from. This included five counties which accounted for

more than half of the people imprisoned at a cost over half a billion dollars. It was also

found that 50 per cent of former prisoners returned to neighbourhoods that accounted

5.32 Analysis by the CSG Justice Center pointed to factors which had contributed

to the growth in the prison population:

services resulting in increasing numbers of people waiting for space in

treatment programs or facilities; and

risk levels and severity of the crime.

5.33 In May 2007, Texas enacted a justice reinvestment package of criminal justice

legislation. The new policies included an expansion of in-prison and communitybased

treatment and diversion programs to reduce rates of re-offence and revocations

to prison. These policies included new beds in half-way houses to divert probation and

parole violators away from prison or to assist in re-entry. Policies were also directed at

parole and probation practices and included establishing a maximum limit for parole

caseload to ensure adequate supervision and establishing incentives for counties that

created progressive sanctioning models for probation officers to respond effectively to

violations and supervision.

29 The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism,

Crime and Corrections Spending, January 2011, p. 55.

30 The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism,

Reinvestment/Causes of Crime, November 2011, p. 15.

p. 20.

51

5.34 The outcome of these policies has been a decline in the rate of recidivism for

people on community supervision: between 2006 and 2009, the parole revocation to

prison rate decreased 29 per cent and the probation revocation to prison rate declined

by 3 per cent. The impact on prison population has been significant with the prison

population stabilising and a projected minimal future growth. Between January 2007

and December 2008, the Texas prison population increased by only 529 individuals

rather than the projected increase for the period of 5,141 individuals. The prison

population decreased by 1,125 individuals between December 2008 and August 2010.

The introduction of justice reinvestment policies have been cited as the reason for the

stabilisation of the prison population which is expected to remain below operating

capacity through to 2015. This is a significant outcome given the initial projected

growth in the Texas prison population by approximately 17,000 people over five years

from 2007.

5.35 Texas recorded savings of $443.9 million in 2008–09 including savings from

the cancellation of plans to build new prison units. Savings were reinvested in

treatment and diversion programs including $241 million to expand the capacity of

substance abuse, mental health, and intermediate sanctions facilities and programs that

focussed on people under supervision who would otherwise likely be revoked to

prison. In addition, Texas reinvested a portion of its savings in the Nurse-Family

Partnerships Program, a nationally recognized model that pairs nurses with first-time,

5.36 In 2007, it was predicted that the prison population in Kansas would increase

by 22 per cent by 2016. To rein in this growth, Kansas legislators decided to develop

and implement a justice reinvestment strategy.

5.37 Analysis by the CSG Justice Center identified the factors driving the prison

population growth as probation and parole revocations. The majority of revocations

were for conditions violations such as alcohol or drug use. In addition, 58 per cent of

people revoked on probation supervision demonstrated a need for substance abuse or

mental health treatment. Most people were released from prison without participating

in programs which could reduce their risk of reoffending including substance abuse

treatment and vocational education.

5.38 In 2007, legislation in Kansas was introduced which provided for:

programs to design local strategies that could reduce revocations by 20 per

cent;

educational, vocational, and treatment programs prior to release; and

32 The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism,

Crime and Corrections Spending, January 2011, pp 56–59.

52

offenders.

5.39 Kansas also implemented strategies to increase public safety. The New

Communities Initiative brought together state, county, community and city leaders to

design a comprehensive set of strategies aimed at addressing the needs of a single

neighbourhood in Wichita which was identified as having a high level of

incarceration. This neighbourhood was a high user of food stamps, unemployment

insurance and other welfare measures. The strategies were aimed at addressing

children and youth; behavioural, mental and physical health; adult education and

economic viability; safe and secure communities; and housing.

5.40 Following the implementation of the legislation, Kansas experienced a decline

in the number of people, both probationers and parolees, revoked to prison from

community supervision. Between 2007 and 2010, the prison population increased by

incarcerations increased and are expected to continue to increase. The increase has

been linked to the defunding, in the wake of the global financial crisis, of many of the

programs introduced to reduce reoffending. In addition, new admissions have also

contributed to the increase. These new admissions involve 'off-grid' offenders: those

offenders whose crimes are considered too serious to be eligible for automatic release

on parole once their minimum term is served, minus any 'goodtime' earned by way of

linked to the rapid increase in the 'off-grid' category of inmates. The Kansas

legislature is now looking at options for alternative measures to turn around their

5.41 Like other US states, Pennsylvania's spending on its prison system increased

substantially between 2000 and 2011 from $1.1 billion to $1.9 billion, an increase of

76 per cent while the number of prisoners increased by 40 per cent. From 2007,

funding received by local law enforcement projects from both the federal and state

government decreased by 87 per cent.

5.42 In 2012, in response to the adverse impact on the state's budget of growing

costs of the prison system and the negative effect of budget cuts on local law

enforcement, the state introduced legislation containing a framework based on a

justice reinvestment approach. The legislation aimed at reinvesting a portion of the

savings generated by more effective corrections and parole policies in strategies to

assist local law enforcement in crime prevention, provide more resources to probation

33 The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism,

Crime and Corrections Spending, January 2011, pp 60–62.

34 Jessica's Law provides for the mandatory sentencing of 25 years in prison and lifetime

electronic monitoring of adults convicted of sexual acts against a victim less than 12 years old.

53

departments, support crime victim services and expand the utilisation of risk

assessment.

5.43 The development of the framework was assisted by the CSG Justice Center

and three policy priority areas were identified:

– one third of individuals in prison were found to have less than one year to

serve on their minimum sentence, thus making it difficult for them to engage

in treatment programs and for the timely review of cases by the Parole Board.

This was addressed by allowing those prisons convicted of two lowest-level

misdemeanor offence categories to serve a local sanction rather than a prison

sentence. The aim was to reduce the people admitted to prison on very short

sentences by 30 per cent by 2017;

Pennsylvania prisoners must be considered for parole after reaching their

minimum sentence. However, with the increasing prison numbers, review of

parole cases was backlogged. It was found that this situation was exacerbated

by lack of coordination between agencies. Policy options for the parole

system aimed at increasing the number of parole cases reviewed each month

by 20 per cent by 2015; and

high need individuals – while the state was providing over $100 million each

year to community-based residential programs to reduce recidivism, these

programs were not targeting individuals on parole who could benefit most.

Policy options were identified with the aim of better targeting these programs.

5.44 The implementation of the policy framework is expected to increase public

safety and generate up to $253 million in cost savings by 2017. The Pennsylvania

legislation requires that a portion of the savings be reinvested in public safety

improvements over the next six years, for example, police officer training, department

accreditation and competitive grants for data-driven law enforcement strategies. Other

initiatives include grants to county probation and parole departments to implement

evidence-based practices, improvements to victim notification and state-wide

5.45 Similar to the US, the United Kingdom has experienced an increase in its

prison population despite a 42 per cent decline in the amount of crime being reported

since 1995. This growth was attributed to the creation of 3,000 new offences by the

history of continued investment in the prison system in a bid to keep up with the

p. 26.

54

increasing demand for space. However, the increasing expenditure on prison

infrastructure and the impact of the global financial crisis has resulted in the UK

considering a justice reinvestment approach.

5.46 In January 2010, the Justice Committee of the House of Commons published

direction of policy and spending on the criminal justice system in the UK. The Justice

Committee stated that there were three reasons for undertaking the inquiry:

public funding operating under increasing pressure but the different parts of

the system did not seem to be pursuing the same goals or making cogent

contributions to an agreed overarching purpose;

predicted rise in the prison population, is to provide more prison places rather

than to seek to address the root causes of growth; and

objectives, remits and funding—could take more effective action to reduce

both the number of people entering, and re-entering, the criminal justice

5.47 The Justice Committee identified a range of factors contributing to the rate of

incarceration including social exclusion (particularly among young people), mental illhealth,

drug and alcohol dependency, and low levels of literacy and numeracy. It

concluded that a justice reinvestment approach offered potential solutions to the

challenge of high incarceration rates. In its report, the Justice Committee presented

what it called a blueprint for the future implementation of justice reinvestment in

England and Wales. However, it noted that 'a piecemeal approach would be unlikely

5.48 Following the Justice Committee's report, a number of pilot programs have

been established in the UK, including four youth justice reinvestment pathfinder pilots

5.49 The Commonwealth Attorney-General's Department commented that the

justice reinvestment approach in the UK has had a much greater focus on reducing

offending behaviour and improving community safety rather than focussing primarily

on incarceration. As a consequence, the savings in the UK from justice reinvestment

approaches are not expected to be as large as in the US. The tailored strategies

adopted in the UK involve funding partnerships across government, the nongovernment

sector and the private sector in, for example, the form of social impact

Volume 1, December 2009, p. 5.

