Justice reinvestment and its importance to
Aboriginal communities

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

Aboriginal Legal Service Annual Conference

Novotel Hotel, Wollongong

Wednesday 1 August 2012

Introduction

I would like to begin by paying my respects to the Dharawal people, the traditional owners of the land where we gather today.

I am a Gangulu man from Central Queensland. Gangulu country takes in what is known as the Dawson Valley area and extends to just east of the Carnarvon Gorge.

So, as is our practice, can I pass on from the Gangulu peoples to the Dharawal peoples our greetings and acknowledgements for your continued resilience and determination to keep your culture alive and thriving over the last 220 years? I pay my respects to your elders, to your ancestors and to those who have come before us.

I would also like to acknowledge all my Aboriginal and Torres Strait Islander brothers and sisters here today, and especially:

• the Chairperson of the ALS, Iris White
• Members of the ALS Board
• the CEO of the ALS, Phil Naden.

Today I am talking not only about the importance of justice reinvestment but the necessity of it for our communities.

Justice reinvestment is a strategy to help reverse the high levels of Indigenous incarceration in our criminal justice systems and to heal our communities. It does this by reorientating the criminal justice system to prevention, rather than detention, and concentrates on investing resources into communities where there are high concentrations of offenders.

Before I talk in too much detail about this strategy, I want to first spend some time highlighting why a change in approach is not only important, but necessary – particularly for our Aboriginal and Torres Strait Islander communities.

Firstly, what we’re doing now is simply not working.

It has been more than 20 years since the final report of the Royal Commission’s Inquiry into Aboriginal Deaths in Custody. And it is with sadness that I reflect on the lack of progress during this time.

In the last five years alone, we as a nation witnessed two devastating examples of the ramifications of Aboriginal and Torres Strait Islander incarceration and over policing with the death of Mulrunji Doomagee on Palm Island in Queensland. And on the other side of the country, Mr Ward, who died of heat stroke as a result of being transported from Laverton to Kalgoorlie in the back of a prison van.

We are seeing whole generations of Aboriginal and Torres Strait Islander men being removed from our communities, large numbers of parents being separated from their kids and young people taken away from their support networks.

All of this drains our community’s capacity to tackle crime and build safe communities.

The statistics are all too clear. Nationally – and in NSW – Aboriginal and Torres Strait Islander people are more than 14 times more likely to be imprisoned than non-indigenous people.^[1]

In NSW, Aboriginal young people make up 2.2% of the general population but more than 50% of young people in detention. Indigenous juveniles are 28 times more likely to be placed in juvenile detention than their non-indigenous counterparts.^[2]

These imprisonment rates are unacceptably high.

Secondly, communities experience destructive consequences as a result of high levels of Indigenous incarceration and recidivism.

The theory of justice reinvestment supposes that a high number of offenders come from a few communities. If large numbers of offenders are being removed from a single community this disrupts social networks and weakens the community.^[3]

The impact of incarceration is compounded because the communities with high imprisonment rates are already disadvantaged.^[4] 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.^[5]

Offenders contribute financially; have family and cultural obligations; and other social contributions.^[6] 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.^[7]

Many offenders are also parents. Some of the initial negative consequences of imprisonment on children of prisoners 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.^[8]

Long term, this cycle perpetuates as children of prisoners are five times more likely to be imprisoned.^[9]

Thirdly, it makes good economic sense.

In Australia we spend over $2.6 billion on adult imprisonment every year.^[10] As Indigenous prisoners make up about a quarter of the prison population, we can estimate that we would spend at least $650 million on Indigenous adult imprisonment a year.

To put it another way, if Indigenous adults were represented in prisons at the same rate as non-Indigenous Australians, we could save around $610 million a year.

Imagine the savings if we could prevent more people from entering the justice system in the first place.

Justice reinvestment is about empowering communities

The Royal Commission exposed a system of public institutions that have utterly failed Aboriginal and Torres Strait Islander peoples. It was about making a series of proposals to guide governments in how to ‘right’ the wrongs through greater respect for Indigenous cultures and on the basis of effective participation and self-determination.

The United Nations Declaration on the Rights of Indigenous Peoples provides us with the tools we need. The Declaration states that Aboriginal and Torres Strait Islander peoples have the right to self-determination.^[11] We also have the right to participate in decision-making that affects us^[12] and the right to the improvement of our economic and social conditions.^[13]

Justice reinvestment is a policy which is built on effective participation and self-determination to improve our lives and the well-being of our communities by diverting our people away from jails and from the criminal justice system to community-led development programs.

