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Chapter 2 - Introduction: Social Justice Report 2009

Social Justice Report 2009

Chapter 2: Justice reinvestment – a new solution to the
problem of Indigenous over-representation in the criminal justice system

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2.1 Introduction

Indigenous imprisonment rates in Australia are unacceptably high. Nationally,
Indigenous adults are 13 times more likely to be imprisoned than non-Indigenous
people[1] and Indigenous juveniles are
28 times more likely to be placed in juvenile detention than their
non-Indigenous counterparts.[2]

Indigenous over-representation in the criminal justice system is not a new
issue. At least since the Royal Commission into Aboriginal Deaths in Custody in
1991 it has been the subject of countless reports, research projects and
roundtables.

Some worthy initiatives have come out of these efforts but the bottom line
remains: what we are doing is simply not working. If it were working, we would
be seeing a reduction in Indigenous imprisonment, rather than the 48 percent
increase since 1996.[3]

When something isn’t working, we need to be bold and creative in
thinking outside our safe policy parameters for alternative solutions. That is
why in this chapter I look to a recent development from the United States,
justice reinvestment, as a new approach that may hold the key to unlocking
Indigenous Australians from the cycle of crime and escalating imprisonment
rates.

Justice reinvestment is a localised criminal justice policy approach that
diverts a portion of the funds for imprisonment to local communities where there
is a high concentration of offenders. The money that would have been spent on
imprisonment is reinvested in programs and services in communities where these
issues are most acute in order to address the underlying causes of crime in
those communities.

Justice reinvestment still retains prison as a measure for dangerous and
serious offenders but actively shifts the culture away from imprisonment and
starts providing community wide services that prevent offending. Justice
reinvestment is not just about reforming the criminal justice system but trying
to prevent people from getting there in the first place.

Justice reinvestment is a model that has as much in common with economics as
social policy. Justice reinvestment asks the question: is imprisonment good
value for money? The simple answer is that it is not. We are spending ever
increasing amounts on imprisonment while at the same time, prisoners are not
being rehabilitated, recidivism rates are high and return to prison rates are
creating overcrowded prisons.

As we are in the midst of the global financial crisis, seeing government
surpluses being replaced with record deficits and spending on services being
slashed, the question of whether imprisonment is good value for money is
particularly powerful.

When spending across all areas is threatened we need to be creative about
doing more with less. As we have seen from the justice reinvestment experience
in the United States, when politicians were faced with the choice between
spending on hospitals and schools or prisons, some were willing to look at
alternatives to the ‘tough on crime’ rhetoric in favour of solutions
that actively reduce imprisonment spending.

The scarcity of public funds might be just the pragmatic opportunity we need
to shift governments away from a law and order, tough on crime mentality.
Framing the problem of Indigenous imprisonment as an economic issue might be
more strategic than our previous attempts to address it as a human rights or
social justice issue.

A crisis of the magnitude that we face in Indigenous imprisonment requires
pragmatic as well as principled approaches. Justice reinvestment is a
deceptively simple idea, yet it is underpinned by a sound research methodology,
community engagement and evaluation. There is much that we can learn from the
United States experience and emerging interest in the United Kingdom around
justice reinvestment to shape better responses to Indigenous offending.

In this chapter I will introduce these innovative ideas in the context of
overseas experience and possible Australian applications. This chapter consists
of five sections:

2.1 Introduction

2.2 Justice reinvestment and the experience of the United States and the
United Kingdom

2.3 Justice reinvestment in the Australian context

2.4 Justice reinvestment and reducing Indigenous imprisonment

2.5 Conclusion

2.6 Recommendations

^top

2.2 Justice reinvestment and the experience of the
United States and the United Kingdom

(a) The context of justice reinvestment

Justice reinvestment is a public policy response to the out of control prison
population expansion in the United States from the 1990s. The United States
imprisons more people than any other nation in the
world.[4] For instance:

  • in 2008 one in every 1,000 adults were
    incarcerated[5]
  • 2.3 million people are imprisoned every
    year[6]
  • African Americans are eight times more likely to be imprisoned than white
    Americans[7]
  • one out of every eight African American males between 20-34 years of age is
    imprisoned[8]
  • if the African American imprisonment rate dropped to the same levels as the
    rest of the population, the prison population would shrink by two thirds
  • despite falling crime rates since 1991, the rate of imprisonment has
    increased by more than 50% since that
    time.[9]

These
imprisonment rates come with a $60 billion a year price
tag.[10]

The explosion of imprisonment rates resulted from a range of increasingly
punitive law and order measures but particularly the ‘war on drugs’
and mandatory sentencing.

High imprisonment costs have also coincided with a time of constrained state
and federal budgets. Often the tipping point has come when prisons have reached
capacity and governments have been faced with large costs to build new prisons.
This is where justice reinvestment has been accepted as a bipartisan solution to
avoiding the construction of new prisons.

(b) Principles of justice reinvestment

The origins of justice reinvestment mark its difference from the usual
criminal justice policy ideas. The concept of justice reinvestment came out of
the Open Society Institute, a New York think-tank led by George Soros.

George Soros is a successful financial speculator and stock investor and is
ranked the 29th richest person in the world. He has clear insights
into the financial world as well as first hand experience of human rights
violations, escaping the Nazis as a young man. Through the Open Society
Institute he donates large amounts of money to projects that help create open,
fair democracies. With this background it makes sense that justice reinvestment
is concerned with both the economics and the social justice of mass
imprisonment.

Importantly, justice reinvestment is not just about diversionary or treatment
programs, although they may be part of a justice reinvestment strategy. The
innovation of justice reinvestment, according to the Commission on English
Prisons is that it:

is not about alternatives within the criminal justice process, it is
about alternatives outside of
it.’[11]

Justice reinvestment makes us think more broadly and holistically about what
really leads to crime and how we can prevent it.

(i) Million dollar blocks

Justice reinvestment is based on evidence that a large proportion of
offenders come from a relatively small number of disadvantaged communities.
Demographic mapping and cost analysis in the United States has identified
‘million dollar blocks’ where literally millions of dollars are
being spent on imprisoning people from certain neighbourhoods. For instance, in
one neighbourhood, ‘The Hill’ in Connecticut, $20 million was spent
in one year to imprison 387
people.[12] The Hill is
disproportionately made up of low income, African Americans.

This concentration of offenders logically suggests that there should be a
commensurate concentration of services and programs to prevent offending in
these communities. This is an important departure from current individually
focused correctional policy. Current correctional policies promote individual
and group programs but provide little support for community reintegration and
community capacity building.

The bottom line is that you can put an individual offender through the best
resourced, most effective rehabilitation program, but if they are returning to a
community with few opportunities, their chances of staying out of prison are
limited.

(ii) Money talks

The second assumption of justice reinvestment is that imprisonment cannot be
considered a success because it does not make good financial sense.

Despite the growth in spending on imprisonment, recidivism and return to
custody rates have increased to the point in the United States where two thirds
of prisoners return to custody.[13] Of those, one third are returned to prison for minor parole violations,
including missed appointments, positive drug tests and breaches of
curfew.[14]

There is a substantial body of evidence that shows that prison fails to
rehabilitate, deter, meet public concerns and make communities
safe.[15] Despite a small but vocal
prison reform movement (including those who champion human rights), these
arguments have largely fallen on deaf ears in the ‘tough on crime’
climate that has predominated in most Western countries for the last 50
years.[16]

However, the failure of imprisonment in economic terms seems to be cutting
through to a diverse range of policy makers because it is an argument that spans
the ideological divide. It holds the promise of prevention, diversion and
community justice for those on the left, and for those on the right, it promises
balanced budgets. It is telling that in the United States, the home of
‘law and orders’ politics, justice reinvestment has not only been
taken up by progressive liberal states like Oregon but also Texas, home state of
George W Bush.

In the United Kingdom justice reinvestment is aligned to new economic
analysis in the form of ‘Social Return on Investment’ (SROI). The
SROI model:

is a process for understanding, measuring and reporting on the social,
environmental and economic value created by an intervention and provides a
stakeholder-led framework for measuring the long-term change created by public
policy.[17]

SROI is being used to financially argue for alternatives to imprisonment
based on long-term projections of costs and benefits. Text Box 1 provides an
example based on diversionary programs for women.


Text Box 1: Unlocking Value: How we all benefit from investing in
alternatives to prison for women offenders

The New Economics Foundation measured the costs and long-term benefits of two
diversionary programs for non-violent offending women in Glasgow and Worcester.
The SROI study found that:

  • For every pound invested into community-based diversions a further ₤14
    pounds of social value was generated to benefit the women, their children,
    victims and the community over a ten-year period.
  • If alternatives to prison were to achieve an additional reduction of just 6%
    in re-offending, the state would recoup the investment in a single year.
  • The long run value of these benefits is in excess of ₤100 million over
    a ten-year period.

As well as providing new evidence on the costs of
imprisonment, the NEF analysed the adverse consequences for mothers’
imprisonment on their children. It found that imprisoning mothers carries a cost
to children and the state of more than ₤17 million over a ten-year
period.[18]

(iii) Community consequences of
incarceration

Researchers have been investigating the impact of incarceration on
individuals in terms of rehabilitation, recidivism and deterrence for some time.
However, it is only under the umbrella of justice reinvestment that research on
the impact of incarceration on community life as a whole is being seriously
considered.

One of the assumptions of incarceration is that removing offenders from the
community (incapacitation) makes the community a safer, better place. This might
be true if we are talking about removing a small number of serious offenders
from a community. But if large numbers of offenders are being removed from a
single community this disrupts social networks and weakens the
community.[19]

The impact of incarceration is compounded because the communities with high
imprisonment rates are already
disadvantaged.[20] This makes them
more vulnerable to the disruption and drain caused by imprisonment, sustaining
the cycle of crime.

Offenders have other roles in the community that are unrelated to criminal
behaviour. In reviewing ethnographic research on offenders, Dina Rose and Todd
Clear argue that:

Our point is not that offenders be romanticized as ‘good
citizens’ but rather they not be demonized. A view of them as
‘merely bad’ is a one sided stereotype that ignores the assets they
represent to the networks within which they live, but also fails to account for
the benefits they contribute to their
environments.[21]

Offenders contribute financially; have family and cultural obligations; and
other social contributions.[22] For
instance, large numbers of men being imprisoned reduces the number of male role
models in communities and can reduce the income of families and communities.
Todd Clear goes as far as to suggest that:

Men who are behind bars are the missing links in the social network of those
who remain behind. Since these networks have limited strength to begin with the
widespread reality of prison undermines their ability to provide social capital.
And neighbourhoods with lots of men behind bars are places with especially low
endowments of social capital. Because prison saps the limited economic and
interpersonal resources of families with loved ones behind bars both the
families and neighbourhoods stay
impoverished.[23]

In particular, many offenders are also parents. Some of the initial negative
consequences of imprisonment on children of prisoner include:

  • loss of the attachment bond with the parent
  • mental health problems, including depression, withdrawal and anxiety
  • physical health problems
  • hostile and aggressive behaviours
  • poor school performance and
    truancy.[24]

Long term
the cycle perpetuates, as children of prisoners are five times more likely to be
imprisoned.[25]

On a more theoretical level, researchers are finding that imprisoning a large
segment of a community is reducing informal and formal social control.
Communities with high imprisonment perceive that formal social control
mechanisms (the police and criminal justice systems) are unfair, sending the
fatalistic message that they will also be unfairly targeted regardless of their
positive actions.[26]

In turn, informal social control also declines in this environment. Informal
social control is strong when there is sufficient community trust and solidarity
and has the potential to prevent crime. Informal social control includes things
like:

  • the ability of parents to control their children and young people
  • whether community members are willing and able to offer assistance or
    intervene if they see someone being attacked, or a house broken into
  • whether community members are willing to intervene if they think a child is
    at risk or being abused.

Building community capacity is therefore
key to increasing informal social control and a community’s own crime
prevention mechanisms.

(c) How is justice reinvestment
implemented?

Justice reinvestment has evolved into a coherent strategy with a rigorous
methodology and four clear steps.

(i) Step 1: Analysis and mapping

The first step is identifying where the offenders are coming from and then
calculating how much is being spent in these areas on imprisonment. This leads
to detailed demographic and socio-economic data mapping that shows in a very
precise way just how much is being spent on imprisonment for certain
communities.