55

bonds. This funding is then invested in community development and community

5.50 ALHR also noted that England has various pilot programs adopted at local

level, including social investment schemes. These involve raising funds from

investors, shifting financial risk from the government and providers to investors

(investors receive returns on their investment depending on the reduction in

reoffending). ALHR commented that this approach makes it difficult to measure

outcomes accurately in determining returns to investors, and difficult to ensure that

local communities will have the flexibility to use funding as they see fit. In England

there are also incentives for private prison operators who can demonstrate a reduction

in the rate of offending.

5.51 Incentives for local justice reinvestment pilot programs have also been used.

Where local authorities can demonstrate reductions in reoffending rates, the savings

are shared between the Ministry of Justice and local areas. Various strategies have

been used by local authorities such as intensive support programs for recently released

offenders; providing substance abuse; mental health and housing services; and

building partnerships between offenders and key stakeholder. Funding for these

programs is often dependent on the local authority being able to demonstrate a

5.52 In 2011, the UK Justice Minister sought to give courts greater capacity to

make non-custodial sentences. As a consequence, three prisons, with a total of 800

5.53 The Law Council of Australia commented that the UK Government is

currently in the process of looking at ways that it could comprehensively reform its

criminal justice system with the Prime Minister, Mr David Cameron, stating that the

Government must 'think hard about dealing with the causes of crime and focus on the

implementation of initiatives that focus on preventing crime in the first place'. The

Law Council of Australia noted that '[w]hilst a justice reinvestment approach to

criminal justice does not appear to have been explicitly endorsed by Mr Cameron to

date, it may be that aspects of this approach will be adopted by the British

41 Mr Kym Duggan, First Assistant Secretary, Social Inclusion Division, Attorney-General's

Submission 113, p. 11.

56

5.54 Supporters of a justice reinvestment approach pointed to successes in the US

with the stabilisation, and in some cases decrease, of imprisonment rates, particularly

in Texas. Significant cost savings have accrued in many jurisdictions and these

savings have been used to provide services in targeted communities.

5.55 There are several key factors of the justice reinvestment approach common

across US jurisdictions. First, there has been bipartisan support at the political level

for a justice reinvestment approach. Secondly, central organisations, principally the

CSG Justice Center, have provided significant guidance and support for data

collection, analysis and policy development. Importantly, the CSG Center has enabled

strategies have been implemented that take into account and address the specific needs

of each location rather than being a one-size-fits-all approach.

5.56 However, recent evaluations of justice reinvestment in the US and evidence

received by the committee pointed to some issues of concern.

5.57 In a paper published in April 2013, an evaluation was undertaken of the

Justice Reinvestment Initiative] has played a significant role in softening the ground

and moving the dial on mass incarceration reform, it is not an unmitigated success

story; the picture is complex and nuanced'. Further, the paper asserts that the Justice

Reinvestment Initiative has moved away from its original goal of seeking to reduce

the number of prisoners and is now focussed on reducing the growth rate of prison

numbers. Investment has not been steered toward the communities most weakened by

aggressive criminal justice policies.

5.58 Five major reasons were identified for the failure of the Justice Reinvestment

Initiative in the US to achieve the dual objectives of sustained reductions in state

correctional populations and stronger, safer communities:

that will not significantly reduce admissions and lengths of stay, especially for

people convicted of serious and violent crimes;

state-level reforms, eschewing and sometimes excluding other important state

and local constituencies;

central organisations did not assist in building capacity at the state and local

45 National Centre for Indigenous Studies and Indigenous Offender Health Capacity Building

57

level to assume responsibility for monitoring and evaluating implementation

and outcomes for genuine justice reform over the long-term;

abandoned as a key element and goal with the result that resources are

vulnerable to the claims of other criminal justice agencies including increased

investment in law enforcement; and

that discourage and inhibit officials at all levels of government from pursuing

5.59 The paper called for a revamped, reenergised justice reinvestment program

and recommended a justice reinvestment approach that would:

Reinvestment Initiative, that is, significant reductions in all forms of

incarceration and correctional supervision, and reinvestment in high

incarceration communities;

levels throughout the planning, legislating, implementation and reinvestment

process; and

5.60 Issues of concern with the implementation of justice reinvestment in the US

and UK were also raised in evidence received by the committee. These concerns

included the lack of a clear definition of justice reinvestment, lack of rigorous

evaluation of its success and the focus on immediate upfront savings through basic

justice reform.

5.61 The Australian Justice Reinvestment Project commented on the lack of

academic or critical treatment of justice reinvestment and stated that as a consequence

'caution is warranted'. The Australian Justice Reinvestment Project and other

submitters pointed to comments by researchers Professor Clear and Dr Shadd Maruna.

Professor Todd Clear noted that many of the details of justice reinvestment are 'left up

for grabs'. Further, the success of justice reinvestment strategies in the US has been

achieved 'despite the fact that it is an "idea in progress rather than a full-fledged

strategy"'. In addition, Dr Maruna argued that the concept is only hazily defined, is not

based on a 'strong empirical foundation' and does not really qualify being a proper

p. 5.

p. 5.

58

5.62 Ms Melanie Schwartz, Australian Justice Reinvestment Project, went on to

comment that:

While the application of justice reinvestment strategies has led to

significant savings in costs in corrections in a number of US states, the

implementation of these strategies has largely not yet been subject to

thorough examination. Reasons for caution from the US experience include

questions around: what can maximise the chances of sustained rather than

only an initial drop in prison numbers; whether fiscal savings are actually

being substantially committed to community reinvestment; and which

programs or organisations are being funded under these reinvestment

5.63 The Law Council of Australia also noted that commentators have adopted a

more cautious approach to justice reinvestment as 'true correctional savings have been

difficult to document and even more problematic to capture', and that the 'impact on

offending or recidivism from the reinvestment of these savings into community-based

view, commenting that 'the impact on offending or recidivism from the reinvestment

of these savings into community-based crime prevention strategies will take a lot

5.64 A further issue noted is that US states have embraced strategies which address

the punitive nature of the justice system without a corresponding reinvestment to

address the underlying causes of crime in targeted communities. Strategies aimed at

reducing incarceration include changes to probation and parole policies. Given the

large numbers imprisoned in the US, small changes to criminal justice policy have

In addition, custodial sentencing practices in the US meant that there was a large

group of offenders fit for diversion from custody already available in jurisdictions

where justice reinvestment was introduced.

5.65 The difficulties of reinvesting those immediate savings for long term benefits

were noted by the Juvenile Justice NSW. It stated:

The same concept of reducing incarceration costs and 're-investing' in

diversion services or other services that may reduce future growth of

incarceration, is possible for juveniles. However, as the juvenile justice

system is smaller, there are fewer funds to save and reinvest. As adult

Hansard, 1 May 2013, p. 57.

Submission 46, p. 3.

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 14; see also The Centre for

59

correctional systems represent a much larger proportion of the states'

5.66 Another aspect of the justice reinvestment approach noted by Professor David

Brown of the Australia Justice Reinvestment Project was that many of the strategies in

the US that go under the label of justice reinvestment are 'just basic criminal justice

reform'. For example, sentencing reform which tries to move away or mitigate the

effects of mandatory sentence regimes, and changed parole requirements which aim to

improve the high rates of revocation of parole through provision of more parole and

probation officers. Professor Brown concluded that '[q]uite a number of jurisdictions

there have moved to carry out criminal justice reforms that could have been carried

5.67 The concentration on 'up-front' savings from changes in corrections has been

criticised as being only a partial implementation of the justice reinvestment approach.

The Victorian Drug and Alcohol Association, for example, noted that in West Virginia

justice reinvestment strategies appear to centre on working with those populations

already at risk of imprisonment and appear to be lacking in terms of prevention and

5.68 Another issue is that even though prisons have been closed down or not built

in some states, the true correctional savings have been difficult to document and even

more problematic to capture. CIS noted comments by US criminologist Professor

Todd Clear who stated that in 'every one of 12 locations where justice reinvestment

work has been carried out, the correctional budgets have continued to grow'. This

means that unless funds saved from reducing incarceration are genuinely redirected,

5.69 Flat Out voiced a similar concern, stating that while prisons may have closed

in the US, correctional service budgets have continued to grow. Flat Out commented

that it is critical that policies such as justice reinvestment address not only the growth

of prisons, but of the criminal justice system. Flat Out concluded 'tinkering at the

edges of a system that is failing to reduce rates of imprisonment or the

overrepresentation of marginalised communities cannot address structural

5.70 Professor Clear also stated that a central problem with current justice

investment strategies has been the tendency for the savings in corrections to be

redirected to other government social services. He commented the while these services

are aimed at reducing failure rates and thus costs, this does not align with the original

56 Professor David Brown, Chief Investigator, Australian Justice Reinvestment Project,

Committee Hansard, 1 May 2013, p. 61.