Under this approach, a portion of the public funds that would have been spent on covering the costs of imprisonment are diverted to local communities that have a high concentration of offenders. The money is invested in community programs, services and activities that are aimed at addressing the underlying causes of crime in those communities.

The way I see it, governments identify the high stakes communities and then work intensively with the communities to look at why crime is occurring and what they think can be done to address it. Governments and communities identify what cultural resources – like Elders and community justice groups –can be utilised and ultimately develop a funded plan to tackle crime.

This might mean more money for substance abuse or mental health programs. It might mean improving the way Elders and community justice groups work with courts. It might mean trialling new ways to deal with things like driving offences or it might mean healing programs.

But the bottom line is that the outcomes will be generated by the community itself in partnership with the government. This way of working is what will lead to better relationships and better criminal justice outcomes.

The beauty of justice reinvestment is that it shifts money away from imprisonment and into services for disadvantaged communities instead. Additional funding is not needed; it is just a more efficient use of money already allocated to corrections. As I said earlier, it makes good economic sense.

And just as important, justice reinvestment actually gives the community a strong voice in what they think are the problems causing crime and the solutions necessary to fix it. This is fundamental to a human rights based approach as set out in the Declaration and key to rebuilding our relationships with government.

Aboriginal and Torres Strait Islander community engagement and partnerships are the cornerstones of effective policy. Indigenous communities have the answers to their own problems and it is time we started listening to them in the criminal justice sphere.

Learning from overseas experience

The concept of justice reinvestment originally came from the US. It has been shown that imprisonment rates are dropping in places where justice reinvestment is being implemented. For example, there was a 72% drop in juvenile incarceration in Oregon, USA after money was reinvested in well-resourced restorative justice and community service programs for juvenile offenders.^[14]

In Texas, a state renowned for its ‘tough on crime’ policies that led to a 300% increase in the prison population between 1985 and 2005^[15], justice reinvestment is also having a significant positive impact.

Let me use Texas to demonstrate how it works. In Texas they had no trouble working out which communities to target. Only five counties accounted for more than half the people imprisoned.^[16]

To tackle these systemic issues, the Texas Legislature started to re-orient its criminal justice system, putting more money into substance abuse treatment, diversion, and half way houses. To do this they reinvested $241 million that would have been spent on building a new prison and a further $210 million the following financial year.^[17]

The savings didn’t just get reinvested in substance abuse services. Funding was also allocated to a Nurse-Family Partnership program in the high stakes communities to provide true early intervention in the first two years of a child’s life.^[18]

Two years after the introduction of justice reinvestment strategies the growth in imprisonment was halted in Texas for the first time in years with reductions expected in future evaluations.^[19]

Kansas is also another place where justice reinvestment has worked well. Kansas found similar trends and put in place similar reforms to Texas. They also built an innovative community development program called the New Communities Initiative for the high stakes communities.

The New Communities Initiative brings together state, county and community leaders to improve public safety, education and housing for the disadvantaged neighbourhoods in Central North-East Wichita.

In a truly holistic, cross sector way they have engaged with community to tackle preventative issues. In the first year they set up a program for children of incarcerated parents, created a local job placement agency, diverted portions of the city liquor tax revenue to be spent on substance abuse treatment targeting these neighbourhoods, expanded the healthy babies program, reallocated school resources and set up a summer program employing young people from these areas to landscape and revitalise their neighbourhoods.^[20]

As a result, Kansas has experienced a 7.5% reduction in their prison population, parole revocation is down by 48%, and the reconviction rate for parolees has dropped by 35%.^[21]

So we know it works. It is now essential we prioritise the implementation of a justice investment approach in NSW and across Australia.

NSW Justice Reinvestment for Aboriginal Young People campaign

As you would be aware, the Campaign for Justice Reinvestment for Aboriginal Young People was launched in May to urge the NSW Government to:

• adopt a policy of justice reinvestment, and

• establish an independent Justice Reinvestment Advisory Group to oversee the implementation of justice reinvestment and monitor outcomes for Aboriginal young people.

This Campaign – which brings together people and organisations that support justice reinvestment – is a great start. But we must continue to pressure the Government to realise the benefits of justice reinvestment.

For justice reinvestment to be broadly successful, we need bipartisan support. We need both sides of government to agree on the urgency of reducing imprisonment, based on both their fiscal and social responsibility.

As I have outlined above, success also requires partnerships, better relationships and government departments working together. For example, a pilot program would probably need the cooperation of the courts, police, juvenile justice or corrections, community services, health, as well as NGOs and of course the community.

The battle to implement justice reinvestment in NSW and across Australia is being fought but more needs to be done to achieve these targets.