Once the communities are identified the under-spending on health, education,
housing and other social services is often in stark contrast to over-spending on
imprisonment.

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, community supervision and
diversion options as well as the geographic mapping.

This sort of data and analysis has often been lacking in jurisdictions before
justice reinvestment was considered. According to Michael Thompson, Director of
the Council of State Governments Justice Center in the United States:

Few, if any states have access to such data when making important budget or
policy decisions. What information policy makers do receive pertains to a
particular agency and is fairly narrow in scope. Equipped with information
focused on one part of the criminal justice system, state officials are for all
practical purposes blindfolded, touching just one part of the elephant or
fumbling with thousands of jigsaw puzzle pieces. We can no longer afford for
policy makers to appropriate billions of taxpayer dollars with no understanding
of what impact such spending will have on community
safety.[27]

Step 2: Development of options to generate savings
and improve local communities

Once the communities are identified, the next step is looking at ways to save
imprisonment costs so funds can be re-spent in the community. This involves
looking at why there is such a high rate of imprisonment and particularly,
return to custody. In many cases this has involved changes in how technical
matters like parole violations or bail matters are dealt with and providing
community based alternatives to non-violent offences.

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 to community
based options.

The options will be different for each community, based on the offender
profile and the needs of the community. Given that community involvement is such
a key component of justice reinvestment, this step also involves community
consultation and engagement around the causes and solutions to crime.

Step 3: Quantify savings and reinvest in high needs
communities

Based on the information gathered in the previous two steps, it is possible
to project savings based on reductions in imprisonment spending. Savings can
then be put towards the services and projects identified by communities.

Step 4: Measure and evaluate impact

Justice reinvestment approaches are evidence based and measure performance
outcomes such as the amount of imprisonment money saved; reduction in
imprisonment; reduction in recidivism; and indicators of community well being
and capacity.

Although there is a four step process for justice reinvestment as described
here, it operates differently in each location due to administrative as well as
community differences. This part of the chapter will illustrate some of the
programs in progress in the United States and to a lesser extent, United Kingdom
and Scotland. Detailed case studies from Texas and Kansas will illustrate the
process and outcomes of justice reinvestment.

(d) Justice reinvestment in the United
States

Administratively in the United States, local counties are responsible for
sentencing most offenders but they are usually sent to state prisons to serve
their sentence.[28] The offenders
become a state problem and state cost so there has traditionally been no
financial incentive for the counties to look at the local community problems
that are contributing to high incarceration levels.

Under some justice reinvestment schemes the cost of imprisoning people is
‘charged back’ to the counties, so if they choose not to imprison
people they have the option of using those funds for community based programs
and community development activities that target where offenders live.

An example of ‘charge back’ is Oregon. In Oregon money was
reinvested in well-resourced restorative justice and community service programs
for juvenile offenders. The approach resulted in a 72% drop in juvenile
incarceration.[29] Strong
connections were made with local communities, resulting in increased social
cohesion as well as tangible projects like parks and neighbourhood
revitalisation.

In other places in the United States, state governments have actively cut
corrections budgets and reinvested into targeted community strategies. The case
studies of Texas and Kansas provide detailed information on this process later
in the chapter.

Justice reinvestment requires technical expertise to start the analysis and
mapping process, as well as negotiating options for savings. In the United
States, the Council of State Governments Justice Centre undertakes this role.
The Justice Centre has become a focal point in promoting and implementing
justice reinvestment in the United States.

(i) Council of State Governments Justice
Centre

Since the initial research and development work initiated by the Open Society
Institute, the Council of State Governments Justice Centre has supported justice
reinvestment projects.[30] The
Justice Centre receives funding from US Department of Justice and philanthropic
organisations.

The Justice Centre provides intensive technical assistance (particularly
around the data mapping component of the strategy) to a limited number of states
that demonstrate a bipartisan interest in justice reinvestment.

The Justice Centre has been crucial in developing the rigorous, evidence
based approach to justice reinvestment that has encouraged bipartisan support.

There are currently 11 states formally pursuing justice reinvestment:

  • Arizona
  • Oregon
  • Connecticut
  • Kansas
  • Michigan
  • Nevada
  • Pennsylvania
  • Rhode Island
  • Texas
  • Vermont
  • Wisconsin.

This is a diverse group of states with little in
common apart from rising imprisonment rates.

The other common thread is the bipartisan support that is necessary for
justice reinvestment. The Justice Centre have a key role to play in bringing
often very unlikely politicians together in partnership to tackle imprisonment.
Text Box 2 provides a selection of quotes from various politicians who have
worked with the Justice Centre in support of justice reinvestment.

Text Box 2: What US politicians have to say about justice
reinvestment

Michigan Governor Jennifer Granholm (Democrat):

It is not good public policy to take all of these taxpayer dollars at a very
tough time, and invest it in the prison system when we ought to be investing it
in things that are going to transform the economy, like education and
diversifying the economy.

Arizona State Senator John Huppenthal (Republican):

Our policy and funding decisions need to be based on good data and the latest
research. Unless we have that foundation, I am not confident that we’re
doing everything we can to fight crime and be efficient with taxpayer
dollars.

Kansas State Senator John Vratil (Republican):

If we do not address the problem today, we are effectively deciding to spend
hundreds of millions of dollars on future construction and operation of more
prisons...Kansas will miss the opportunity to be safer.

US Senator Sam Brownback (Republican):

We’ve got a broken correctional system. Recidivism rates are too high
and create too much financial burden on states without protecting public safety.
My state [Kansas] and others are reinventing how we do business by employing
justice reinvestment strategies that can put our taxpayers’ dollars to
better use.

Texas State Representative Jerry Madden (Republican):

We’re in the process of sharply turning the ship- not an easy process-
to focus more on treatment of peoples’ problems so they can do their time
and return to society as productive citizens...In ten years time we may look
back on this as one of the most significant changes we’ve made.

Ohio State Representative John J. White (Republican):

There’s a shift away from the mindset of lock them up and throw away
the key. That cannot sustain itself.

California Senate President Don Perata (Democrat):

We are jammed up with this situation right now because we have fallen in love
with one of the most undocumented beliefs: that somehow you get safer if you put
more people in jail.

Justice reinvestment’s political currency seems to be growing under the
Obama administration. In April 2009 the House of Representatives Appropriations
Subcommittee conducted hearings on justice reinvestment, taking evidence from
representatives of the Justice Center and the Texas and Kansas state governments
on the implementation of justice reinvestment.

Since the passage of the Second Chance Act in April 2008, prisoner re-entry
(including post release support) has been the focus of much discussion federally
in the United States. However, as pointed out by Michael Thompson, Director of
the Justice Center:

Despite the unprecedented interest in re-entry, state and county elected
officials are finding that they don’t have the resources to finance, on a
large scale, strategies necessary... Indeed, as the states face the grim reality
of $350 billion in budget shortfalls over the next 2.5 years elected officials
are scrambling to fund important services and shelving plans to expand promising
pilot programs, or worse, scuttling re-entry programs
altogether.[31]

In this dire context, there is hope that justice reinvestment will find
favour at the state, as well as federal level as a way of getting out of the
financial black hole.

Case Study 2.1: Justice reinvestment in Texas

Texas in south of the United States is the largest state in terms of size and
population. Texas has a bigger population than Australia, with 24.3 million
residents.[32] Texas is very
ethnically diverse and is a now a ‘majority minority’ state that
means that various ethnic minorities now outnumber white
Americans.[33]

Texas has the second highest imprisonment rate in the United States with 976
people imprisoned per 100,000.[34] This rate is even higher for ethnic minorities: while white Americans are
represented at 667 per 100,000, Hispanic Americans are 830 per 100,000 and
African Americans are an alarming 3162 per
100,000.[35] This makes African
Americans almost five times more likely to be imprisoned that their white
counterparts in Texas.

Texas is renowned for its ‘tough on crime’ policies that have led
to a 300% increase in the prison population between 1985 to
2005.[36] To meet demand $2.3
billion was spent on construction alone between 1983 to 1997 to house
inmates.[37] However, building could
not keep pace with demand and it was projected that the prison population would
increase by another 14 000 people in five years, necessitating the spending of
$523 million just to build new
prisons.[38]

Faced with prison overcrowding and massively increasing costs, policy makers
initiated a bipartisan process to pursue justice reinvestment.

Step 1: Analysis and mapping

The Council of State Governments Justice Center provided detailed mapping of
the prison population to identify the ‘high stakes communities’
where offenders come from. They found:

  • five counties accounted for more than half of the people imprisoned at a
    cost of over half a billion dollars
  • the four highest prisoner re-entry population counties in Texas account for
    over $1 billion a year in imprisonment costs
  • ten of Houston’s 88 neighbourhoods account for almost $100 million a
    year in prison cost
  • 50% of former prisoners return to neighbourhoods that account for only 15%
    of the city’s
    population.[39]

Of note,
the high stakes communities are also disproportionately made up of African
Americans and people living below the poverty line. For instance, one of the
notorious neighbourhoods, Sunnyside, is 93.8% African American and the median
income is less than half the Houston median income.

Analysis of the Texas prison population was also used to identify systemic
factors contributing to the projected growth in prison populations. Key issues
leading to high imprisonment rates were:

  • Between 1997 and 2006 the number of probation revocations leading to prison
    terms increased by 18% even though the overall number of people on community
    based supervision orders decreased by
    3%.[40]
  • At the same time prisons have been expanding, funding has been cut to
    community based substance abuse and mental health services, with over 2000
    people on the waiting list for
    services.[41]
  • The percentage of people approved for parole was low, even though many
    offenders met the guidelines for parole based on risk levels and offence
    severity. If guidelines were followed an extra 2,252 people could have been
    released in 2005.[42]

Step 2: Development of options to generate savings and improve
local communities

The combination of mapping and systemic analysis provided powerful evidence
about where and how to reinvest money. To identify options a rare joint hearing
of the Texas Legislature was held to hear evidence on the prison population and
gain input from a range of advocates, stakeholders and community members. Based
on the research, the Justice Center put forward a range of options including
expanding substance use and mental health treatment programs and enhancing the
use of parole and diversion programs.

Following this process, in May 2007 the Texas Legislature enacted a raft of
new policies and fully funded programs including:

  • 800 new beds in a substance abuse treatment residential program for people
    on probation supervision orders
  • 3,000 more places for outpatient substance abuse treatment for people on
    probation supervision
  • 1,400 beds in intermediate sanction facilities to divert probation and
    parole technical violators from prison
  • 300 new beds in halfway houses for people under parole supervision
  • 500 new beds for an in-prison treatment unit for people with serious drink
    driving offences
  • 1,500 new beds in an intensive in prison substance abuse treatment program
  • 1,200 new places in intensive substance abuse treatment programs in
    prison.[43]

Changes were
also made to improve the quality of probation and parole services, including
capping the maximum caseload of probation and parole workers to ensure adequate
supervision and support. Incentives have also been put in place to encourage
counties to create more progressive sanctions so probation and parole officers
have more community based options to use if offenders breach their supervision
conditions.

Step 3: Quantify savings and reinvest in high needs communities

Texas reinvested $241 million that would otherwise have been spent on the
construction of new prisons in treatment programs and improved probation and
parole services. $210.5 million was saved in the 2008-2009 financial
year.[44]

Some of the savings were invested into support programs for low-income
families in the high stakes communities. For instance, $4.3 million was
allocated to Nurse-Family Partnerships for the 2008-2009 financial
year[45] and a further $5.8 million
the following year. The Nurse Family Partnerships program helps first time,
low-income mothers during the first two years of the child’s life. The
program is designed to ‘increase self sufficiency, improve the health and
well-being of low income families, and prevent
violence’.[46] The program
provided assistance to 2,000 families in high stakes communities in the first
year of operation.

Step 4: Measure and evaluate impact

According to statistics released two years after the justice reinvestment
strategies were put in place, the Texas prison population has stopped growing
for the first time in decades.[47] The prison population is even projected to decrease slightly in the following
year.[4] The Texas Department of Criminal
Justice notes:

It has been proven that these types of programs have an impact on
recidivism, so these new numbers are no
surprise.[48]

Halting the increasing in the prisoner population may seem like a modest
achievement but given the astronomical rise in recent years and tough law and
order policies in Texas, the justice reinvestment strategies have been described
as the biggest shift in Texas criminal justice policies in years.