60

aim of justice reinvestment, that is, the rebuilding of community resources, both

5.71 A further factor pointing to the need for caution was provided through the

recent experience in Kansas. The introduction of Jessica's Law has seen prison rates in

Kansas increase after an initial decrease following the implementation of a justice

reinvestment approach. The NJCEOs commented that this 'demonstrates the effect that

one-off legislative decisions can have on long term, trend changing justice

reinvestment/causes of crime strategies'. While there is evidence of success with a

justice reinvestment approach, it is as vulnerable to external influences (for example,

economic and legislative) as any other criminal justice approach. The NJCEOs

concluded:

The evidence and data which inform justice reinvestment/causes of crime

approaches increase their likelihood of success however, the ability of these

strategies to sustain improvements over time requires a long term

5.72 Similarly, the Women in Prison Advocacy Network noted that some

commentators have questioned whether the positive reforms introduced by justice

reinvestment initiatives would still remain in place in the US, if the US economy were

5.73 The committee received less evidence on the evaluation of justice

reinvestment in the UK. However, ALHR noted that there has been a more piecemeal

approach in the UK and accurate evaluations of effectiveness are unavailable because

been adopted in the UK, it is too early to say whether it is achieving its aims.

However, it was noted that UK criminologists have already commented that justice

reinvestment is being used primarily to provide improved governance of rehabilitation

programs, and that these programs are running in parallel with the continued growth

5.74 Despite some concerns about its implementation, the success of the justice

reinvestment approach in overseas jurisdictions, principally the US, is clear. However,

the committee is conscious that the direct importation of an approach from the US is

problematic and, indeed, may fail if not appropriately adapted to Australian

conditions. The US has a significantly different justice and corrections system,

political landscape and prisoner demographic, particularly in relation to location.

61

5.75 That being said, the committee considers that there is much that appeals about

the justice reinvestment approach particularly its use of comprehensive data collection

and rigorous analysis to create all-inclusive, cohesive program options that target the

determinants of crime and thereby reduce offending and spending on prison. As

Professor Clear noted, 'given the activity to date, justice reinvestment is an idea to

6.1 Despite some concerns with the implementation of justice reinvestment in the

US, the great majority of submitters supported a justice reinvestment approach for

Australia. In particular, it was noted that a justice reinvestment approach could benefit

Indigenous communities as a way of containing and reversing the very high

incarceration and recidivism rates of Indigenous peoples.

6.2 As outlined in the committee's discussion on imprisonment in Australia, over

the last 30 years there has been substantial growth in rates of incarceration. Drivers to

that growth are well identified and include poor educational attainment, high

unemployment, homelessness, and changes to justice policies and practices such as

sentencing and remand. Australia has also seen an increase in the over-representation

of disadvantaged groups in the justice system.

6.3 As a consequence of the growth in imprisonment rates, both economic and

social costs have increased. Governments across Australia are now facing significant

expenditure for building new prison facilities and to provide services to prisons, courts

and the police. The operating cost of the prison system alone is approximately

$3 billion per year. Greater reliance on welfare services adds to these costs. The

community also endures significant economic costs through crime and loss of income

for those imprisoned. The social costs of imprisonment in Australia are difficult to

estimate but arise from the disintegration of families, victim trauma and the

undermining of communities. Mr Robert Tickner, Australian Red Cross, commented:

…the most important thing about this investment in communities, in the

causes of crime and in the underlying issues which are the dominant

shaping of the coterie of our prison population is the lost lives of those

people, who really are almost statistically doomed from the time they are

born to interact with the criminal law. I think all of us as Australians

understand there is a place for prisons—of course, there is—but there are

massive numbers in those prison populations who should never have been

there and whose lives are irredeemably damaged by that process,

particularly in the case of young offenders. It is economic lunacy; but, more

importantly, it is a tremendous loss of human potential. People die young.

They are…irredeemably damaged by the interaction with the prison

processes in too many cases. Some lucky ones make it through but the

evidence shows that the level of reoffending is as high as 55 per cent.

Something like 39 per cent of people who are released are back there within

2013, p. 29.

64

6.4 Submitters commented that Australia's justice system and its reliance on

imprisonment as a deterrent has failed. The Prisoners' Legal Service Inc., for example,

stated that '[i]t is hard to imagine a solution to crime that is more expensive and more

rates as an example of the failure of the justice system: in the Northern Territory, very

high numbers of incarcerated offenders return to the prison system within two years of

6.5 The Anglican Diocese of Brisbane submitted:

The current approach arguably fails to acknowledge our complex world, in

which public safety is not assured by incarceration alone. In this respect, the

rehabilitative function of the criminal justice system has become secondary,

the impacts on families and communities obscured and preventative

6.6 Other jurisdictions have recognised not only the failure of imprisonment to

address rising crime rates but also that governments can no longer continue to support

a highly expensive and ultimately ineffective penal system. Professor Clear

commented that 'over the past decade, a combination of political shifts, accumulating

empirical evidence, and fiscal pressures has come together to make downsizing

has emerged as one solution.

6.7 The following discussion canvasses the benefits of a justice reinvestment

approach in Australia, particularly for Indigenous communities and the emergence of

support for justice reinvestment. The introduction of a justice reinvestment approach

in Australian would not be without its challenges. These are discussed in the following

chapter.

6.8 The overwhelming majority of submitters supported the implementation of a

Queensland, for example, commented that:

Justice reinvestment presents an opportunity to interrupt the cycle of

migration of communities to prison and back again, and to arrest the ripple

3 See for example, Central Australian Aboriginal Family Legal Unit Aboriginal Corporation,

Submission 32, p. 3.

65

6.9 The support for justice reinvestment centred around the development of

measures and policies directed at both the individual and at communities that produce

significant numbers of offenders. Benefits accrue to an individual but also to

communities through the identification of the drivers of crime in the targeted,

communities. This serves to both prevent offending in the first place as well as

reoffending once an individual returns to the community from a period of

imprisonment. In this way, justice reinvestment isn't just about individual offenders

but is also about providing a benefit to the wider community that they come from.

6.10 It is a move away from a punitive approach to criminal justice for certain

crimes with an evidence-based approach to the provision of alternative programs.

Ms Priday, AHRC, stated:

…we know there is a lot of research around deterrence, and things that are

very strict, draconian punishments do not tend to be a deterrent for people.

They might take people off the streets for a short period of time, but they

are not necessarily going to get back and address those root causes of

offending. That is where I see justice reinvestment coming in. It is going to

address those things at the front end through building stronger communities

and working with the community to find out what they think needs to occur

6.11 In addition, it was highlighted that strengths of the justice reinvestment

approach are the collection and analysis of data to inform decisions about how and

where best to allocate public funds to reduce crime and its strong emphasis on

communities and individuals as well as appealing to a wide range of political

Sisters Inside believes that justice reinvestment would have a significant

positive effect on our wider Australian social fabric. It would redirect

expenditure to areas that help, rather than harm, individuals, families,

communities and society – in both the short and long term. The challenge

will be to move beyond aspirational strategies and targets alone, and

6.12 A further benefit of a justice reinvestment approach was noted by the Public

Advocate for Queensland who commented that it aligns with the national social

inclusion agenda:

The Australian Social Inclusion Board acknowledges the destructive effect

of social inequality and exclusion on the Australian community. Through

its early intervention approach, justice reinvestment provides the

Hansard, 1 May 2013, p. 2.

