Will Justice Reinvestment Solve WA's Aboriginal Incarceration Crisis?

Curtin Public Policy Forum

Acknowledgements

It is with respect and gratitude that I acknowledge that we sit today on the lands of the Whadjuk Noongar Peoples.

My people are the Gangulu from the Dawson Valley in Central Queensland. On behalf of my Elders I also pay tribute to your Elders, both past and present, for their continued struggle for their country and their culture.

Thank you for the invitation to speak with you today. The Curtin Public Policy Forum always seems to draw varied and interesting speakers so I hope my presentation today will continue this tradition.

What I want to talk about with you today is the crisis we face in Aboriginal and Torres Strait Islander incarceration. More to the point, I want to show how justice reinvestment can be an important tool in dealing with this crisis in Western Australia.

But firstly, let me start by giving you a brief outline of this position that I currently occupy, the Aboriginal and Torres Strait Social Justice Commissioner, and a snapshot of my agenda.

2013 marks the 20th year since this position came into being as a result of the Native Title Act, the Royal Commission into Aboriginal Deaths in Custody and a Human Rights & Equal Opportunity Commission Inquiry into Racial Hatred.

Professor Mick Dodson was the first followed by Dr Bill Jonas, Dr Tom Calma and Ms Zita Antonios. When I first started in this position I was asked if any of these previous Commissioners had left any words of advice. I tell them ‘no’ but they all left really big shoes to fill. So it is with some trepidation and a big dose of humility that I began my work knowing that the bar has been set fairly high. What was going to be my agenda, my plan for these five years?

To begin with I have some statutory duties. I’m required to provide to the Australian Parliament in the annual Social Justice Report and I also provide a report on Native Title. I’m also required to:

• review the impact of laws and policies with regard to Aboriginal and Torres Strait Islander peoples
• promote an Indigenous perspective on issues and
• monitor the enjoyment and exercise of human rights of Aboriginal and Torres Strait Islander Australians

But in a real sense, I’m handed these general directions and it’s up to me to sort out my priorities in terms of how I do what the legislation requires of me.

As Social Justice Commissioner I have only six staff, so I quickly realised that it would be unrealistic to pick even one of the myriad of challenges facing Aboriginal and Torres Strait Islander peoples - housing, health, education to name a few and expect to fix it by January 2015.

I believe that fixing these issues will require the intergenerational commitment of the whole nation.

After listening and accepting the reality of the limitations of this position compared to the enormity of the task confronting us at the centre of my priorities is the belief that we need to firstly develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and the rest of the Australia.

Secondly, we need to develop stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples and all levels of government.

And, perhaps even more importantly, we need to develop stronger and deeper relationships between ourselves as Aboriginal and Torres Strait Islander peoples

Relationships are built on understanding, dialogue, tolerance, acceptance, respect, trust and reciprocated affection.

Relationships are destroyed by misunderstanding, intolerance, and a lack of acceptance, a lack of dialogue, mistrust and a lack of respect.

Part of my commitment to building relationships is achieving constitutional recognition for Aboriginal and Torres Strait Islander people and the implementation of the Declaration on the Rights of Indigenous Peoples.

I am very realistic about the challenges but if something is difficult, it does not mean we should abandon it. On the contrary, I believe the bigger the challenge, the bigger the gain. Many of the issues facing Aboriginal and Torres Strait Islander communities have been put on the too hard pile but none more so than the over representation of our people in the criminal justice system.

With this in mind, let me return to the question that I framed for the topic of today’s speech: Will justice reinvestment solve Western Australia’s crisis in Aboriginal incarceration?

Firstly, it is undeniable that the over representation of Aboriginal and Torres Strait Islander people in the criminal justice system is one of the most urgent human rights issues facing Australia.

And Western Australia is the epicentre of this crisis with some of the worst rates of imprisonment in the country. Aboriginal adults are 20 times more likely to be imprisoned than non-Indigenous adults. Aboriginal and Torres Strait Islander make up 42% of the WA adult prison population and 70% of the juvenile detention population.

But let’s look at it another way. The United States ranks number one when it comes to imprisoning people and has a rate of 760 people in prison per 100 000. Australia does comparatively well, ranked 104th with 169 people imprisoned per 100 000. However, if Australia is judged on its Aboriginal and Torres Strait Islander imprisonment rate, it is a disturbing story. The rate of imprisonment for Aboriginal prisoners in WA is around 3 389 per 100 000, almost 4 1/2 times the United States rate.

I’m sure leading the world in locking up our first peoples is not a distinction that Western Australia wants.

The Western Australian prison system is bursting at the seams- 13 out of 14 prisons are overcrowded and prisons are it is around 1400 inmates beyond capacity.

Over crowded prisons breed violence. We can see this in the appalling violence that fuelled the riot at Banksia Hill juvenile detention centre. I am not excusing the actions of these young people- I am appalled at the damage caused. 

However, from a human rights and even a pure risk management perspective, there are good reasons for providing humane and adequate conditions in custody. The consequence of the moving the young people to adult custody raises serious concerns. Furthermore, when prisons are over crowded, inmates can’t access education and treatment services as readily so they leave custody without being anywhere near ready to transition to a crime free life.

All of this points to the conclusion that the current corrections situation for Western Australia is not acceptable or sustainable. The statistics paint a grim picture but we get even more of sense of the cost when we think about the human impact of imprisonment.

First and foremost, there is the impact on the victim. Let me be clear, the needs of victims, healing them, making them safe is always going to be a priority for me.  But somewhere and at some time we have to look at the offending.