It is encouraging that there are positive results so early into the
implementation of justice reinvestment. This bodes well, given that we can
expect to see more results further down the track as early intervention measures
and increasing community capacity will likely prevent crime and involvement with
the criminal justice system.

^top

Case Study 2.2: Justice reinvestment in
Kansas

Kansas is a mid-Western state in what is considered the
‘heartland’ of America. Compared to Texas it has a much smaller
population of nearly 3 million people, many of those living in rural areas.
Nonetheless, just like Texas, their prison population was surging out of
control. The prison population was projected to increase 22% by 2016 at a cost
of $500 million in construction
alone.[49]

Compared to Texas, Kansas is a less punitive state. The rate of imprisonment
is lower than the national average. The national average is 756 people per
100,000 while the imprisonment rate for Kansas is 582 people per 100,000.
However, bear in mind that an imprisonment rate this high would sill rank Kansas
in the top five nations, somewhere between Rwanda and Cuba.

Racial disparities also run deep in Kansas. The rate for African American
imprisonment is 3,096 per 100,000, compared to 443 per 100,000 for White
Americans. This makes African Americans almost seven times more likely to be
imprisoned than their white counterparts in Kansas.

Although the budget situation in Kansas was not quite as perilous as Texas,
Kansas has a reputation for implementing sound evidence based correctional
policies. They decided to try and proactively tackle their growing prison costs
through justice reinvestment before they spiralled out of control.

Step 1: Analysis and mapping

The Justice Center provided technical assistance to analyse prison
populations in Kansas. Analysis of systemic issues revealed similar issues
around parole and probation revocations leading to imprisonment, rather than
substantive court imposed prison sentences. For instance:

  • In 2006 probation and parole revocations accounted for 65% of prison
    admissions. This made up 23% of the prison capacity and cost $53 million
    annually.[50]
  • 90% of these revocations were for conditional violations rather than fresh
    offences. 32% of revocations were for alcohol and drug use and 58% of people
    revoked required substance abuse or mental health
    treatment.[51]
  • Most people were released from prison without any involvement in
    rehabilitation programs like substance abuse treatment and vocational education.
    72% of people needing vocational education did not access it before release,
    while half of people needing substance abuse treatment also failed to receive
    these services before release from
    prison.[52]

In terms of
mapping, most of the focus was on Wichita. Wichita is the largest city in Kansas
and a majority of prisoners are from the metropolitan area. Demographic mapping
found that in 2004 $28.9 million was spent imprisoning people from Wichita. Of
that amount, $11.4 million (39%) was spent imprisoning people from a single
neighbourhood. In addition, $8.7 million was also spent on food stamps,
unemployment insurance and other welfare measures in that same
neighbourhood.[53]

Step 2: Development of options to generate savings and improve local
communities

Like Texas, a bipartisan approach was taken to policy development based on
the evidence about high stakes communities and short falls in the justice
system. In addition, they also commissioned public opinion surveys to gauge how
the public would react to changes in correctional policy.

The public opinion surveys revealed a serious disconnect between the reality
and perception of the criminal justice system. Despite a number of laws
lengthening sentences for some serious offenders, most Kansans incorrectly
believed that offenders were being sentenced to the same amount of time as they
were ten years ago.

However, the polls overwhelmingly showed that people supported substance
abuse treatment for people in prison but they wrongly assumed that these
services were actually being provided. In discussing options to manage
offenders, most people supported the use of community based and rehabilitative
options over the building of more
prisons.[54]

In May 2007 the Kansas Legislature passed a package of criminal justice
reforms aimed at reducing prisoner populations including:

  • a performance based grant program for local community corrections to design
    local strategies and programs to reduce revocations by 20%
  • 60 day early release credit to prisoners who completed educational,
    vocational and treatment programs prior to release
  • restoration of earned time credits for good behaviour for non violent
    offenders in
    prison.[55]

Step 3:
Quantify savings and reinvest in high needs communities

The policy measures will save Kansas from having to build an additional 1,292
prison beds over the next ten years, saving $80.2 million over the next 5 years.
$4.5 million was reinvested in the community corrections grant program and $2.4
million was reinvested in substance abuse treatment programs and vocational
programs.

As a result of the justice reinvestment approach and mapping, the New
Communities Initiative (NCI) was launched to provide neighbourhood reinvestment
for the Wichita neighbourhoods identified as having the highest offender and
disadvantage concentrations.

The NCI brings together state, county and community leaders to improve public
safety, educational opportunities and housing conditions for the disadvantaged
neighbourhoods of Central Northeast Wichita. This is a holistic approach that
looks to increasing community capacity and therefore preventing crime.

In consultation with the neighbourhood communities, five pillars or priority
areas were developed for intervention:

  • adult education and economic development
  • housing for all
  • physical, mental and behavioural health
  • children and youth
  • safe and secure
    neighbourhoods.[56]

The
state and county levels of government, as well as local businesses have provided
funding. The initial stages of the NCI have also looked at existing servicing
and resources to identify gaps but also ways of working more cooperatively.

In the first year of operation of some of the achievements include:

  • establishment of the ‘Strengthening Kids of Incarcerated
    Parents’ program
  • creation of a centralised job placement call centre which assesses and
    refers callers to the appropriate employment agency
  • earmarking portions of the City Liquor Tax Funds to be spent on substance
    abuse treatment targeted for these neighbourhoods
  • expansion of early intervention ‘Healthy Babies’ program
  • prioritising resources for schools with the highest concentration of
    students
  • additional summer learning programs for children from the targeted
    neighbourhoods
  • establishment of the Summer Youth Program, employing local adolescents to
    landscape and revitalise the
    neighbourhoods.[57]

It
is anticipated that the NCI approach will be gradually replicated in other
disadvantaged communities in Wichita.

Step 4: Measure and evaluate impact

Although it is still early days in the justice reinvestment implementation,
Kansas has already experienced a 7.5% reduction in its prison population from
2004 levels. The parole revocation rate is down 48% and parole absconders are
down 70%.[58] The reconviction rate
for parolees also dropped by
35%,[59] signalling that new
measures to improve the quality of parole and probation services, as well as the
availability of substance abuse treatment, are reducing crime.

^top

(ii) Justice reinvestment in the United Kingdom and
Scotland

Justice reinvestment is still in its infancy in the United Kingdom but there
are signs that it is being considered as a real policy alternative.

Like the United States, the United Kingdom has seen an explosion in
imprisonment. Despite a 42% decline in the amount of crime reported since 1995,
the prison population has more than doubled since
1992.[60] The prison population rate
is 153 per 100,000. While this is much lower than the United States, it is 60%
more than comparable European countries like France, Belgium, Germany, Ireland
and Italy.[61]

A period of ‘criminal justice hyperactivity’ can be blamed for
this staggering growth. Since 1997 the government has created over 3,000 new
criminal offences, almost half attracting a sentence of
imprisonment.[62]

Law and order politics have become so ingrained in the public psyche that it
can be easy to forget that imprisonment is a very deliberate policy choice.
Rising imprisonment levels are not inevitable, as history from the United
Kingdom shows us. During some periods in Britain’s history there has been
a concerted effort to get people out of prisons –
‘decarceration’. These periods of history suggest that perhaps we
should see the current growth as ‘an aberration from which we should
distance ourselves’.[63]

(iii) Lessons from history – why growth of
imprisonment is not inevitable

Between 1908 and 1939 England and Wales underwent the world’s largest
period of decarceration. At the end of the period the prison population had
halved and 20 prisons were closed.

This decrease was a result of politicians, notably Winston Churchill,
actively trying to prevent people going to prison in the first place. Churchill
famously said:

The mood and temper of the public in regard to the treatment of crime and
criminals is one of the most unfailing tests of any country. A calm,
dispassionate recognition of the rights of the accused and even of the convicted
criminal ... and the treatment of crime and the criminal mark and measure the
stored up strength of a nation, and are singular proof of the living virtue of
all.[64]

Again between 1979 and 1992 UK governments adopted conscious policies to
prevent and reduce the length of imprisonment.

This history suggests that changes certainly can be made to reduce
imprisonment rates and given the disconnect between crime and imprisonment
rates, there is good reason and precedent to look at alternatives.

However, like the United States, the economic sustainability of imprisonment
is also being questioned in the wake of the Global Financial Crisis. In June
2008 the House of Commons Justice Committee commenced an inquiry into justice
reinvestment. The inquiry is still collecting evidence and will report shortly.
A landmark report by the Commission on English Prisons Today has also recently
made calls for justice reinvestment to be implemented in the United Kingdom.

(iv) Offender mapping

The most comprehensive research mapping offender concentration comes from
Scotland. The Scottish Prison service found that a quarter of their prisoners
come from 50 of the 1,222 council wards across the country and half come from
the poorest 12% of council
wards.[65] This pattern was
particularly pronounced for Glasgow, where 60% of the prisoners come from the
poorest neighbourhoods. Conversely, there are 269 affluent wards across the
country where no one goes to prison at all.

Location, social disadvantage and imprisonment were conclusively linked in
Scotland. This can be seen clearly in a comparison of imprisonment rates. The
national imprisonment rate for Scottish men is 237 per 100,000 people, while the
imprisonment rate for men in the 27 most disadvantaged wards is 953 per 100,000
and for young men aged up to 23 from these wards the rate is an astonishingly
high 3,427 per 100,000.[66]

The International Centre for Prison Studies (ICPS) has led research on
justice reinvestment. A pilot project between the ICPS and the Gateshead local
council (taking in Gateshead prison) has started the initial research and
development phase of a justice reinvestment approach.

(v) ICPS Gateshead pilot project

The ICPS pilot project began in 2005 in partnership with Gateshead Council.
Gateshead is a northern England, close to Newcastle. Gateshead has a population
of 191,000 people with a mix of rural and urban populations. The unemployment
rate for Gateshead is higher than the national average and the borough is ranked
the 26th most disadvantaged out of the 354 in
England.[67]

True to the justice reinvestment model, the first step was research to
analyse and map the prison population. Unfortunately, this proved incredibly
difficult as Gateshead prison does not collect data about where prisoners live.
This was also compounded by the fact that many prisoners report no fixed place
of abode in order to receive an additional grant upon release. Due to the
problems with data, a partial picture was put together based on the Probation
Services data and court data.

Despite the data difficulties, the project was still able to map offender
concentration with similar findings to other justice reinvestment projects.
Almost a quarter of all the people in prison came from only 2 out of 22
electoral wards, and half lived in only
five.[68] Again, these areas also
ranked most highly on indices of deprivation. It was more challenging to
estimate the cost of imprisonment given the incomplete data, but it costs around
₤6 million each year to run Gateshead prison which draws most of its
inmates from the local area.[69]

Unlike the United States justice reinvestment projects, this pilot was
preliminary and did not have the bipartisan support for real change and
reinvestment to take place. Nonetheless, the findings are interesting because
they highlight the flexibility of justice reinvestment and how it might be used
in a range of jurisdictions. The project has developed options around greater
local involvement in decisions, neighbourhood justice, multi agency cooperation
and restructure to community supervision, which are being considered.

(vi) New connections: social inclusion, localism and
penal moderation

Justice reinvestment is being seen as part of wider movement towards criminal
justice reform in the United Kingdom and Scotland, reflecting the different
social policy environment of the United Kingdom from the United States.

This is seen in the recent report from the Commission on English Prisons
Today. The Commission is an independent panel of review, led by Cherie Booth QC
(wife of Tony Blair) and including other respected experts in the area of prison
reform. It is the result of two years of research, consultation and visits to
investigate good practice in the United States and Europe. This report is a
‘road map for long term and fundamental
reform’[69] and is likely to
be highly influential in government policy-making circles.

Justice reinvestment has been linked with concepts of social inclusion in the
United Kingdom, especially in relation to locational and holistic approaches to
tackling social problems. The connection to social inclusion will be discussed
further below in relation to Australia. However, it is worth noting that because
social inclusion is an established policy framework in the UK, it has been
easier for proponents of justice reinvestment to build on this base to gain
acceptance of the idea.

Another UK adaptation of justice reinvestment has been connecting it with the
emerging policy issue of localism. Localism devolves power away from centralised
government and bureaucracies to the community level, through grass roots
community engagement and local council structures. Localism:

would focus more on individuals as part of their neighbourhood, see their
behaviour as part of a pattern and seek solutions that brought some improvements
to both individuals and the
community.[70]

Localism is being trialled in health and education and is now being
considered for criminal justice problems as well.