66

opportunity to make fundamental changes within communities and provide

6.13 Mr Jonathon Huynor, NAAJA, commented that justice reinvestment focusses

on solutions:

The value of the justice reinvestment approach and model is that it really

encourages us to get real about what the solutions are and to recognise that

they are systemic ones. It is not going to be a matter of simply spending a

million dollars here and a million dollars there on youth programs or on

alcohol rehabilitation programs or the like. Those things are important parts

of it but the underlying social disadvantage and community issues are

6.14 In the US, cost savings have been seen as a major benefit of the justice

reinvestment approach. Some submitters, for example, the National Association of

Community Legal Centres argued that while the benefits other than cost savings are

the primary reasons for implementing a justice reinvestment approach, there is also an

economic argument. First, justice reinvestment is cost effective: it does not require

additional funding, merely a reallocation of money that has been already assigned to

corrections. Because of its evidence-based approach, it ensures that funding is spent

argued that savings arise from the implementation of community programs which are

reinvestment approach ensures that taxpayers receive a better 'bang for their buck' in

regard to government spending on the justice system. It would ensure a cost-effective,

fiscally sound approach to justice spending that prevents wastage on ineffective

6.15 Submitters pointed to significant savings that can be made in Australia across

prison for the Northern Territory was expected to cost some $495 million. On current

projections the new prison will be 83 beds short when it opens in 2014 and the

decrease in future demand for prison beds in the Northern Territory would lead to

significant savings.

13 Mr Jonathon Hunyor, Principal Legal Officer, North Australian Aboriginal Justice Agency,

Committee Hansard, 1 May 2013, p. 13.

18 Mr Jonathon Huyor, Principal Legal Officer, North Australian Aboriginal Justice Agency,

Committee Hansard, 1 May 2013, p. 8.

67

6.16 Smart Justice for Young People also noted that prison expansion is underway

in Victoria to cope with unprecedented population increases. It is predicted that

Victoria's prison system will still fall 1,400 beds short of the required capacity by

2016. Smart Justice for Young People went on to comment that this will result in a

significant cost for the corrections system and have detrimental effects on other areas

of the economy. It concluded that 'implementing a justice reinvestment scheme in

Victoria and halting any further prison construction would release hundreds of

6.17 In South Australia, the South Australian Justice Reinvestment Working Group

noted that plans for a $750 million new super prison have been shelved because of a

lack of funding. However, a benefit of a successful justice reinvestment program

would be that the new facility would not be required, or not to the extent previously

6.18 While it was acknowledged that most of the benefits accrued from justice

reinvestment would go to the states and territories which are responsible for

corrections and law and order, submitters pointed to the longer term benefits for the

Commonwealth. The Noetic Group, for example, pointed to the increased

participation and productivity of individuals who are diverted from the justice system

6.19 A further significant benefit for the Commonwealth is through the reduction

of Indigenous over-representation in the justice system. Noetic Group noted that

according to the Productivity Commission, governments spend some 5.83 times more

on Indigenous people for public order and safety. Reducing the need for services

related to family dysfunction and the consequences of incarceration will assist in

reducing government expenditure spent on Indigenous people annually. This was

6.20 The emphasis on strengthening communities was supported by submitters as a

6.21 The Anti-Discrimination Commission Queensland noted the comments in the

Social Justice Report 2009 that the process of decarceration through community

capacity building 'becomes mutually reinforcing; crime prevention decreases

68

imprisonment; and community engagement strengthens the community so the

6.22 Justice reinvestment programs direct funding at services and strategies that

combat crime, violence, health problems, homelessness, drug and alcohol abuse and

disadvantage in communities. It was noted that by addressing the causes which

perpetuate disadvantage, this approach builds social capital and contributes to making

stated:

…the impact of a successful translation of JR into the Australian context

would provide welcome benefits to the high stakes communities which it

targets.

JR is ultimately concerned with increasing functionality and capacity in

disadvantaged communities, through the rationalisation and reinvestment of

corrections spending, and thus understanding the potential for the adoption

economic fabric in Australia.

Effectively implemented, JR may improve prospects for young people

through early intervention, (a healthy start to life) and help families and

individuals live healthy, productive and fulfilling lives particularly in the

6.23 A significant benefit seen by supporters of a justice reinvestment approach is

that it focussed on local solutions and community-led initiatives. It is not a one-sizefits

all approach. As Professor Cunneen noted, the issues in Papunya, Northern

Territory, will not be the same as Blacktown in Sydney: 'It really is a more precise

6.24 A community focussed approach also means that decision makers can draw

on the infrastructure in local communities and utilise the knowledge and resources of

existing organisations and services. It will also assist in building service capacity in

rural and regional Australia as well the capacity of NGOs to meet the needs of young

6.25 The National Association of Community Legal Centres noted that

community-supported solutions have a greater chance of success and community

28 Professor Chris Cunneen, Chief Investigator, Australian Justice Reinvestment Project,

Committee Hansard, 1 May 2013, p. 60.

69

ownership helps to avoid the stigma often associated with outside providers. This will

6.26 The benefits of justice reinvestment to address the over-representation of

Indigenous people in prisons was highlighted by many submitters. Mission Australia

commented that justice reinvestment 'provides a practical, meaningful and effective

way to address the extreme yet increasing over-representation of Aboriginal

6.27 The AHRC also noted that 'to date the thinking around justice reinvestment in

Australia has been in relation to Aboriginal and Torres Strait Islander communities'.

The AHRC commented that there are 'persuasive arguments' for trialling justice

reinvestment in Aboriginal and Torres Strait Islander communities given the high

levels of Indigenous over-representation in prison and the disadvantage faced by these

and Torres Strait Islander young people are 35 times more likely to be in detention,

and Aboriginal and Torres Strait Islanders are 14 times more likely to be in prison.

The Indigenous reimprisonment rate, 66 per cent within 10 years, is much higher than

the retention rate for Indigenous students from years 7 to 12 of high school, at 46.5 per

cent, and higher than the university retention rate for Indigenous students, which is

below 50 per cent. Ms Priday concluded '[i]n other words, Indigenous people are more

likely to be returned to prison than they are to be retained at either high school or

6.28 When there are high crime rates and a high proportion of community

members in prison at any one time, a 'tipping point' is reached where communities are

weakened, creating the conditions for further crime. Professor Cunneen observed:

The argument in relation to justice reinvestment is that you can pour as

much money as you like into health or education but, while you are pulling

out of that community large numbers of men and women, the destructive

effect of imprisonment undermines any other positive aspects that may be

achieved through the funding of health or education services. So that is a

very strong argument that has been put underpinning justice reinvestment—

that the large numbers of imprisonment from relatively small communities

6.29 The ALRC commented that in the future, this is only going to get worse, with

the Indigenous population being amongst the youngest and fastest growing in our

Hansard, 1 May 2013, p. 2.

34 Professor Chris Cunneen, Chief Investigator, Australian Justice Reinvestment Project,

Committee Hansard, 1 May 2013, p. 61.

70

country. As a consequence, 'efforts to close the gap will be undermined if we continue

6.30 It was noted that, within Indigenous communities, there was 'a real appetite'

that Indigenous leaders have been calling for a justice reinvestment approach for some

time and noted the Aboriginal and Torres Strait Islander Social Justice Commissioner

Social Justice Report 2009. The Just Reinvest NSW campaign found that it had an

'incredible response—an engaged and informed response—from communities and

their leaders about this policy being something they want to step into, that they choose

6.31 The principles of justice reinvestment that make it attractive to supporters of

its trialling in Indigenous communities include:

6.32 As justice reinvestment focusses on locations that produce high numbers of

prisoners, submitters argued that is it particularly suited for Indigenous people and

communities. Submitters pointed to the high concentration of offenders in Indigenous

communities. For example, in 2007–08, 72 adults from the remote Central Australian

community of Papunya were serving time in Northern Territory prisons, of a total

also commented that 'the reality is that if we were to map the locations with the

highest concentrations of offenders, many of these locations also have very high

Hansard, 1 May 2013, p. 2.

Hansard, 1 May 2013, p. 2.

38 See for example, Ms Emilie Priday, Senior Policy Officer, Australian Human Rights

71

6.33 While Aboriginal and Torres Strait Islanders remain so over-represented any

meaningful action to reduce overall imprisonment and reduce spending should be

targeted at these communities.

6.34 It was noted that Indigenous communities are extremely diverse. A justice

reinvestment approach, with its emphasis on data gathering and analysis of the drivers

of crime to develop appropriate options, can take into account this diversity. Through

6.35 Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Mick

Gooda, has supported a justice reinvestment approach as it 'provides opportunities for

some communities to take back local control...to not only take some ownership of the

6.36 Other submitters also pointed to benefits of a community focussed approach

where services are owned, controlled and operated by the local Indigenous

community. The characteristics of justice reinvestment align well with notions of selfdetermination

and principles for working with Aboriginal and Torres Strait Islander

peoples. In addition, the goals and principles of key policies including the National

Indigenous Law and Justice Framework and the Closing the Gap Initiative also have a

community focus. It was also noted that these policies emphasise community

6.37 A characteristic of many Indigenous communities is the high level of

disadvantage. Disadvantage is a key issue which justice reinvestment strategies can

attempt to address. Strategies aim to alleviate community disadvantage and strengthen

community capacity by investing in housing, education, health services and

provide funding for these programs.