Conclusion

I would like to conclude today by emphasising that we must be the agents of our own change.

Self-determination is a central element of the Declaration. This means that we, as Aboriginal and Torres Strait Islander peoples, must be able to participate in the policy decisions and processes that directly relate to our interests. The role of governments is to assist us to fully and effectively participate in decisions that affect us. In this way we are an essential part of the solution.

I look forward to working with you in changing this space to one where we see a turnaround in the numbers of Aboriginal and Torres Strait Islander peoples in prisons and detention centers, and helping them to find their path home.

Thank you.

^[1] Australian Bureau of Statistics (ABS), Prisoners in Australia (2011). At http://www.abs.gov.au/ausstats/abs@.nsf/Products/875C813AF74635EBCA25795F000DB4EF?opendocument (viewed 13 July 2012).
^[2] SCRGSP (Steering Committee for the Review of Government Service Provision),Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity Commission (2009). At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 1 November 2010).
^[3] National Institute of Justice, When Neighbors Go to Jail: Impact on Attitudes About Formal and Informal Social Control, US Department of Justice, 1999. At http://www.ncjrs.gov/pdffiles1/fs000243.pdf (viewed 26 October 2009).
^[4] National Institute of Justice, When Neighbours Go to Jail: Impact on Attitudes About Formal and Informal Social Control, US Department of Justice, 1999. At http://www.ncjrs.gov/pdffiles1/fs000243.pdf (viewed 26 October 2009).
^[5] D Rose and T Clear, ‘Incarceration, Social Capital and Crime: Implications for Social Disorganization Theory’ (1998) 36, (3) Criminology, p 453.
^[6] D Rose and T Clear, ‘Incarceration, Social Capital and Crime: Implications for Social Disorganization Theory’ (1998) 36, (3) Criminology, p 451.
^[7] T Clear, Imprisoning Communities (2007), p 9.
^[8] S Cox, Little children of women in prison are sacred too, (Paper for the Sisters Inside ‘Is Prison Obsolete?’ Conference, Darwin, 28 June 2007). At http://www.sistersinside.com.au/media/conference2007/SusanCoxs.pdf (viewed 3 March 2009).
^[9] Shine for Kids (Children of Prisoners Support Group) http://www.shineforkids.org.au/why_we_are_needed/index.htm (viewed 3 March 2009).
^[10] Australian Institute of Criminology, Australian Crime: Facts and Figures 2008, p 110. At http://www.aic.gov.au/documents/E/4/0/%7BE4031E6F-031D-415C-B544-8CE865A3CA0C%7Dfacts_and_figures_2008.pdf (viewed 1 November 2010).
^[11] Declaration, art 3
^[12] Declaration, art 18
^[13] Declaration, art 21
^[14] S Tucker and E Cadora, Ideas for an Open Society: Justice Reinvestment, Open Society Institute (2003), p 6. At http://www.soros.org/resources/articles_publications/publications/ideas_20040106/ideas_reinvestment.pdf (viewed 1 November 2010).
^[15] The Council of State Governments Justice Center, Justice Reinvestment State Brief: Texas (2007), p 2. At http://justicereinvestment.org/states/texas/pubmaps-tx (viewed 1 November 2010).
^[16] The Council of State Governments Justice Center, Justice Reinvestment State Brief: Texas (2007), p 3. At http://justicereinvestment.org/states/texas/pubmaps-tx (viewed 1 November 2010).
^[17] The Council of State Governments Justice Center, Justice Reinvestment State Brief: Texas (2007), p 6. At http://justicereinvestment.org/states/texas/pubmaps-tx (viewed 1 November 2010).
^[18] The Council of State Governments Justice Center, Justice Reinvestment State Brief: Texas (2007), p 6. At http://justicereinvestment.org/states/texas/pubmaps-tx (viewed 1 November 2010).
^[19] M Ward, ‘Drug program gets credit for halting prisoner increase’ Austin-American Statesman, 20 February 2009. At http://www.statesman.com/news/content/region/legislature/stories/02/20/0220treatment.html (viewed 1 November 2010).
^[20] New Communities Initiative, Summary of Pillar Group Accomplishments, http://www.nciwichita.com/NR/rdonlyres/66157E9C-ACD8-4639-B14A-718F80CF5ED2/0/Wichita2007SummaryOfAccomplishmentsEUSJH031708Final.pdf (viewed 1 November 2010).
^[21] Roger Werholtz, Hearing on Justice Reinvestment, Commerce, Justice Science and Related Agencies Appropriations Subcommittee US House of Representatives (1 April 2009).