An inquiry is currently being conducted by the All-Party Parliamentary Group
on Local Government in the United Kingdom on justice in communities. The inquiry
is looking at the role of local communities in reducing crime and revitalising
neighbourhoods, with a special focus on justice reinvestment schemes. The
connection with localism might foreshadow how justice reinvestment strategies
will be pursued in the UK.

In Scotland, localism and community justice has been taken out of the
theoretical and into the practical with a conscious effort to devolve criminal
justice to local communities. This approach implies confidence in local
communities to generate their own solutions to crime. Kenny MacAskill, Cabinet
Secretary for Justice typifies this response:

I’ve always been convinced that communities in Scotland can
differentiate who they want locked up. You can go around every community in
Scotland and say what about that group of kids there? And they will say,
‘Nah, he just needs a foot up the backside and a job’,
‘She’s just a sad case and needs a cuddle and him, he’s evil,
lock him up’. Every community can do that. Some folk need more TLC, some
need a bit of shouting at, others need to be detained. It’s what a
football manager would do. We need to get those ones that need a foot up the
backside out doing some hard work, those that need some stability and someone to
take and interest in them, someone to pick up the phone to when they are
down.[71]

Localism is put in practice through Community Justice Authorities in
Scotland.

(vii) Community Justice Authorities in
Scotland

Community Justice Authorities (CJAs) are statutory bodies for the strategic
planning and monitoring of community justice services. They were created in
legislation in 2005 but have been in full operation since 2007. There are eight
CJAs across Scotland.

The role of CJAs is to provide community justice services which are
responsive to local needs and coordinated in a whole of government, whole of
community way. This particularly includes the links between the prisons and
community services to ensure that prisoners have good post release support to
prevent recidivism.

The larger strategic focus means that each of the CJAs develops a local plan
to reduce re-offending. This has the scope to look at the broader systemic
causes of crime, including poverty, lack of employment, housing and education in
communities. CJAs are only in their infancy but it is hoped that they will take
a broader approach to the causes of crime as their role becomes more cemented.

It is too early to evaluate the success of the CJAs but so far the results
seem to be promising. In only eight months the number of prisoners serving
sentences in prisons close to their homes (and therefore increasing
opportunities for post release support and community reintegration) has already
increased by 25%.

However, experts caution that progress will be limited if funds are not
devolved from the Scottish prison system, consistent with a justice reinvestment
model.

Of particular relevance to justice reinvestment, funds are actually given to
the local CJAs to manage their own services and initiatives. However, originally
there was the expectation that funds would be diverted from the Scottish prison
service to the Community Justice Authorities. At this early stage, this has not
happened yet because prison numbers are still too high. This suggests the need
for a comprehensive justice reinvestment strategy to complement the CJAs.

Finally, the last plank in the justice reinvestment reform platform is penal
moderation. Penal moderation asks us to reduce our over reliance on imprisonment
through principles of restraint, parsimony and human dignity. Essentially, it
calls for prison as a last resort and aligns strongly with human rights
standards.

^top

2.3 Justice reinvestment in the Australian context

Australia is not America. We can take comfort knowing that as a whole we
imprison less people than the United States or the United Kingdom and spend less
on imprisonment.

However, we can take no comfort from our track record on the imprisonment of
Indigenous Australians. If we think back to Winston Churchill’s famous
quote describing the way we treat people who commit crimes as ‘one of the
most unfailing tests of any country’, Australia is most certainly failing
the test of fairness towards Indigenous Australians.

The appalling levels of Indigenous over-representation, the large amount of
money being spent on Indigenous imprisonment and the toll that this is taking on
individuals and communities all suggest to that we should seriously consider
justice reinvestment in Australia.

Over-representation of Indigenous people in the criminal justice system
represents one of the most significant gaps between the life outcomes of
Indigenous and non Indigenous Australians. The Australian Government has
expended substantial funding and political capital in their undertaking to close
the gap between Indigenous and non Indigenous Australians, however, they have
not yet set targets to close the huge gap that exists in imprisonment rates.

The most recent Productivity Commission Overcoming Indigenous Disadvantage
report is unequivocal about the how significant this disparity is. Despite some
gains in other indicators, Indigenous imprisonment is actually worsening:

  • The imprisonment rate increased by 46% for Indigenous women and by 27% for
    Indigenous men between 2000 and
    2008.[72]
  • Indigenous adults were 13 times as likely as non-Indigenous adults to be
    imprisoned in 2008, compared to 10 times in
    2000.[73]
  • The Indigenous juvenile detention rate increased by 27 per cent between 2001
    and 2007, making Indigenous juveniles 28 times more likely to be detained than
    non-Indigenous
    juveniles.[74]

Just as
the Australian Government has set ambitious but achievable targets to close the
gap in health equality, education and employment, we need to take the same
approach to reducing the over-representation of Indigenous children and adults
in the criminal justice system. Justice reinvestment is one way to do this.

(a) Imprisonment rates and crime in
Australia

The United States ranks number one when it comes to imprisoning people and
has a rate of 760 people imprisoned per 100,000. Australia does comparatively
well, ranked 104th with 169 people imprisoned per
100,000.[75]

However, if Australia was judged on its imprisonment rate of Indigenous
Australians it would be an altogether different picture. The rate of
imprisonment for Indigenous adults is 1,769 people per
100,000-[76] almost two and half
times greater than the United States rate. If we look at states like Western
Australia, the rate is 2,827 people per
100,000,[77] almost 4 times greater
than the United States rate.

Another way to look at these figures is to put them in a different context.
In a deliberately provocative analysis Chris Graham writes:

In the first half of 2008, there were 8411 Indigenous people enrolled in
tertiary education. At the same time, there were 6 605 Indigenous people in
prison. By comparison, for the same period there were about 696 279 non
Indigenous Australians enrolled in tertiary education, while there were 20 072
non-Indigenous Australians in prison...If you applied the same principle to
white Australia- i.e. the number of people in jail is only about 22% lower than
the number at university- our total prison population would expand to over 546
000 people. That’s a population larger than Newcastle, Australia’s
seventh largest city.[78]

These levels would not be acceptable for the non-Indigenous population but
unfortunately they are part of daily life for many Indigenous communities. With
Indigenous people making up only around 2% of the population but 24% of the
national adult prison population and close to 50% of the juvenile detention
population, it is not surprising that so many families have a family member
imprisoned.

There are a range of factors that contribute to Indigenous
over-representation that will be discussed below, however, we now have evidence
that Indigenous young people receive harsher treatment from the Courts based on
national data analysed by the Australian Institute of Criminology. For instance,
Indigenous young people in Western Australia are twice as likely to be
imprisoned as non-Indigenous young people who are also found guilty of an
offence.[79]

The overall imprisonment rate has been increasing substantially in Australia,
growing by around 4% each year since
1984.[80] This represents an almost
doubling of the overall imprisonment rate during this period. However, part of
the reason for the growth in the overall imprisonment rate is the continued
overrepresentation of Indigenous Australians.

Crime rates in Australia vary across the different offence categories.
However, like the United States and the United Kingdom we have seen some sharp
declines in certain crimes. For instance, property crime was at its lowest ever
recorded rate in 2007[81] and
robbery has declined by 38% since
2001.[82]

Again, like the United States and United Kingdom, the increase in
imprisonment expenditure has not led to better community safety outcomes.
According to Dr Don Weatherburn, Director of the NSW Bureau of Crime Research
and Statistics:

We seem to have reached the point where rising imprisonment rates are
bringing diminished marginal returns...by 2004 the rising rate of imprisonment
in NSW exerted little if any measurable effect on property or violent
crime.[83]

The growing cost of imprisonment, coupled with the limited impact on crime
rates and recidivism again raises the question of whether imprisonment is good
value for money in Australia.

(b) The cost of imprisonment in Australia

Expenditure on imprisonment is also steadily rising in Australia. In
2007-2008 $2.6 billion was spent nationally on adult corrective services, rising
5% on average each year.[84] On
average, it costs $187 per prisoner, per day. This expenditure corresponds to a
burden of $126 per year for every person in
Australia.[85]

Indigenous adults make up roughly a quarter of all prisoners nationally. Very
crudely, we can estimate that at least one quarter of the entire imprisonment
expenditure, ($650 million) would be spent imprisoning Indigenous adults each
year. It could easily be more given the higher costs associated with running
prisons in remote areas and for women.

National expenditure on juvenile justice is not reported but some information
is available on a state-by-state basis. For instance, in NSW $103.3 million was
spent on juvenile detention in
2007-2008.[86] Approximately 50% of
the young people detained in NSW are Indigenous, so we can estimate in NSW alone
nearly $52 million was spent detaining Indigenous young people.

There are clearly huge savings to be made if Indigenous imprisonment can be
reduced. According to a very crude analysis of the 2008 ABS Prisoner statistics,
if Indigenous Australian were imprisoned at the same rate as non-Indigenous
prisoners, there would only be about 390 Indigenous prisoners. This is a 94%
reduction in the current rate of Indigenous imprisonment. This would translate
into around $610 million of savings.

On the other hand, if imprisonment continues to rise, so too will prison
costs. The potential economic and political quagmire is unfolding in NSW due to
increasing imprisonment costs.

(i) The economic and political cost of imprisonment
in NSW

It is estimated that if the current growth in prisoners continues in NSW, the
government will need to build another new jail every two years. This will come
at cost of $170 million extra each year from 2015 just to run the prisons, not
including building costs. [87]

And the costs are political as well given current plans to privatise some NSW
jails in an effort to increase efficiencies. Plans to privatise Cessnock and
Parklea jails have led to strong community and union resistance. The NSW
government has backed down on privatising Cessnock jail but plans to privatise
Parklea jail remain afoot.

Privatisation of prisons and detention centres in Australia has a problematic
history. Of concern, one of the key contenders for the Parklea contract is
currently G4S, the same company that was held by the Western Australian Coroner
as contributing the death in custody of Mr Ward in Western Australia in 2008.

(c) Recidivism in Australia

Like the United States the increase in imprisonment expenditure has not led
to better rehabilitation outcomes, reflected in the high recidivism rates across
the criminal justice system.

Imprisonment is not meeting the goal of deterrence either. In fact, a recent
study by the Australian Institute of Criminology has found that there are no
difference in the recidivism rate of juveniles who are detained and juveniles
who are dealt with through community based
sanctions.[88] This provides
evidence that detention should be used
‘sparingly’[89] with
young people due to the adverse consequences on education and employment
opportunities which may do more to prevent recidivism.

Recidivism is difficult to measure but indications are that it is high.
Unfortunately, again it is substantially higher for Indigenous Australians. In
2008, 73% of Indigenous prisoners, compared to 49% of non-Indigenous prisoners,
had a history of prior adult
imprisonment.[90] Additionally:

  • The gap in recidivism rates varies across Australia with the highest
    discrepancy in NT where 76% of all Indigenous prisoners have prior adult
    imprisonment, compared to 27.3% for non-Indigenous
    prisoners.[91]
  • Indigenous prisoners are nearly twice as likely to be readmitted to custody
    as non-Indigenous
    prisoners.[92]
  • Recidivism rates and progression into the adult criminal justice system are
    also alarming. In a NSW Bureau of Crime Statistics and Research cohort study of
    juveniles before the Children’s Court for the first time, 90% of the
    Indigenous children went on the appear before the adult criminal court in the
    follow up period, compared to 52% of non-Indigenous juveniles in the
    group.[93]

These
recidivism statistics are testament to the fact that prison has not
rehabilitated these offenders; instead it seems to have set in motion a
revolving door in and out of the prison system.

(d) Location of offenders

There is currently no comprehensive, published offender mapping research in
Australia. However, demographic research mapping of disadvantage is beginning to
emerge that seems to indicate offender and disadvantage concentration similar to
the patterns in the United States.

Professor Tony Vinson’s 2007 study ‘Dropping off the edge: the
distribution of disadvantage in
Australia’,[94] analyses
indicators of disadvantage,[95] including imprisonment, to map the most disadvantaged areas in Australia.

Professor Vinson found that 3% of Australia’s postcodes account for a
disproportionate amount of disadvantage. Compared to other areas, the 3% of most
disadvantaged post codes has at least twice the rate of unemployment; criminal
convictions; imprisonment; child maltreatment; disability support recipients;
and psychiatric admissions.[96]

The study did not specifically look at Indigenous status but a very rough
analysis of the research shows that there is an over-representation of
disadvantaged locations with higher than average Indigenous populations. Given
that Indigenous Australians make up 2.3% of the population, many of these areas
have far greater than average Indigenous populations.