6.38 Submitters saw particular benefits for children and women in Indigenous

communities of a justice reinvestment approach. By reducing offending and

imprisonment justice reinvestment would reduce the number of children with an

incarcerated parent and thus prevent the harm associated having a parent in prison. It

would create healthier families and children if both parents were available to provide

care. This has potential not only to reduce the number of children who enter the child

72

6.39 The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation

also argued that a justice reinvestment approach is particularly suited to tackling the

issue of Indigenous family violence because of its focus on community-based

initiatives, community disadvantage, preventative and therapeutic programs, and its

6.40 For the individual, the benefits of justice reinvestment can be profound. In the

first instance, it aims to take offenders who do not pose a risk to society out of the

corrections system. There is ample evidence that time spent in prison often has a

harmful effect on those who are imprisoned and prisoners returning to society often

Association of Community Legal Centres also commented that the use of communitybased

programs has the potential to discourage recidivism and reduce the prison

population, particularly of overrepresented groups in the criminal justice system

including Aboriginal and Torres Strait Islander peoples and people experiencing

6.41 It was noted that there will be improved long term outcomes for individuals

who are diverted from initial, or ongoing, involvement in crime. These outcomes

include improved employment prospects, maintenance of social connections,

increased housing stability and a reduction in the crime-producing effect that prison

6.42 Greater assistance to victims of crime was seen as a further benefit of justice

reinvestment with Mission Australia noting that 'one of the strengths of justice

6.43 NATSILS commented that justice reinvestment would also be an effective

means of addressing the over-representation of people with a mental illness or

cognitive/intellectual disability. Savings can be generated through a justice

reinvestment approach by treating people with a mental illness or

cognitive/intellectual disability outside of the prison system. These savings can be

reinvested in further community support and treatment facilities. NATSILS noted that

there would be options other than the police arrest for assisting people with behaviour

that is the result of a mental ill-health or cognitive/intellectual disabilities. Courts

47 See for example, Central Australian Aboriginal Family Legal Unit Aboriginal Corporation,

Submission 32, p. 3.

73

AHRC also commented on this aspect of justice reinvestment:

There is a neat flow on effect here. If there is money to reinvest in better

alcohol and drug treatment, housing options and general community

support services, judges can be more confident about sentencing offenders

6.44 Aside from a criminal justice issue, such investment should also be seen as a

basic investment in the health system that would dramatically improve the quality of

many people's lives.

6.45 Juvenile justice was another area where a justice reinvestment approach was

seen as being particularly beneficial. As noted in chapter 3, there has been a

substantial increase in the remand of young people and a steady increase in the

incarceration of young people. This comes at a huge cost for governments and the

community. Incarceration costs are high: the cost of keeping a young person in

custody in NSW was $652 per day in 2011. In contrast, the cost of community-based

employment, low educational attainment, family breakdown and homelessness.

6.46 Submitters commented that justice reinvestment can provide significant

benefits for young people and for governments. The savings to government will

include reduced incarceration costs and long term reduction in demand for social and

sent to prison may not generate the level of savings that will allow investment of the

scale required to truly address the causes of offending in local settings. However,

Smart Justice for Young People argued that there are opportunities to realise savings

in the youth justice system through changes to bail and remand practices. It was noted

that there are high numbers of young people on remand in some jurisdictions,

particularly Western Australia and Northern Territory. This provides scope for at least

re-assessing the extensive use of detention as a substitute for services or temporary

6.47 The Commissioner for Children and Young People WA commented that there

are 'underlying social determinants that make it far more likely that a child or young

person will come into regular contact with the criminal justice system. For these

p. 16.

reinvestment for young Australians, 2013, p. 11.

74

the benefit of investing in early intervention and targeted prevention strategies aimed

at young people as well as provision of family support, a focus on health and social

for Children and Young People WA observed that these 'mirror the approaches

6.48 Juvenile Justice NSW for example, commented that the justice reinvestment

approach through early intervention does not wait for antisocial behaviour to escalate

to criminal justice involvement. Rather, young people and their families have access

immediate benefits of desistance, reduced incarceration and better post release support

services in the community. If family-based interventions are implemented, longer term

outcomes will include better functioning families, prevention of young siblings

6.49 Longer term outcomes will arise through investing in the communities that

young offenders return to following time in custody. This may shape longer term

outcomes and support desistance. Juvenile Justice NSW also noted that health,

education and therapeutic gains achieved while in custody can often be eroded after

returning to 'toxic' environments. Juvenile Justice NSW stated that data suggests that

young people are at highest risk of offending in the six months following their release

from custody. Therefore, building community infrastructure and delivering support

services to families of young offenders or children may reduce the risk of reoffending

that the benefit of justice reinvestment arose not only from reducing the number of

young people incarcerated but also from breaking the pattern of young offenders

6.50 A further benefit was seen in a change to the public perception that the only

way to deal with crime, especially crime committed by young people, is through long

6.51 Examination of justice reinvestment in Australia has been undertaken in a

number of reports since 2009. The Aboriginal and Torres Strait Islander Social Justice

to the problem of over-representation of Indigenous people in the criminal justice

system. It was concluded that:

75

Justice reinvestment is a pragmatic solution to the problem of Indigenous

imprisonment but it is based on some sound principles that meld with

Indigenous perspectives and approaches.

It takes the role of community seriously, recognising the damage for the

individual and community each time a person is imprisoned.

It recognises that there are 'high stakes' communities where is it imperative

that preventative resources and systemic change is put in place to address

imprisonment.

Most importantly, it provides a real role for the community to have a say in

what is causing offending in their communities and what needs to be done

to fix it. All of these principles would guide a partnership approach to

6.52 It was recommended 'that the Standing Committee of Attorneys General

Working Party identify justice reinvestment as a priority issue under the National

Indigenous Law and Justice Framework, with the aim of conducting pilot projects in

targeted communities in the short term' and 'that the Australian Social Inclusion

Board, supported by the Social Inclusion Unit, add justice reinvestment as a key

6.53 In recent years there have been a number of Commonwealth Parliament

committees that have supported the adoption of justice reinvestment, or have

considered that a justice reinvestment approach should at least be explored. The Final

Report of the Senate Select Committee on Regional and Remote Indigenous

Communities suggested that further work be undertaken on the 'potential for justice

committee's report on its inquiry into access to justice recommended that 'the federal,

state and territory governments recognise the potential benefits of justice

reinvestment, and develop and fund a justice reinvestment pilot program for the

6.54 In 2011, the House of Representatives Standing Committee on Aboriginal and

Indigenous communities. The committee recommended (recommendation 40) that

'governments focus their efforts on early intervention and diversionary programs and

p. 56.

p. 56.

2010, September 2010, p. 21.

2009, p. 110.

76

that further research be conducted to investigate the justice reinvestment approach in

6.55 In its response to the report, the Commonwealth Government noted:

A justice reinvestment approach, as proposed under Recommendation 40,

has the potential to significantly improve rates of offending behaviour and

victimisation in the long term and is likely to be examined in the context of

the Safe Communities Strategy. Place based approaches to address

offending and reoffending, diversion and early intervention are an

opportunity to identify where significant outcomes may be achieved

6.56 The Government went on to state that a Working Group had been established

under the NJCEOs to specifically consider justice reinvestment, or criminal justice

approaches which focus on addressing the causes of crime in particular locations. The

Working Group was to investigate options and strategies for implementing a justice

reinvestment approach and addressing drivers of crime in the Australian context. The

response also noted that the primary responsibility for implementation of justice

reinvestment strategies will fall to state and territory governments but the

Commonwealth would seek to work bilaterally with interested jurisdictions to

6.57 At the state level, New South Wales, Western Australia and Queensland have

considered justice reinvestment. The New South Wales Government commissioned a

strategic review of that state's Juvenile Justice System in July 2009. In review's April

2010 report, three different options were considered but the review explicitly

recommended a justice reinvestment approach:

…because it provides the greatest long term return on investment through

tangible benefits such as reduced crime, reduced re-offending and cost

savings….Justice Reinvestment…seeks to address the causes of crime

through investing resources in social programs that would otherwise have

been spent on dealing with the consequences of crime – most notably the

68 House of Representatives Standing Committee on Aboriginal and Torres Strait Island Affairs,

p. 321.

17 May 2013.

77

6.58 Australians for Native Title and Reconciliation noted that 'unfortunately,

while the response from the New South Wales government took on board some of the

issues and suggestions in the report, it did not commit to adopting the justice

6.59 In 2010, the Western Australia Legislative Assembly Standing Committee on

committee found that the current criminal justice response to crime, which has its sole

focus on the offending individual, is failing where the individual comes from a highly

dysfunctional community. It noted that justice reinvestment had achieved

demonstrable success in some jurisdictions as it responds both to the individual and to

the causes of crime. The committee recommended that the Western Australia

Government:

…at the highest level charge a lead agency to establish the proposed pilot

Justice Reinvestment strategy to:

collaborating in the strategy insofar as their deliverable to the

strategy are concerned; and

6.60 The Youth Affairs Council of Western Australia commented that the Western

Australian Government responded 'rather negatively' to this recommendation by

stating that:

Justice reinvestment is founded on the premise that there is appropriate

infrastructure for the current requirements (i.e. sufficient design capacity)

prior to consideration of reinvestment of future funds to alternatives to

6.61 However, in May 2013, it was reported that the Western Australian

Government was pursuing justice reinvestment as a way of addressing the increases in

incarceration rates. The Corrective Services Minister, Mr Joe Francis, is reported as

stating 'Call it justice reinvestment or prevention programs or whatever it might be,

the principle of spending money to try to get people on the right track to stop them

6.62 The Anti-Discrimination Commission Queensland noted that the Queensland

Government is recognising the benefits of a justice reinvestment approach.

74 Western Australia Legislative Assembly, Community Development and Justice Standing

2010, p. 113.

78

developed a plan to 'reduce re-offending by strengthening the focus on tackling the

causes of crime and correcting offending behaviour.' The report went on to comment

that 'broad, multi-modal approaches to preventing re-offending over the course of an

offender’s sentence, and beyond, are often more effective than point-in-time

interventions such as a standalone program'. The report proposes to direct efforts and

resources into maximising crime prevention outcomes for offenders, their families and

6.63 There a number of major research projects into justice reinvestment currently

underway in Australia. At the University of NSW, the Australian Justice

Reinvestment Project is an Australia Research Council funded project which aims to

examine the characteristics of justice reinvestment in other jurisdictions, and analyse

6.64 At the Australian National University, the National Centre for Indigenous

Studies and Indigenous Offender Health Capacity Building Group is undertaking a

three year research project entitled 'Reducing Indigenous incarceration using Justice

Reinvestment: an exploratory case study'. The project will use justice reinvestment

methodology to explore the conditions, governance and cultural appropriateness of

reinvesting resources otherwise spent on incarceration, into services to enhance

6.65 The committee received evidence of general support for a justice reinvestment

approach although it was acknowledged that there would be challenges for its

implementation in Australia (these are discussed chapter 7). However, some

submitters sounded a note of caution or did not support the approach at all,

particularly in relation to its application to Indigenous communities.

6.66 The Indigenous Social Justice Association was unconvinced about the

benefits of justice reinvestment and argued that the 'whole underpinning premise is

wrong'. Rather than a starting point of addressing social disadvantage and genuinely

assisting those in need, justice reinvestment is primarily focussed on 'saving money

for tax payers and increasing public safety by investing resources in keeping the worst

offenders incarcerated for longer'. The Association concluded that, based on the US

experience, 'justice reinvestment is not a model to emulate' and that adequate

Freedom Socialist Party commented that to genuinely address the issues of

79 National Centre for Indigenous Studies and Indigenous Offender Health Capacity Building

79

disadvantaged groups, much more funding is required than what can be saved through

6.67 The lack, as yet, of demonstrated benefits of justice reinvestment in Australia

was raised by Professor Michael Levy. He noted that there are clues to the potential

benefits from the UK and US. However, 'when laid against the certainty that the

current custodial enterprise projects, the challenges faced to the creation of an

6.68 CIS raised a range of issues including that justice reinvestment appears to be

very similar to programs already in place. For example, the Aboriginal Community

Justice Groups are described as being 'based on the idea that local Aboriginal people

know their own communities and problems. Therefore, the groups can solve local

community problems better by developing local community solutions'; a very similar

6.69 In addition, CIS stated that successive governments have, for more than

30 years, run community-based programs in Indigenous communities and, barring a

few exceptions, such initiatives have not led to real social change. CIS commented

that the belief justice reinvestment's localised community focus approach will reduce

offending ignores the history of support for Indigenous communities. CIS went on to

state that 'the focus on community involvement as a precursor to improving remote

Indigenous people's lives disregards the fact that most Indigenous communities exist

6.70 CIS argued that to address the underlying causes of Indigenous offending, the

focus must be on education and employment as evidence shows that education and

Hudson commented further 'justice reinvestment threatens to become a distraction

concluded:

Reducing systemic poverty, racism, and gendered violence and

discrimination, needs to be a basic budgetary and policy commitment of all

governments, rather than a criminal justice approach to reducing crime.

Ensuring access to mental health care, drug and alcohol programs,

education and employment may lead to reduced prison numbers as a sideeffect,

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 13.

80

6.71 Other submitters responded to these arguments. Mr Bonig, South Australian

Justice Reinvestment Working Group, noted that investment in education and

employment is part of a justice reinvestment program:

One of the submissions the committee received from an organisation was in

fact saying, 'We don't need justice reinvestment; we need money spent on

housing, education and the like.' But ultimately that is the thrust of a proper

justice reinvestment program—looking at the socioeconomic needs of

people so that they are not incarcerated. We also have for adults an inability

in some circumstances to properly supervise them in the community and

6.72 Mr Ian Coverdale, from the Australian Red Cross, commented:

There is enough evidence around the world, particularly in the US and

emerging in the UK, to say that there is something around justice

reinvestment. I think it is important that we try and work out what it means

in Australia. The US system is very different to Australia's. We are

functioning much better than that, and I think we need not just to be guided

by what happens in the US but to know what is happening here and see

what is going to happen in Australian conditions. So we need to go into

those areas that people are coming from, and demonstrably people are

coming from certain communities. We need to go into place-based

approaches to build communities and make them more resilient and safer.

That is why we think that some well-researched pilot projects are necessary.

6.73 NAAJA acknowledged that justice reinvestment was not a 'silver bullet' as the

problems of Indigenous incarceration are complex and are deeply connected to social

from Mr Huynor that the advantage and the benefit of justice reinvestment is that 'it

helps shift the conversation, helps shift the focus, and gets our politicians to be leaders

and recognise that the answers do not lie in doing work at the bottom of the cliff in

88 Mr Ralph Bonig, Joint Co-Ordinator, South Australian Justice Reinvestment Working Group,

Committee Hansard, 1 May 2013, p. 18.

p. 33.

90 Mr Jonathon Hunyor, Principal Legal Officer, North Australian Aboriginal Justice Agency,

Committee Hansard, 1 May 2013, p. 13.

91 Mr Jonathon Hunyor, Principal Legal Officer, North Australian Aboriginal Justice Agency,

Committee Hansard, 1 May 2013, p. 13.

81

6.74 It is acknowledged that imprisonment has failed as an effective way of

addressing crime in Australia and that prisons are essentially a failed institution as

they do not rehabilitate and tend to breed more criminality.

6.75 While very serious offenders need to be incarcerated to protect the public, for

other offenders, imprisonment may not be the most effective way to address criminal

behaviour.

6.76 The consequences of the failure to effectively address criminal behaviour and

the underlying causes of crime can be seen in the continued increase of incarceration

rates and the failure to improve public safety. High levels of incarceration result in

economic costs for governments and communities as well as social costs. The

consequences are particularly severe in Indigenous communities where the very fabric

of the community can be undermined through high levels of incarceration; where early

and repeated interactions between juveniles and the justice system lead to dysfunction

and intergenerational incarceration; and where great disadvantage fosters crime.

6.77 There is little doubt that there is support within justice and community

organisations and the community itself for a justice reinvestment approach for

Australia. The support arises from its community-focussed, evidenced-based approach

to providing savings, diverting offenders, addressing the causes of crime, and

strengthening communities.

6.78 There also appears to be support emerging within some governments for a

justice reinvestment approach. In part, this is driven by concerns about the

sustainability of the criminal justice system. States and territories are facing decisions

about funding for new prisons as well as how to curb the growth of expenditure in

policing and the court system. At the same time, government budgets are under

pressure through the current changes to economic circumstances.