Table 1 shows some of the most disadvantaged
locations[97] and the Indigenous
population from the 2006 Census. The locations are not ranked but categorised as
either ‘most disadvantaged’ or ‘next most disadvantaged’
and listed alphabetically to ‘avoid public focus on just a few
localities’.[98] ‘M’ denotes ‘most disadvantaged’ and ‘NM’ is
‘next most disadvantaged’. NSW and Victoria are analysed on a
postcode basis and the other states are analysed on local government areas.

Table 2.1: Disadvantaged locations and Indigenous populations

State
Categorisation of disadvantage
Location
Indigenous % of Population
NSW
M
Western Plains – area between Bourke and Cobar
34.2%
M
Boggabilla
55.8%
M
Brewarrina
58.2%
M
Lightening Ridge
21.3%
M
Menindee
27.9%
M
Tingha
25%
M
Wilcannia
54%
QLD
M
Burke
25%
M
Murgon
9.1%
M
Mount Morgan
12.5%
NM
Aurukun
91.5%
NM
Carpentaria
37.9%
NM
Doomadgee
92.7%
NM
Mornington
90%
NM
Torres
69.8%
SA
M
Ceduna
24.1%
M
Coober Pedy
14%
NM
Port Augusta
16.6%
WA
M
Dundas
12.1%
M
Halls Creek
79.1%
M
Menzies
62.5%
M
Ngaanyatjarraku
87.3%
M
Sandstone
20.2%
M
Upper Gascoyne
55.4%
NM
Laverton
39.3%
NM
Murchison
30%
Vic
M
Nowa Nowa, Lake Tyers
6.9%
M
Nyah West
4.5%

This research is only a starting point and does not solely concentrate on
offending but it does indicate there is clearly a basis for properly focused and
designed research.

(i) Centre for Aboriginal Economic Policy
Research

The Centre for Aboriginal and Economic Policy Research has recently completed
an analysis of the disadvantaged regions, comparing Indigenous and non
Indigenous populations. This analysis is based on Australian Bureau of
Statistics Data and uses the Socio-Economic Indexes for Areas (SEIFA) as a basis
for comparison.

This research primarily looks at advantage/disadvantage in terms of ‘an
individual’s potential and actual access to economic
resources’.[99] It does not
consider imprisonment or rates of crime, although it does note that the omission
of these indicators are a limitation of the
study.[100]

The population is broken down into 531 areas. The analysis shows that the
most disadvantaged Indigenous communities tend to be in remote areas, where as
the most advantaged Indigenous areas tend to be in city locations. Table 2 lists
the top 20 and bottom 20 areas.

Table 2.2: Top 20 and bottom 20 Indigenous
Areas
[101]

Top 20 Indigenous Areas
Bottom 20 Indigenous Areas
  1. Woollahra/Waverley (NSW)
531. Ampilatwatja and homelands (NT)
  1. Lower North Sydney (NSW)
530. Ramingining and homelands (NT)
  1. Eastern Suburbs (NSW)
529. Thamarrurr (NT)
  1. Northern Beaches (NSW)
528. Urapuntja Homelands (NT)
  1. Baulkham Hills (NSW)
527. Milingimbi and Homelands (NT)
  1. Hornsby-Kuring-gai (NSW)
526. Alice Springs Town Camps (NT)
  1. Melbourne/ Port Phillip (VIC)
525. Kintore (Walungurra) and Homelands (NT)
  1. Whitehorse (VIC)
524. Angurugu (NT)
  1. Hobart (TA)
523. Tanami (NT)
  1. Yarra (VIC)
522. Lajamanu (NT)
  1. South Canberra/Weston/Woden (ACT)
521. Tennant Creek Town Camps (NT)
  1. Brisbane City Inner North (QLD)
520. Katherine Town Camps (NT)
  1. Hunters Hill/Ryde (NSW)
519. Balgo (WA)
  1. Blue Mountains (NSW)
518. Tennant Creek (NT)
  1. Maroondah (WA)
517. Sandover (NT)
  1. Brisbane City Inner South West (QLD)
516. Elliot District (NR)
  1. Kingston (VIC)
515. Umbakumba and homelands (NT)
  1. Monash (VIC)
514. Mindibungu (WA)
  1. Unley/Burnside/Mitcham (SA)
513. Alpurruururlam (NT)
20. Wollondilly (NSW)
512. Palumpa (Nganmarriyanga) (NT)

There are also some urban communities, for example Blacktown/Bidwill (rank
425); Blacktown/Blackett/Emerton (rank 428); and Campbelltown/Airds (rank 434)
that face comparable levels of disadvantage as remote areas. However, in these
areas similar levels of disadvantage are faced by Indigenous and non-Indigenous
residents.

(ii) Data from government departments on Indigenous
offender concentration

To find out where Indigenous offenders come from, I sought data from all
state and territory corrections and juvenile justice departments. I requested
data showing the breakdown of all Indigenous prisoners and juvenile detainees
(sentenced and on remand) by the postcode of place of usual address.

A collation of this data can be found at Appendix 2. Appendix 2 provides the
top 10 locations with the highest numbers of Indigenous offenders, including the
exact numbers of prisoners for adult imprisonment and juvenile detention, based
on the data provided by the departments.

Table 3 shows the top 5 locations with the highest numbers of Indigenous
adult prisoners in NSW, Queensland, Western Australia, South Australia and the
Northern Territory. The other jurisdictions have substantially smaller
Indigenous populations but data can be found for them in Appendix 2. There is
some variance in the way location is recorded by different jurisdictions, with
some able to provide postcodes, with others providing Local Government Areas or
Australian Bureau of Statistics Subdivisions. Because of this it is not possible
to make comparisons across jurisdictions.

It is crucial to stress that this is only very preliminary and is designed to
provide a quick snap shot rather than detailed analysis of the data over time.
It is recommended that more comprehensive demographic mapping, in conjunction
with other measures such as the Socio-Economic Indexes for Area (SEIFA) Index of
Relative Socio-Economic Disadvantage and analysis of court data, take place to
achieve more accurate results.

Table 2.3: Top 5 Indigenous adult prisoner locations – NSW, QLD, SA,
WA

State/Territory
Rank
Location
Description
1
Inner Sydney – ABS Statistical Subdivision
Inner suburbs of Sydney including Redfern, Darlington, Waterloo,
Marrickville, Leichhardt to Botany
 
2
Blacktown – ABS Statistical Subdivision
Blacktown and surrounding western suburbs
 
3
Central Macquarie – ABS Statistical Subdivision
Area around Dubbo
 
4
Hastings – ABS Statistical Subdivision
Mid north coast including Kempsey and Taree
 
5
Newcastle – ABS Statistical Subdivision
Newcastle
1
Cairns – Local Government Area
 
2
Brisbane – Local Government Area
 
3
Townsville – Local Government Area
 
 
4
Mount Isa – Local Government Area
 
5
Tablelands – Local Government Area
 
1
5700
Port Augusta
 
2
5724
Marla, Mintabie
 
3
5690
Ceduna
 
4
5608
Whyalla
 
5
5113
Elizabeth, Davoren Park
1
Broome – Local Government Area
Including Broome, Bidyadnaga Community, One Mile Community, Kennedy Hill
Community, Djarindjin
 
2
Halls Creek – Local Government Area
Including Balgo Hills Community, Billiluna Community, Halls Creek, Mulan
Community, Turkey Creek
 
3
Swan – Local Government Area
Including Swan View, Midvale, Lockridge, Beechboro
 
4
Derby – West Kimberley Local Government Area
Including Derby, Bayulu, Bungardi, Junjuwa, Looma Community, Mowanjum
Community
 
5
Stirling – Local Government Area
Including Balga, Nollamara, Mirrabooka
1
Alice Springs (Urban)
2
Darwin (Urban)
3
Tennant Creek
4
Alice Springs (Rural)
5
Katherine (Urban)

Due to the smaller overall numbers of juveniles in detention it is harder to
get a clear picture for all jurisdictions but the top 5 data for NSW is included
due to greater numbers. Data for the other jurisdictions can be found in
Appendix 2.

Table 2.4: Top 5 Indigenous juvenile detainee locations – NSW

Rank
Location (post code)
Description
1
2770
Mt Druitt
2
2830
Dubbo
3
2440
Kempsey
4
2840
Bourke
5
2650
Wagga Wagga

Contrary to popular perception, a majority of Indigenous Australians live in
major cities (31%) or regional areas (45%) and not remote areas
(24%).[107] This is also reflected
in Indigenous imprisonment, with urban and regional locations making up the bulk
of high imprisonment locations.

Urban locations seem to have high Indigenous prisoner populations, for
example the inner city suburbs of Sydney and the western suburbs of Sydney like
Blacktown and Mt Druitt. Urban Indigenous communities get less specific
Indigenous funding, however, levels of disadvantage are still very high. Justice
reinvestment which has had success in community wide strategies for urban
communities and could be an effective way of targeting resources to communities
that are often forgotten about in policy development and funding.

Regional towns also have very high prisoner populations; in particular,
regional towns like Port Augusta, Cairns, Dubbo, Kempsey and Broome. Again,
these areas can often be under resourced and provide fewer diversionary options
for offenders. These towns also act as hubs, fed by the more remote communities.
For instance, the suburb of Broome has the highest number of Indigenous
prisoners of any suburb in Western Australia, however, part of this can be
attributed to the transient population of people coming in and out from more
remote locations. This means that there needs to be a balance between services
in the centre as well as the remote communities.

The communities with high Indigenous prisoner concentrations do not come as a
surprise. They are the same communities that have been identified as
disadvantaged for some time now. There are also some connections to the measures
of disadvantage identified by Professor Vinson. However, this just reinforces
that we have been failing these communities for a long time and it is now time
for a new holistic approach like justice reinvestment to try and tackle these
entrenched issues.

Based on this data I think we can tentatively suggest that any of these
locations would be ideal for justice reinvestment pilot projects. The next part
of the chapter goes on to put forward some ideas about making justice
reinvestment work for Indigenous Australians.

^top

2.4 Justice reinvestment and reducing Indigenous
imprisonment in Australia

Justice reinvestment has not been expressly targeted at specific cultural
groups but the experience thus far in the United States is that its
interventions are predominantly aimed at African-American communities.

Justice reinvestment provides a framework for what we have been trying to
achieve in reducing Indigenous over-representation for some time. Imagine
if:

  • the huge amount spent on Indigenous imprisonment could be spent in way that
    prevents crime and increases community functioning
  • there was increased accountability and scrutiny about how tax payer funds on
    corrections are spent
  • communities were involved in identifying the causes and solutions to
    crime
  • there was a shift away from the mindset that imprisonment is the only option
    – instead it becomes the last resort.

This might sound like
pie in the sky wishful thinking but having seen the great promise in the United
States, justice reinvestment seems a way of making this a reality. The justice
reinvestment framework is even stronger when we take on board the United Kingdom
concepts of localism and penal moderation. Combine that with what we know about
engaging Indigenous communities in partnerships and community development and we
might just have a real life solution to the problem.

There are some strong synergies between the current best practice in managing
Indigenous offending and justice reinvestment. Below are some examples of the
benefits of using justice reinvestment with Indigenous offenders and their
communities.

(a) Community building through crime prevention not
more prisons

Justice reinvestment acknowledges what Indigenous communities have known for
a long time – taking people out of communities through imprisonment
weakens the entire community.

Indigenous offenders have valuable roles to play in their communities. Many
are parents and also have a wide range of social, cultural and family
obligations. When you take these people out of communities you are often placing
an additional burden on already stretched family members. And given that family
and community connections are so strong in Indigenous communities, be they in
urban, regional or remote areas, these impacts ripple throughout the community.
We are not only punishing the offender but also all those that are connected
with them.

This can have some unintended consequences. Research that I conducted in 2004
on the situation of Indigenous women exiting prison vividly demonstrated that
the impact of imprisonment of Indigenous men on the community is a contributing
factor to under-reporting of violence in
communities.[108] It is important
that victims of family violence come forward for their own safety but also to
ensure that something is done with the offender to stop the violence and abuse.
Crime prevention is not about avoiding dealing with unacceptable behaviour such
as family violence and abuse. It is about more effectively dealing with it at a
community level and preventing it from emerging in the first place. It
strengthens communities to take charge of problems so they do not
perpetuate.