6.79 The committee considers that the time is right for governments to consider

more effective solutions to tackling crime: solutions that not only provide a significant

economic advantage in the short term but perhaps also an even greater economic

advantage in the long term. The committee considers that justice reinvestment

provides economic benefits in the long term through shifting resources away from

incarceration towards prevention, early intervention and rehabilitation. Benefits will

accrue to government through improved economic participation of offenders and

potential offenders, decreased use of the welfare system and improved health

outcomes.

6.80 While there will be economic benefits to government, the committee

considers that the benefits through a justice reinvestment for individuals and

communities will be more important. By addressing the social determinants of crime –

unemployment, homelessness, health and education issues – justice reinvestment has

the potential to improve the life outcomes of individuals and build strong, safe and

cohesive communities.

82

6.81 Although there is much support for a justice reinvestment approach, the

committee acknowledges that there will be challenges to its adoption in Australia.

However, the committee considers that justice reinvestment deserves serious

consideration and examination of how it might work in Australia. In this regard, the

committee notes the comments of Professor Andrew Coyle:

There is no suggestion that Justice Reinvestment is a single panacea which

will solve the problem of overuse of imprisonment in Australia and

especially the disproportionate overuse of imprisonment for aboriginal and

first nation people. However, it does have some potential as a tool to

achieve this aim. Its importance lies in the fact that it is a mechanism which

allows us to redefine the problem of safety and security in our communities.

None of the [overseas justice reinvestment] models…can be lifted off the

shelf and used to resolve the problems of Australia. But they do offer a

6.82 The challenges for implementing a justice reinvestment approach are

described in chapter 7.

7.1 As described in the preceding chapter, many submitters supported the

introduction of a justice reinvestment approach in Australia. A range of benefits of

justice reinvestment were noted, particularly its emphasis on an evidence-based

approach to identifying integrated strategies to assist in strengthening communities.

However, submitters acknowledged that the implementation of a justice reinvestment

approach would not be without its challenges.

7.2 The following discussion canvasses the challenges identified in the evidence

including a lack of clarity in the meaning of justice reinvestment, the level of

economic benefits accruing in Australia, and data and evaluation concerns.

7.3 One significant challenge identified in the evidence was that the term 'justice

reinvestment' is not clearly defined. While there is a generally accepted meaning of

'classic' justice reinvestment, as has been seen from overseas experience, justice

reinvestment can take on various forms when implemented. As a consequence, there

appears to be no one single definition with some commentators observing that justice

reinvestment can 'mean many things to many people' and that it is 'an idea in progress

7.4 Australian Justice Reinvestment Project, commented that there is a

'groundswell of commitment' to justice reinvestment in Australia without a really clear

understanding of the defining features of justice reinvestment; its conceptual and

theoretical foundations; how it relates to other criminal justice policy currently on the

Ms Melanie Schwartz, Australian Justice Reinvestment Project, argued that there was

a danger that because of the lack of conceptual analysis of justice reinvestment 'the

translation into the Australian context might involve major gaps in understanding

about its fundamental concepts and also its potential pitfalls'. Some of the pitfalls are

the sidelining of its 'broader focus on building social cohesion in high-crime

neighbourhoods—or worse, operating as a cover for a strategy of disinvestment in

adopted in Australia, the Australian Justice Reinvestment Project called for analysis of

Hansard, 1 May 2013, pp 56- 57.

84

the theoretical footings and socio-historical context of the emergence and popularity

7.5 Both Sara Hudson and the Attorney-General's Department commented that

the difficulties in defining justice reinvestment may lead to it being used as a catch all

phrase. Sara Hudson went on to state that it could describe any number of 'feel good'

type programs such as 'culturally appropriate' initiatives. She argued that while these

types of initiatives may help alleviate some of the 'symptoms' of disadvantage they

7.6 Mr Kym Duggan, Attorney-General's Department, noted that the phrase

'justice reinvestment' is used widely and thus there is a risk that it may become

'something of a buzz word or buzz phrase to be more precise'. As a consequence, the

phrase may be emptied of substantive content. Mr Duggan concluded that it is

important that 'justice reinvestment should be seen as a system-wide approach to

community safety rather than just another way of stressing the importance of

7.7 While it was acknowledged that greater conceptual clarity is required, the

Law Council of Australia noted that a significant number of Articles and Reports - Bibliography have

been written about justice reinvestment. These enable the central aspects of the

concept to be articulated, 'despite the fact that questions still remain in relation to the

7.8 Professor David Brown of the Australian Justice Reinvestment Project saw

both benefits and weaknesses in the lack of a concise definition of justice

reinvestment:

One of the other paradoxes, while we have been stressing the importance of

having a clear idea of the theoretical roots of justice reinvestment—what it

is attempting to achieve and making sure it isn't just seen as a cost-saving

exercise—is that at the same time, the fact that it may be a bit vague and it

appeals to a lot of people from different constituencies, can also be a

strength, in a sense; it can let a hundred flowers bloom within what might

be a rather nebulous and rhetorical slogan. As well as being a worry, that

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 18.

Hansard, 17 May 2013, p. 13.

Hansard, 17 May 2013, p. 13.

9 Professor David Brown, Chief Investigator, Australian Justice Reinvestment Project,

Committee Hansard, 1 May 2013, p. 60.

85

7.9 The success of justice reinvestment in the US has been due, in part, to

bipartisan support. The need for multipartisan support was also raised in relation to

First Peoples, commented that the biggest challenge for justice reinvestment is

political support:

In order for justice reinvestment to be nationally successful, which is what

we are advocating, it will require multi-party support and support from all

states and territories. In this regard, the federal nature of political and

7.10 Submitters noted that justice reinvestment may require significant changes at

the state government level to sentencing, parole and bail. Subsequent reinvestment in

prevention, early intervention, diversionary, rehabilitative and post release programs

will be required by both the Commonwealth and state and territory governments. A

multipartisan approach will also be required to ensure that there is a long term

commitment to the implementation of programs and services. In the past, funding of

programs has reflected the election cycle, however, for a justice reinvestment

approach to achieve its long term goals successive government will need to commit to

I do not think you can do it if you do not have the government onboard.

That is why multipartisanism is so important, because it is not just the

government of the day. Something like justice reinvestment does not work

on election cycles; it is a long-term commitment. You need the government

of the day and you need potentially the government of the future as well to

make sure that, in three years time, you do not have a swing back to a

7.11 Some submitters saw the adoption of a multipartisan approach as a significant

challenge given that many Australian states have supported tough law and order

approaches and strict sentencing provisions for minor offences such as motor vehicle

NATSILS that while bipartisanship between the current major parties in Australia is

not very common, 'it can be argued that they are not as far apart on the political

spectrum as Democrats and Republicans in the US'. NATSILS went on to state that

10 See for example, Ms Emilie Priday, Senior Policy Officer, Australian Human Rights

Hansard, 17 April 2013, p. 19.

Hansard, 1 May 2013, p. 62.

86

'the broad appeal of justice reinvestment across diverse political constituencies may be

7.12 The AHRC also suggested that the economic rationalism argument of the

approach may appeal to some governments with a strict law and order approach as it

has done in the US. This could provide an incentive for governments to at least

7.13 A further challenge for justice reinvestment being applied in Australia is the

nature of our federated system where some programs are funded and driven by the

Commonwealth while the justice and corrections systems are the purview of the

collaboration will be required as the nine different governments have responsibility

for the array of services and sectors that impact on crime, community safety and

7.14 However, the Attorney-General's Department provided a slightly different

view on inclusion of the Commonwealth in a whole of government approach:

One thing we do need to stress is that in viewing justice reinvestment as a

system wide concept, experience in the US and, to a lesser degree, the UK,

suggests that justice reinvestment is best applied at a whole-of-jurisdiction

level. In Australia, as in the US, this means at the state or territory level. In

Australia it is the states and territories that dominate spending on law and

order measures. The overwhelming number of prisoners are incarcerated for

offences against state and territory law and it is the states and territories,

along with local government, that are best placed to respond to the factors

7.15 There were also concerns that within each level of government, it will be a

challenge to break down administrative silos so that appropriate services can be

experience, addressing clusters of issues and needs is both more efficient and effective

Australian Council of Social Service, commented:

Hansard, 1 May 2013, p. 3.

17 Mr Ralph Bonig, Joint Co-Ordinator, South Australian Justice Reinvestment Working Group,

Committee Hansard, 1 May 2013, p. 16; Australians for Native Title and Reconciliation,

Submission 63, p. 26.

Hansard, 17 May 2013, p. 14.