We frequently hear stories of Indigenous offenders who have returned from a
stint in prison far worse than when they went in. This perpetuates the cycle of
crime and imprisonments, further weakening the community as individuals are very
likely to return to custody.

Justice reinvestment uses community wide crime prevention strategies to try
and minimise imprisonment but also build the community up. We have long seen
that Indigenous engagement and partnership in programs leads to more effective
implementation. It also leads to other outcomes, like increased community
confidence and improved governance. This becomes mutually reinforcing; crime
prevention decreases imprisonment; and community engagement strengthens the
community so the preconditions for crime are reduced.

Engaging at a community level will also make very obvious the current
shortfalls in resources that impact on offending. For instance, any community
crime audit of Indigenous communities is likely to find levels of overcrowding,
poor education, undiagnosed/ untreated trauma, medical issues, lack of
recreational activities and problems with alcohol and substance abuse. Justice
reinvestment will argue for resources at the front end (primary prevention)
rather than the back of the system (imprisonment).

The Northern Territory Government is planning a new jail. This could arguably
be a case study in what not to do if you want to reduce imprisonment,
with critics advocating for community development and prevention programs
instead of investment in a new jail. Unfortunately, we are seeing this same
scenario being repeated across the country with plans for a $150 million prison
in the Western Kimberley in Western Australia and estimates that NSW will need
to build a new prison every two years if projected growth occurs.

(i) A missed opportunity for change in the Northern
Territory

It is projected that the Northern Territory will have the highest
imprisonment rate in world in four years time. Indigenous prisoners make up 83%
of the prison population and the Indigenous prisoner population has jumped 23%
in just one year.

The Northern Territory’s jails are overflowing. The Northern Territory
government has announced that it will build a new 1,000 bed jail at cost of $320
million in construction. The new prison will be the biggest ever infrastructure
investment in the Northern Territory.

While some see a new jail as a necessity to combat chronic overcrowding,
others are wondering why the Northern Territory government is not looking at
this crisis as an opportunity to try something new. According to John Lawrence
of the Criminal Lawyers Association in the Northern Territory:

Spending $320 million on a new gaol is the road to nowhere basically.
It’s just same, same. That money, or a proportion of that money, should be
invested in what is really causing crime, namely addressing education, health,
housing, employment.[109]

Like the United States, there are clear policy and law decisions that have
led to the explosion in imprisonment in the Northern Territory. Glen Dooley,
senior lawyer at the North Australian Aboriginal Justice Agency (NAAJA) argues
that a toughening of the Bail Act, a parole board that frequently
declines applications and extra police presence as a result of the Northern
Territory Intervention[110] have
all contributed to increasing imprisonment of Indigenous offenders.

Traffic matters are a key component in the large number of Indigenous people
in jail, with Glen Dooley stating that there are 400 to 450 Indigenous offenders
serving short sentences for traffic
offences.[111] In most other
jurisdictions in Australia it is almost unheard of that these sorts of offences
would attract a custodial sentence. Instead these types of offences would be
subject to community-based orders.

The Northern Territory has a poor record on providing community-based orders.
In other Australian jurisdictions there are two people on community-based orders
for every one person in gaol. In the Northern Territory the ratio is one to
one.[112]

The situation is just as bad when it comes to treatment programs in prison
and post release services. Only 10% of prisoners were offered alcohol treatment
programs and only 24 people underwent sex offender
treatment.[113] It is likely that
this will continue, with Professor Chris Cunneen stating that:

If you lock 1,000 people up in a prison, it’s large jail, it’s
much harder to run rehabilitative programs in a large prison like that.
There’s usually a much greater concentration on management of prisoners
rather than on programs and
rehabilitation.[114]

Similarly, the lack of pre release programs is negatively impacting on
prisoners’ chances of getting parole. Glen Dooley describes the situation
as:

...a farcical catch-22. My clients say they are knocked back for parole
because they didn’t do courses that didn’t
exist.[115]

And this also has worrying implications for the community safety. Glen Dooley
recalls a case where a client was convicted of:

...a very nasty rape...He was 17 at the time. The judge slotted him for 10
years. He was given a non-parole of six years but he was never given parole. He
was released... after serving the full 10 years. I sense he is an articulate
person who is seeking some understanding of what he did. They just let him out.
There’s no one looking after him, no one keeping an eye on him. Because he
wasn’t paroled with all sorts of conditions, such as keeping off the piss,
he can do whatever he likes. Let’s hope he kicks goals, but it really
worries me.[116]

The issues in the Northern Territory share similarities with a number of the
states in the United States that have implemented justice reinvestment. Places
like Texas and Kansas were confronted with overcrowded prisons, a need to build
more prisons and a large financial and social burden. These problems were a
result of poor legislative and policy choices and chronically disadvantaged
communities. However, these states responded by changing laws to reduce
imprisonment, supporting parole, improving treatment programs and implementing
community development strategies.

The Northern Territory would be wise to learn from the experience of justice
reinvestment in the United States before they are faced with having to build
another new jail which will inevitably fill up with more Indigenous
prisoners.

The case of the Northern Territory shows a number of opportunities for
justice reinvestment strategies to reduce imprisonment and strengthen Indigenous
communities. It seems clear from this case study that people in the community,
legal and non-government sectors implicitly understand the fundamental
principles of justice reinvestment and there is a broad support for prevention
over detention. Further more, the community audits that have already occurred as
part of the Northern Territory Intervention may also provide relevant data that
could suggest possible justice reinvestment pilot sites.

Further, it would be interesting if in the spirit of engagement and
partnership, if Indigenous communities were actually asked whether they wanted a
new gaol for $320 million or whether they wanted their share of that money to be
spent of community development and treatment.

(b) Making the multi-level structural causes of
crime the target of intervention

One of the stumbling blocks for correctional programs is that despite a
stated commitment to culturally appropriate practice they still fail to miss a
fundamental problem, programs are pitched at the individual level rather than
looking at individuals in their social and cultural context. Without involving
family and community members, correctional programs with Indigenous offenders
will continue to be limited in their success.

The corrections system is supposedly trying to rehabilitate the individual
without consideration of their community circumstances. Again, you can have the
best individual intervention program in the world but unless you are addressing
the community circumstances that brought a person to prison, any positive gains
will be short lived.

The recent National Indigenous Drug and Alcohol Committee (NIDAC) report is
the latest in a long list of reports since the Royal Commission into Aboriginal
Deaths in Custody to suggest a multi level explanation for the continued
Indigenous over-representation in the criminal justice system. Text Box 3
provides a summary of these findings.

Text Box 3: Why are Indigenous people over-represented in the criminal
justice system?

Socio-economic factors

These include ‘a long history of social disadvantage, cultural
displacement, trauma and grief, and poor health and living
conditions’.[117] Data from
the 2002 National Aboriginal and Torres Strait Islander Social Survey shows that
respondents were more likely to have been imprisoned if:

  • they had not completed year 12
  • were unemployed
  • living in poverty
  • living in overcrowded dwellings
  • were a member or had a family member who as from Stolen Generations
  • lived in a remote area
  • abused alcohol or
    drugs.[118]

Alcohol
and other drug misuse

It is estimated that:

  • Alcohol is a factor in up to 90% of all Indigenous contact with the criminal
    justice system.[119]
  • 87% of all Indigenous intimate partner homicides are alcohol
    related.[120]
  • 68% of all Indigenous adults tested positive to drugs and 63.8% reported
    drinking alcohol prior to arrest and being placed in police custody. This jumps
    to 81% of Indigenous police detainees reporting alcohol abuse in the Northern
    Territory[121]
  • Almost 90% of Indigenous juvenile police detainees tested positive for
    drugs, compared to 40% of non-Indigenous juvenile
    detainees.[122]

Barriers
to diversion

Programs like the Illicit Drug Diversion Initiative (IDDI) often exclude
people with alcohol as the primary drug of choice and history of violence. This
disproportionately limits the participation of a large number of Indigenous
offenders who fit this profile.

There is also a requirement to admit the offence and some Indigenous people
receive legal counsel not to admit guilt or are reluctant to disclose to police.
There is also evidence that diversionary programs are less available in rural
and remote areas.

For Indigenous juveniles, evidence shows that they are more likely to be
arrested than given a caution. National data is unavailable for juvenile
diversion rates but in NSW for instance, Indigenous juveniles are diverted only
44% of the time, compared to 76% of the time for non-Indigenous
juveniles.[123] The low rate of
diversion means that they tend to acquire a more extensive criminal record at an
earlier age. This increases their risk of detention when they appear before
court.[124]

Cognitive disabilities and mental health problems

The NIDAC report found that in particular Foetal Alcohol Spectrum Disorders
(FASD) and acquired brain injury contribute the over-representation of
Indigenous people in the criminal justice system. Although the number of people
with FASD or acquired brain injury in contact with the criminal justice system
is unknown, indications are that there is a higher incidence in the Indigenous
community. These conditions result in ‘social and behavioural problems
that may increase their propensity to come in contact with the criminal justice
system’.[125]

Similarly, our previous research on Indigenous young people with cognitive
disabilities and/or mental health issues suggests that these young people are
often at higher risk of involvement with the criminal justice
system.[126]

Over-representation is a product of disadvantage and requires that
disadvantage be tackled at a community wide level. Justice reinvestment would
look holistically at all of the causes of crime articulated by NIDAC in
developing a strategy to address Indigenous imprisonment.

(c) Providing funding for culturally secure
programs

As well as addressing the structural causes of crime, justice reinvestment
can provide a secure line of funding for culturally secure treatment,
rehabilitation and diversion programs. This can include things like Indigenous
healing programs, mentoring, residential programs, bush camps and men’s
and women’s groups.[127]

Currently these types of community initiated and owned programs often receive
short term, ad hoc funding and face uncertain futures. On the other hand,
largely cognitive behavioural psychological programs, funded by government
departments are much better resourced, even though they are often less suitable
for Indigenous offender needs.

Justice reinvestment offers the opportunity to support culturally secure
programs and build an evidence base around them so that they can compete with
the research claims of Western psychological programs that are often put in
place for Indigenous offenders.

(d) Identification and removal of policy and legal
factors in Indigenous imprisonment

Justice reinvestment also analyses the policy and legal factors that lead to
imprisonment. For instance, in Texas and Kansas, they found low levels of parole
and early releases, as well as parole revocations for technical matters, were
leading to a great deal of imprisonment and extra expenditure. Policy reform and
legislative change in these states reduced imprisonment accordingly.

This is also relevant for Indigenous Australians. A study looking at violent
offenders across Australian found that 50% of Indigenous offenders served their
entire prison sentence, compared to only 39% of non-Indigenous
offenders.[128] One suggestion for
this disparity is that Indigenous offenders are less likely to be able to meet
parole conditions due to poor access to support services and
accommodation.[129] Just as
justice reinvestment led to better resourced and more innovative parole and
community corrections services in Texas and Kansas, justice reinvestment could
be the impetus for improving Indigenous community justice services.

Indigenous Australians are also more likely to be imprisoned for public order
offences. In a study of defendants before the Magistrates Court in NSW
Indigenous defendants made up 21.9% of public order offences (for instance
offensive conduct, offensive language, assault police and resist
arrest).[130] Public order
offences have long been seen as a process of Indigenous criminalisation and
reflecting poor policing practices. Justice reinvestment provides another
argument for critically looking at these laws with an eye to reducing Indigenous
imprisonment and expenditure.

High remand rates for Indigenous Australians are also forcing prison rates
and expenditure up. Bail laws across the country have been tightened, but none
more so that NSW. The NSW Bail Act has specific impacts on Indigenous
young people.

(i) NSW Bail laws and Indigenous young
people

Between 2007 and 2008 the number of juveniles held of remand in NSW rose by
32%, from an average of 181 to 239 young people on remand each day. This has led
to a 29% increase in remand costs, from $36.7 million per year up to $47.2
million.[131] The length of time
that young people are spending on remand is also increasing considerably.