87

One of the biggest barriers—as well as this challenge of government

silos—is that to address the underlying causes, it is not just the justice

system; it is also about education, health and a whole range of different

7.16 The Australian Red Cross noted that various reports have pointed to the lack

of coordination between relevant government departments, and the scattering of

funding and programs across various localities without clear and cohesive objectives

and leadership. Cross-portfolio thinking, actions and responses that emphasise

integrated planning, pooled funds, intra-government committees and long term

deckchairs' within a department. Rather:

It does require attention to sentencing reform, to issues around bail on

remand, to issues around the availability of community based services in

communities, and to issues around parole and parole revocations. All of

7.17 Mr Bonig, South Australian Justice Reinvestment Working Group, explained

further:

Conversely, there are already a number of existing programs that would fall

under the umbrella of a justice reinvestment landscape. If they were

…properly coordinated—and I once again come to this silo mentality—

across a whole range of different departments under a justice reinvestment

umbrella, they might be a source of funding to at least get the redelivery of

some programs up and running. The working group is looking at the

moment at about three or four potential communities—by 'communities' I

mean discrete areas within suburbs and/or country areas—as potential pilots

for a justice reinvestment program not by diverting money from the prison

system but by re-engineering and using existing projects. Ultimately, if that

works, that will then reduce offending and incarceration and we will then in

the long term be able to free up money that might otherwise be used to

7.18 While the difficulty of addressing administrative barriers was acknowledged,

it was also argued that if governments do not take a holistic and integrated view, the

Australian Red Cross concluded that there will be a continuation of over investment in

correctional facilities with the investments that are made 'most likely contributing to

22 Mr Chris Twomey, Director Social Policy, Western Australian Council of Social Service,

Committee Hansard, 17 April 2013, p. 8.

24 Professor Chris Cunneen, Chief Investigator, Australian Justice Reinvestment Project,

Committee Hansard, 1 May 2013, p. 61.

25 Mr Ralph Bonig, Joint Co-Ordinator, South Australian Justice Reinvestment Working Group,

Committee Hansard, 1 May 2013, p. 17.

88

7.19 Just Reinvest NSW suggested that the challenges of a whole of government

approach could be overcome through joint Key Performance Indicators and budget

governance established through Memorandum of Understandings between

7.20 A further matter noted by some submitters was that a key component of

justice reinvestment is devolving accountability and responsibility to the local level to

find community-level solutions to community-level problems. However, the political

arrangements are considerably different in Australian than in the US. Ms Sara

Hudson, for example, commented that as a consequence there is not as much scope for

the devolution of funding and responsibility between different governments as

criminal justice is already the primary responsibility of state governments, and 'it is

7.21 This issue was also addressed by Ms Schwartz who noted in the US there is a

three-tier system of incarceration, and different county, state and federal

responsibilities in relation to criminal justice. This means that any simple translation

of justice reinvestment from the American context to Australia is likely to be artificial.

Ms Schwartz went on to question what the devolution of funding and authority would

7.22 It was noted that public perception will have an impact on the acceptance of

justice reinvestment. The public's knowledge of the criminal justice system is poor

and views are often formed through the media, family and friends and through the

political process. The Australian Red Cross observed that in many instances, 'the

information is partial, one sided, sensationalised or inaccurate'. Further, the public

appears to have a perception that crime is constantly increasing and that offenders are

7.23 Submitters commented that there is a danger that a justice reinvestment

approach will be seen as a 'soft on crime' option; that it allows offenders easy options

governments may be reticent to support a justice reinvestment approach. NATSILS

argued that changing community perceptions about crime and educating the public as

to what actually works to make them safer will be the most significant challenge to

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 15.

Hansard, 1 May 2013, p. 57.

125, p. 13.

89

building momentum behind justice reinvestment in Australia. NATSILS went on to

comment:

If the general public could be made to understand that crime is not

increasing, that tougher sentences will not actually make their communities

safer, and that better outcomes could be achieved for less money,

governments could then move away from "tough on crime" campaigns

without jeopardising their election chances. However, rationality, evidence

based and cost effective arguments may not address the emotive and

7.24 NATSILS concluded that, for there to be a change in public perception, both

politicians and the media will need to change the way they talk about the justice

system. Governments should seek to influence public perceptions and lead informed

debates. In doing so they will need to 'move away from emotive language that arouses

and exploits people's fears'. This, according to NATSILS, 'will take political courage

7.25 The Attorney-General's Department noted that 'in its classic manifestation,

justice reinvestment involves the diversion of money from mainstream law and order

measures and money [from] corrections budgets into prevention, intervention and

diversion'. Over time, this should result in savings across the system which can either

be reinvested into further prevention, intervention or diversion activities or even

7.26 A part of the attraction for governments of a justice reinvestment approach is

savings and economic benefits. The level of savings expected were not quantified in

evidence with some submitters stating that the level of economic benefit would be

significant and others indicating that justice reinvestment would be budget neutral

over the long term. NATSILS, for example, commented that savings in the future

would justify initial costs and that there is 'great potential' for savings through

commissioned which suggests that justice reinvestment is a realistic fiscal option for

7.27 It was also noted that the significant savings in the US were available because

of the high rates of incarceration and the actual population size. It was noted that the

economies of scale generated by reducing imprisonment in the US are likely to be

much higher than the potential in Australia. In addition, the rates of incarceration of

Hansard, 17 May 2013, p. 12.

90

offenders are significantly different with three quarters of offenders in the US being

given custodial sentences, whereas only one-fifth of offenders are subject to custodial

sentences in Australia. Therefore, the savings incurred as a result of reducing prisoner

numbers are unlikely to be as dramatic as those experienced in overseas

7.28 Juvenile Justice NSW also commented that in NSW there are already

legislative mechanisms in place to divert young people with minor offences from

comparatively fewer young people in custody that can be easily removed from the

corrections system. As a consequence, less funds will be freed up for the initial

7.29 However, Mr Duggan, Attorney-General's Department, did acknowledge that

while there are fewer budgetary savings, it did not mean that the implementation of a

7.30 The Productivity Commission cautioned against an over-emphasis on the

economic benefits of a justice reinvestment approach in Indigenous communities.

Mr McDonald noted that although the Indigenous incarceration rates are 'very

alarming and need to be addressed, the numbers involved are often small'. As there are

under 1,000 juveniles in detention in Australia, and under 500 Indigenous juveniles.

'the economic pay-off from addressing that high detention rate may be relatively

small'. Mr McDonald concluded that 'the main benefits are the social benefits to the

7.31 Mr McDonald provided the committee with further details of the potential

'pay-off' from improving outcomes for Indigenous people. He stated that for every one

dollar spent on a non-Indigenous person in the public order and safety area,

government spends about $5.83 per Indigenous person. This provides potential for

economic savings if the rates of involvement with the criminal justice system were

Hansard, 17 May 2013, p. 13; see also, Sara Hudson, 'Panacea to Prison? Justice Reinvestment

No. 134, 2013.

Hansard, 17 May 2013, p. 13.

Hansard, 17 May 2013, p. 8.

Hansard, 17 May 2013, p. 8.

91

7.32 There were also differing views as to whether the implementation of justice

reinvestment would be self-sustaining or if it would require a level of up-front or

longer term funding from government. Some submitters argued that by generating

savings in spending before reinvestment occurs, justice reinvestment does not require

significant levels of new funding and thus, the barrier of finding new money in tight

7.33 Other submitters, including the AHRC, suggested that while justice

reinvestment is about shifting funding, not new funding, there is a need for a 'modest'

amount of seed funding. This funding would be required for technical support and

coordination services. Ms Priday, AHRC, commented that the funding could be

provided by the Commonwealth and that 'it would be a very strategic way to use some

7.34 The St Vincent de Paul Society supported the need for additional short term

funding on the basis that, at the present time, the state of prisons is such that it is not

and Forensic Mental Health Network also argued for the continuation of expenditure

for custodial services, particularly health services as these services play a vital health

care function for those who enter custody. The Network commented that, for many,

the services accessed in the criminal justice or forensic mental health system represent

an important and, for some, the first opportunity to address their individual health

7.35 Submitters went on to comment that any initial funding would be repaid.

Once initial funding has been obtained, and community programs are running

effectively, savings will accrue as offenders are rehabilitated and provided with

treatment to deal with the underlying causes of their behaviour and reoffending is

7.36 The Attorney-General's Department provided its views. Mr Duggan stated

that justice reinvestment was probably not budget neutral. It is a long term strategy

and savings will be not be generated from law and order budgets in the short term.

Potentially, significant upfront funding will be needed with savings 'hopefully'

Hansard, 1 May 2013, p. 2.

p. 7.