A recent study by the NSW Bureau of Crime Statistics and Research (BOCSAR)
has found that the growth in remand has been a result of changes to the NSW
Bail Act
and increased policing. Significantly, the increased rate of remand
has done nothing to reduce the rate of
crime.[132]

In 2007 the NSW government amended the Bail Act 1978 to restrict the
number of applications for bail that can be made to the court. Amendment 22a
prevents a defendant from making an additional application for bail unless they
can show new facts or circumstances, or because they were not represented by a
legal practitioner at the first
application.[133]

The BOCSAR report did not specifically consider the impact on Indigenous
young people, however, given that they routinely make up around half of the
juvenile detention population, it is likely to be significant. In fact, those
working in field suspect that Indigenous young people are even more
disadvantaged by the recent changes.

It seems from the BOCSAR research that police have deliberately stepped up
enforcement of bail conditions. Young people are more vulnerable because courts
impose a number of ‘welfare’ conditions. These include things like
curfews, non-association orders, reside as directed, and must be in company of a
parent. If the police find that these conditions have been breached the young
person can then be taken into custody.

BOCSAR found that 66% of the young people were remanded for not complying
with conditions of bail while only 34% of young people who breached their bail
committed a further offence.

Lawyers from the NSW Aboriginal Legal Service believe that Indigenous young
people are more at risk of being breached because they usually have these
‘welfare’ types of conditions imposed. This is partly because
Indigenous people have more significant welfare needs and the court often
decides that they need extra monitoring. However, this can be setting young
people up for failure and not adequately recognising the different lifestyles
that Indigenous young people lead.

For instance, Caleb Franklin, senior lawyer from the NSW Aboriginal Legal
Service gives this example:

If you are from Bourke or Brewarrina and it is a 40 degree day and you live
in a tin shed with no air conditioning – you are not going to be home
between 6pm and 9am – you’ll be down at the river. Especially if
home isn’t such a great place to be because of
violence.[134]

According to Nell Skinner, another senior lawyer at the NSW Aboriginal Legal
Service, Indigenous young people are ‘sitting ducks for increased
policing’.[135] They are
much more visible because of their use of public space and often come from
communities where over-policing has a longstanding history. For instance, in
Brewarrina there are 12 police officers for only 300
people.[136]

Section 22a has also contributed to the increase of young people on remand,
with the BOCSAR report showing a clear correlation between the introduction of
the restrictions to further bail applications and the dramatic increase in
remand numbers.[137] The other
implication of the Section 22a is that young people are spending longer periods
of time in custody on remand.

The flow on effect of the increased use of remand is the overcrowding of
juvenile detention centres, with the Department of Juvenile Justice
‘struggling under the sheer weight of
numbers’.[138]

Young people are not being housed in appropriate accommodation. Because all
of the other centres are full, the Department of Juvenile Justice has taken over
the old women’s gaol in Emu Plains. However, this facility has cells with
no ensuite and no access to drinking water so detainees are reliant on staff to
let them out for these amenities. Similarly, access to education and programs is
also severely limited due to
overcrowding.[139]

These conditions are clearly not in the best interests of the children.
Remand has a disruptive effect on a young person’s family relationships,
education, work and community
connections.[140] This is bad
enough but when we are subjecting young people to overcrowding where their basic
needs and rehabilitative goals have no way of being met, we are disadvantaging
these young people further.

Bail legislation and young people has become a politically controversial
topic. The release of the BOCSAR report was delayed because the NSW government
classified the BOCSAR report as Cabinet-in-confidence. This is the first time
the government has ever done
this[141] and reflects the
sensitivities and divisions around this issue.

The Minister for Juvenile Justice has recently announced a review of the
juvenile justice system, for this first time in 16
years.[142] It is hoped that the
NSW Government takes this opportunity to look at bail in the context of reducing
imprisonment and the best interests of the child.

Although more research is needed to provide concrete evidence on the impact
of bail laws on Indigenous young people in NSW, the example above shows an
obvious point of legislative and policy reform that would decrease Indigenous
imprisonment.

Another worrying development is the introduction of further conditions for
mandatory sentencing in Western
Australia.[143] Adults who assault
and cause bodily harm to police officers, ambulance officers, transit guards,
court security officers or prison officers face a minimum of six months'
imprisonment, while juveniles aged between 16-18 will now go to detention for no
more than three months. Given the Australian experience of mandatory sentencing
in the Northern Territory and Western Australia in the
past,[144] it is highly likely
that this legislation will impact heavily on Indigenous Australians. While it is
unacceptable for police officers or any other public security officers to be
assaulted as they go about their work, there is concern given that Police and
Indigenous relations are not always cooperative and tensions can escalate
quickly into violence.

These issues highlight just a few of the legislative and policy blocks that
funnel an unacceptable amount of Indigenous people through to prison and
juvenile detention. A justice reinvestment approach could systematically
highlight a variety of these issues for Indigenous Australians and suggest
appropriate reforms.

(e) Assistance for victims of crime

We know that Indigenous Australians are also over represented as victims of
crime, particularly violent crimes, including family violence:

  • According to the National Aboriginal and Torres Strait Islander Social
    Survey, Indigenous adults have double the rate of victimisation for violent
    crime than non-Indigenous
    adults.[145]
  • Indigenous Australians are almost 34 times more likely to be hospitalised
    for family violence related
    injuries.[146]
  • Indigenous young people are three times more likely to be reported to police
    as victims of family violence or sexual assault than non Indigenous young
    people.[147]

It would
be a mistake to think that justice reinvestment is all about assisting the
offender. In fact, one of the strengths of justice reinvestment is the ability
to divert funding to culturally appropriate victim support services. Previous
Social Justice Reports have outlined some excellent but precariously funded
healing and victim services. These are the sorts of programs that could benefit
from additional funding as a result of justice reinvestment strategies.

While ensuring the safety of victims is paramount, what we continually hear
from Indigenous victims of crime is that because the perpetrators are often
known to them and part of their family and community, it is in everyone’s
interest for the perpetrators to return to communities rehabilitated, ensuring
long term safety.

For instance, it is clearly not in the interests of the victim or community
safety if an Indigenous sex offender is released without receiving any sort of
treatment program. Justice reinvestment could promote the funding of effective
culturally secure treatment programs that reduce the risk of further offending.

Again, these options are not about being soft on crime; they are about being
smart about crime and safety. It ensures crime is dealt with appropriately and
in a manner that focuses on rehabilitation and prevention of further offending.
This helps to prevent crime in the future while attending to the needs of
victims through diversion of funding to victims support and healing services.

(f) Compatible with existing Indigenous community
justice mechanisms

Indigenous communities already have some of the mechanisms in place to make
community involvement in justice reinvestment work. Local Indigenous community
justice groups are running in many parts of Australia giving Elders and other
important people a role in the justice system either through formal mechanisms
like the Indigenous court models or broader planning and support.

These groups, where they are established by the community, or sanctioned by
the community, would be an ideal point of first contact in engaging communities
about how justice reinvestment could be implemented. Working with Indigenous
community justice groups would ensure partnership and local knowledge to tailor
justice reinvestment strategies to individual community needs.

(g) Connection with government policy
priorities

Justice reinvestment is a timely strategy, not only because Australian state
and federal budgets are under unprecedented pressure to rein in spending but
also because of the strong connections to current government social policy
priorities.

(i) Social Inclusion

The most notable synergy is with the current social inclusion policy push.
Social inclusion and social exclusion have been significant social policy
drivers in the UK and Europe since 1980s. The election of the Rudd government
has seen it receive serious attention at the federal level in Australia. A
number of new structures reflect the status of social inclusion as a guiding
policy principle in the Australian government:

  • the establishment of the Australian Social Inclusion Board to provide
    independent advice to the government
  • the Deputy Prime Minister, Julia Gillard, has portfolio responsibility for
    Social Inclusion, assisted by Senator Ursula Stephens
  • the Social Inclusion Unit sits in the Department of Prime Minister and
    Cabinet, with the Prime Minister making a number of public undertakings towards
    social inclusion.

The recent Australian Public Service Social
Inclusion Policy Design and Delivery Toolkit describes social inclusion as:

Being socially included means that people have the resources (skills and
assets, including good health), opportunities and capabilities they need to:

  • Learn and participate in education and training;
  • Work and participate in employment, unpaid or voluntary work including
    family and carer responsibilities;
  • Engage connect with people, use local services and participate in local,
    cultural, civic and recreational activities; and
  • Have a voice influence decisions that affect
    them.[148]

Academics
and policy makers all over the world have wrestled with the definition of social
exclusion although the UK Social Exclusion Unit provides a widely accepted
definition as:

Social exclusion is about more than income poverty. Social exclusion happens
when people or places suffer from a series of problems such as unemployment,
discrimination, poor skills, low incomes, poor housing, high crime, ill health
and family breakdown. When such problems combine they can create a vicious
cycle. Social exclusion can happen as a result of problems that face one person
in their life. But it can also start from birth. Being born into poverty or to
parents with low skills still has a major influence on future life
chances.[149]

The Australian Government has also tried to articulate its approach to social
inclusion through a set of ‘Aspirational
Principles’[150] and
‘Principles of
Approach’[151] but also
spelling out that:

To be socially included, people must be given the opportunity to:

  • secure a job
  • access services
  • connect with family, friends, work, personal interests and local
    community
  • deal with personal crisis
  • have their voice
    heard.[152]

The Australian government has signaled its commitment to a number
of social inclusion priorities:

  • closing the gap for Indigenous Australians
  • addressing the needs of jobless families
  • delivering effective support to children most at risk of long term
    disadvantage
  • focusing on particular locations, neighbourhoods and communities to ensure
    programs and services are getting to the right places
  • homelessness
  • employment for people with a disability or mental
    illness.[153]

What is interesting is just how closely a number of these
principles and priorities align with justice reinvestment. In particular, there
is a significant coalescence between the stated principles of ‘early
intervention and
prevention’;[154] ‘using evidence and integrated data to inform
policy’;[155] and using
locational approaches.[156]

The emphasis on giving communities a voice in decisions that effect them is
also a particular challenge facing Indigenous communities. But again, there is a
strong connection between the community engagement focus of justice reinvestment
and the goals of social inclusion.

In effect, justice reinvestment could become a very powerful tool for
ensuring that Indigenous Australians are socially included. It meets the
concerns of policy makers ‘mindful of the costs and benefits and evidence
of returns for
investment’,[157] the need
for holistic early intervention and evidence based policy.

This confluence of agendas could be a turning point for Indigenous
imprisonment in Australia if the Australian Government takes its commitments to
social inclusion seriously.

(ii) COAG Closing the Gap targets

The COAG Closing the Gap commitments made in December 2007 and throughout
2008 have shaped the spirit in which Indigenous policy is being conducted in
Australia at the moment. Although it is a serious omission that no formal
targets were set at that point to close the gap in imprisonment rates, the
emphasis on health, education and employment all speak to a vision of strong
Indigenous communities.

The problem is, however, that you will not be able to meet these targets if
you continue to have such a high proportion of the Indigenous population caught
up in the criminal justice system because imprisonment compounds individual and
community disadvantage. Over time we would hope that the Closing the Gap targets
will lead to an improvement in life chances and therefore a reduction in
imprisonment but this could take a generation at the very least. For this
reason, specific justice targets are needed now.

I welcome the recent announcement from the Standing Committee of Attorneys
General (SCAG) stating that:

Ministers will develop ‘Justice Closing the Gap targets’
with a view to including such targets in future COAG reform
packages.[158]

This is an excellent opportunity to develop integrated targets and reforms.
Targets should be informed by the principles of justice reinvestment, ensuring
that special consideration is given to areas with high concentrations of
Indigenous prisoners, as well as the legal and policy factors that increase
Indigenous imprisonment.

A commitment at the COAG level would ensure cooperation across all levels of
government and across all departments. This could radically reshape how we deal
with Indigenous over-representation in this country.

Currently, more than any other portfolio, the justice needs of Indigenous
Australians are siloed. There is poor interagency collaboration between the
‘front end’ (prevention and support services before offending) and
‘back end’ (corrections and juvenile justice) departments dealing
with Indigenous over-representation. Indigenous over-representation is not only
the responsibility of corrections and justice departments but also requires
substantial input in terms of health, housing, education, employment and child
protection to name just a few.

Targeted justice reinvestment strategies have the potential to cut
imprisonment quite quickly given the experience of the United States. Reduced
imprisonment could in turn lead to better achievement across all the Closing the
Gap targets. There is a potential for a mutually reinforcing relationship
between the Closing the Gap targets and justice reinvestment.

(iii) National Indigenous Law and Justice Framework
2009-2015

The draft National Indigenous Law and Justice Framework 2009-2015, developed
by the Standing Committee of Attorney-Generals (SCAG) is designed to be a
‘blueprint for action to reduce Indigenous disadvantage in law and
justice’.[159] The draft has
been endorsed by all Ministers at the August SCAG meeting and is expected to be
finalised by 30 September
2009.[160]

Although not designed to be prescriptive it does set out five inter-related
goals:

  • improve all Australian justice systems so that they comprehensively deliver
    on the justice needs of Aboriginal peoples and Torres Strait Islanders in a fair
    and equitable manner
  • reduce over-representation of Aboriginal and Torres Strait Islander
    offenders, defendants and victims in the criminal justice system
  • ensure that Aboriginal and Torres Strait Islanders feel safe and are safe
    within their communities
  • improve justice outcomes for Aboriginal peoples and Torres Strait Islanders
    by reducing the level of alcohol and substance abuse within Indigenous
    communities
  • strengthen Indigenous communities, with whole of government and other
    partners, so that improvements in law and justice and safety can be sustained in
    the long
    term.[161]

Further,
the Framework notes that:

Reducing over-representation of Aboriginal peoples and Torres Strait
Islanders in the criminal justice system will have a positive effect on
Indigenous communities and families especially in the long term, as it is a
precursor to improvements in the areas of housing, education and
employment.[162]

These goals connect with justice reinvestment strategies and the framework
could be a vehicle for driving the justice reinvestment agenda across
jurisdictions given the right advocacy and support. Although the framework is
very clear about the non prescriptive nature, there is an implementation and
monitoring capacity built in. The framework has an emphasis on identifying:

a particular priority area of the Framework for national analysis and
discussion. This would have the effect of showcasing good practice and engaging
with stakeholders on the practical applications and areas for improvement, and
could take the form of a conference or forum. Where relevant, this forum could
be undertaken in concert with the National Justice Chief Executive Officers
(NJCEOs) which is a group formed under
SCAG.[163]

Justice reinvestment would be an excellent priority area for the SCAG working
group to take up, leading to pilot projects in appropriate areas.

^top

2.5 Conclusion

Albert Einstein famously defined insanity as ‘continuing to do the same
things and expecting a different result’. This is exactly the sort of
madness that we see in the Indigenous interactions with the criminal justice
system. We need to try something fundamentally different to solve this
problem.

I believe that justice reinvestment might just be the approach we are looking
for. It has a strong methodology and evidence base. It has succeeded in some of
the toughest, most unlikely places in the United States. If the people of Texas,
notorious for their ‘lock ‘em up and throw away the key’
mentality can achieve good results, I am hopeful that Australia can also take up
the challenge.

Part of the reason justice reinvestment has appealed in the USA is because it
saves money, or at least reins in out of control corrections spending. It is a
way of talking about imprisonment as value for money and shifting the discourse
to economics and away from punitive emotions. These ideas add another
perspective to the ‘law and order auction’ that goes on in
Australian politics each election cycle. It is time to challenge our politicians
to imprison less for the good of our Indigenous communities as well as the
bottom line.

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 addressing
Indigenous imprisonment.

Successful public policy is often a product of the times. At the moment there
are budgetary restrictions looming on the horizon but there are also some
government commitments to address issues of social inclusion and closing the gap
for Indigenous Australians. Justice reinvestment connects with both of these
government policy priorities and could add much to the attempts to achieve
Indigenous equality.

It is time that Indigenous over-representation in criminal justice system was
treated as the urgent human rights issue that it is. I have set out a possible
way of tackling this problem based on international experience and consideration
of the situation in Australia. It is time that governments took a new approach
to this old problem.

Recommendations

2.1 That the Australian Government, through COAG, set criminal justice
targets that are integrated into the Closing the Gap agenda.

2.2 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.

2.3 That the Australian Social Inclusion Board, supported by the Social
Inclusion Unit, add justice reinvestment as a key strategy in the social
inclusion agenda.

2.4 That all state and territory governments consider justice reinvestment
in tandem with their plans to build new prisons. That a percentage of funding
that is targeted to prison beds be diverted to trial communities where there are
high rates of Indigenous offenders.

^top


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focus on rehabilitation and reintegration for those who are imprisoned based on
social democratic
principles.
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[91] SCRGSP (Steering Committee for the Review of Government Service Provision), Overcoming Indigenous Disadvantage: Key Indicators 2007, Productivity
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[92] M
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[93] S
Chen, T Matruglio, D Weatherburn and J Hua, The transition from juvenile to
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[94] T
Vinson, Dropping off the edge: the distribution of disadvantage in
Australia
(2007).
[95] Social distress: low family income, rental stress, home purchase stress,
lone person households. Health: low birth weight, childhood injuries,
deficient immunisation, disability/sickness support, life expectancy, mental
health patients, suicide. Community Safety: confirmed child maltreatment,
criminal convictions, prison admissions, domestic violence. Economic:
unskilled workers, unemployment, long-term unemployment, dependency ratio, low
mean taxable income, computer use/access to internet. Education: non
attendance at pre school, incomplete education, early school leaving, post
school qualifications. Community engagement: membership of local groups,
membership of groups that tackle local problems, local volunteering, help from
neighbours when needed, feel safe after dark, trust people, attendance at local
community events, feel valued by
society.
[96] T Vinson, Dropping off the edge: the distribution of disadvantage in Australia (2007).
[97] Excluding NT because
the data was not available and the ACT and Tasmania due to no areas identified
with significant Indigenous
population.
[98] T Vinson, Dropping off the edge: the distribution of disadvantage in Australia (2007), p 31.
[99] N
Biddle, Ranking Regions: Revisiting an Index of Relative Indigenous
Socioeconomic Outcomes,
Centre for Aboriginal Economic Policy Research
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[100] N
Biddle, Ranking Regions: Revisiting an Index of Relative Indigenous
Socioeconomic Outcomes,
Centre for Aboriginal Economic Policy Research
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[101] CAEPR research reproduced
in C Graham, ‘The Great Divide’ National Indigenous Times, 15
October, 2009, p 17.
[102] Snap
shot data from 30 June
2008.
[103] Data from 1 July
2007-30 June 2009.
[104] Data
from 1 July 2007-30 June
2009.
[105] Snap shot data 30
May 2009.
[106] Data from
2007-2008.
[107] Australian
Bureau of Statistics, Population Distribution, Aboriginal and Torres Strait
Islander 2006
. At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4705.0Main+Features12006?OpenDocument (viewed 11 August 2009).
[108] See Social Justice Report 2004 for further
details.
[109] J Lawrence in M
McLaughlin, ‘Indigenous incarceration rate jumps’, 7.30 Report, 6 July 2009.
[110] G Dooley
in P Toohey, ‘One-way traffic into obsolete, overcrowded jails’, The Australian, 28 March
2009.
[111] G Dooley in P
Toohey, ‘One-way traffic into obsolete, overcrowded jails’, The
Australian,
28 March
2009.
[112] M McLaughlin,
‘Indigenous incarceration rate jumps’, 7.30 Report, 6 July
2009.
[113] ABC News, ‘NT
has ‘one of the highest’ jail rates’, ABC News Online,
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[114] C
Cunneen in M McLaughlin, ‘Indigenous incarceration rate jumps’, 7.30 Report, 6 July
2009.
[115] G Dooley in P
Toohey, ‘One-way traffic into obsolete, overcrowded jails’, The
Australian,
28 March
2009.
[116] G Dooley in P
Toohey, ‘One-way traffic into obsolete, overcrowded jails’, The
Australian,
28 March
2009.
[117] National Indigenous
Drug and Alcohol Committee, Bridges and barriers: Addressing Indigenous
incarceration and health
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At http://www.nidac.org.au/ (viewed 22
July 2009).
[118] National
Indigenous Drug and Alcohol Committee, Bridges and barriers: Addressing
Indigenous incarceration and health
, Australian National Council on Drugs
(2009), p 6. At http://www.nidac.org.au/ (viewed 22 July 2009).
[119] National Indigenous Drug and Alcohol Committee, Bridges and barriers:
Addressing Indigenous incarceration and health
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on Drugs (2009), p 6. At http://www.nidac.org.au/ (viewed 22 July
2009).
[120]J Dearden and J
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[121] National Indigenous Drug and Alcohol Committee, Bridges and barriers:
Addressing Indigenous incarceration and health
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on Drugs (2009), p 5. At http://www.nidac.org.au/ (viewed 22 July
2009).
[122] National
Indigenous Drug and Alcohol Committee, Bridges and barriers: Addressing
Indigenous incarceration and health
, Australian National Council on Drugs
(2009), p 5. At http://www.nidac.org.au/ (viewed 22 July 2009).
[123] SCRGSP (Steering Committee for the Review of Government Service Provision), Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity
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[124] National Indigenous Drug and Alcohol Committee, Bridges and barriers:
Addressing Indigenous incarceration and health
, Australian National Council
on Drugs (2009), p 7. At http://www.nidac.org.au/ (viewed 22 July
2009).
[125] National
Indigenous Drug and Alcohol Committee, Bridges and barriers: Addressing
Indigenous incarceration and health
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(2009), p 7. At http://www.nidac.org.au/ (viewed 22 July 2009).
[126] Australian Human Rights Commission, Preventing crime and promoting rights for
Indigenous young people with cognitive disabilities and mental health issues
(2008). At http://www.humanrights.gov.au/social_justice/publications/preventing_crime/index.html (viewed 24 July 2009).
[127] For good practice examples see Social Justice Report 2007 and Social
Justice Report 2008.

[128] M Willis, Reintegration of Indigenous prisoners: key findings, Australian
Institute of Criminology Trends and Issues in Crime and Justice no. 364 (2008).
At http://www.aic.gov.au/documents/F/2/8/%7BF2879E5D-AD11-436F-97CB-ED7AB17D7B0F%7Dtandi364.pdf (viewed 24 July 2009).
[129] M
Willis, Reintegration of Indigenous prisoners: key findings, Australian
Institute of Criminology Trends and Issues in Crime and Justice no. 364 (2008).
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[130]L
Behrendt, C Cunneen and T Libesman (eds), Indigenous Legal Relations in
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(2009), p
141.
[131] S Vignarendra, S
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[132] S
Vignarendra, S Moffatt, D Weatherburn and E Heller, Recent trends in legal
proceedings for breach of bail, juvenile remand and crime,
NSW Bureau of
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[133] NSW Bail Act 1978.
[134] C
Franklin, Communication with the Social Justice Commissioner’s Office, 24
July 2009.
[135] N Skinner,
Communication with the Social Justice Commissioner’s Office, 27 July
2009.
[136] N Skinner,
Communication with the Social Justice Commissioner’s Office, 27 July
2009.
[137] S Vignarendra, S
Moffatt, D Weatherburn and E Heller, Recent trends in legal proceedings for
breach of bail, juvenile remand and crime,
NSW Bureau of Crime Statistics
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[138] C
Franklin, Communication with the Social Justice Commissioner’s Office, 24
July 2009.
[139] C Franklin,
Communication with the Social Justice Commissioner’s Office, 24 July
2009.
[140] C Franklin,
Communication with the Social Justice Commissioner’s Office, 24 July
2009.
[141] A Horin,
‘Juvenile Justice report declared a state secret’, Sydney Morning
Herald
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[142] Minister for Juvenile Justice, Youth, Volunteering and Minister assisting the
Premier on Veterans Affairs, ‘Government to Review NSW Juvenile Justice
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[143] Mandatory sentencing laws passed 21 September 2009 see Criminal Code
Amendment Bill 2008.

[144] See Social Justice Report
2007.

[145]Australian
Institute of Criminology, Indigenous Victims of Crime (2004). At http://www.aic.gov.au/en/publications/current%20series/cfi/61-80/cfi079.aspx (viewed 10 September
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[146] SCRGSP (Steering
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[147] NSW Department of
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[158] Standing Committee of Attorneys General, Communiqué August 2009.
At http://www.scag.gov.au/ (viewed 10
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[159] Standing
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National Law and Justice Framework 2009-2015
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[160] Standing Committee of Attorneys General, Communiqué August 2009,
At http://www.scag.gov.au/ (viewed 10
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[161] Standing
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National Law and Justice Framework 2009-2015,
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