Often it is hard to get past the horrific damage that offenders perpetrate. However, we need to look at the causes of offending, what makes people do these things and what can be done to prevent offending the first place and then to prevent the repeat offending.  Because if we do nothing at this end of the equation we will be condemned to forever repeating these cycles. 

I do not make excuses for offending, especially violent crime but I do think there is more we can do to prevent crime and create accountability.

Part of preventing crime is acknowledging the impact of offending and imprisonment on the broader Aboriginal and Torres Strait Islander community. Offenders, like victims, in many cases are parents, aunties and uncles. They have important social and cultural roles in their communities. Removing these people from their communities can weaken struggling Indigenous communities further. This is even more destructive if they are returning from a stint of in prison without the necessary rehabilitation and community reintegration as is so often the case.

Research indicates that a ‘tipping point’ may occur in communities once crime and incarceration reaches a certain point. This means that such damage is done to the community that they are less able to manage ‘social order through family or social groups [and] crime rates go up’.[1]

This is what we are seeing in many Aboriginal and Torres Strait Islander communities. For instance, research has shown that 20% of Aboriginal and Torres Strait Islander children have a parent or carer in prison. This can have intergenerational effects.  Aboriginal and Torres Strait Islander prisoners are three times as likely as non-Aboriginal and Torres Strait Islander prisoners to have had a parent in prison as a child.

When I talk about justice reinvestment I like to set out two caveats. The first is that I’m not talking about not locking people up. There are some people, including some Aboriginal and Torres Strait Islander people, who need to be separated from society for a while. But let’s use prison as a real option of last resort.

Secondly, I prefer to talk about justice reinvestment as an opportunity to create safer communities, rather than just concentrating on reducing incarceration rates. I figure if we can create safer communities it means less offending which in turn will mean less people going to jail.

To give you a perspective on the situation in our communities, a 2009 Productivity Commission Report tells us that Indigenous people were hospitalised as a result of spouse or partner violence at 34 times the rate of non-Indigenous people.

Data from the Australian Bureau of Statistics tells us that violence in Indigenous situations has escalated in past decades. In 2002 nearly one-quarter of Indigenous people aged 15 years or over reported being a victim of physical or threatened violence in the previous 12 months; nearly double the rate reported in 1994.

It is tragic also that family violence escalates to homicide in Indigenous situations at rates that are double that of the non-Indigenous population.

The data tells us that family violence is overwhelmingly present as a factor in Indigenous homicides. In comparison with the rest of the Australian population, Indigenous homicides are most likely to occur between intimate partners.

An Australian Institute of Criminology report of Indigenous homicides from 1990 to 2000 found that 38 percent of Indigenous homicides were between intimate partners, 19 percent involved other family, 27 percent involved friends and acquaintances and only 3 percent involved strangers.

We know too that there is a gender element to the statistical picture. Indigenous women are 45 times more likely than non-Indigenous women to be victims of domestic violence. And the homicide rates of Indigenous women are between 9 and 23 times higher at different times in the life cycle than they are for non-Indigenous women.

With these figures you can see why we need to create safer communities.

We also know that past attempts to do this have failed. Some worthy initiatives have been put in place but the bottom line remains that what we are doing at a system wide level is not working. If it were working, we would be seeing a reduction in Aboriginal and Torres Strait Islander imprisonment, rather than the 46% increase since 1996.

When something isn’t working, we need to be bold and creative our thinking. We also need to follow the evidence.

This is what first led us to consider justice reinvestment back in 2009.

Justice reinvestment is a criminal justice approach that diverts a portion of the money for imprisonment to local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested into services that address the underlying causes of crime in these communities.

So how does it work?

Justice reinvestment is essentially about investing our resources at front end, to prevent crime, rather than the back end, in prisons.

This focus on early intervention is not new. However, justice reinvestment is different because it invests early intervention services in specific communities where there is the greatest number of offenders and community need. Most importantly it is done with the communities contributing to how these funds are spent to prevent crime.

Justice reinvestment is a data driven, evidence based and fiscally sound policy.

George Soros’s Open Society Institute developed justice reinvestment in the United States. Since 2006 it has been implemented in 17 states. It is interesting that it is predominantly conservative Republican States that have seen the social and economic benefits of justice reinvestment.

There have been some terrific successes. For example, in Kansas they have reduced imprisonment from a record high and avoided building a new prison. This is expected to save $80 million over five years.

Texas reinvested $241 million that would otherwise have been spent on the construction of prisons on treatment programs. The prison population stopped growing for the first time in decades.

It is interesting to draw similarities between some of these states and Western Australia. Prison overcrowding and escalating imprisonment and capital costs is often what brought many of these States to the idea of justice reinvestment. To me, the situation in Western Australia is very similar. I’ve already mentioned the over crowding and funding challenges facing Western Australia.

But many of these states also have similar levels of ‘tough on crime’ legislation, policy and rhetoric as Western Australia. In the interests of fiscal responsibility, even the ‘wild west’ of Texas was able to let rationality rule over the fear based ‘law and order’ politics.
The evidence on justice reinvestment from the United States is great but what really interests me is how we can make it work for our Aboriginal and Torres Strait Islander communities.

There are persuasive arguments for trialling this approach with Aboriginal and Torres Strait Islander communities given the high levels of over representation. The principles of a justice reinvestment approach including:

• localism
• community control and
• better cooperation between local services

also align with what we know about human rights based practice in Aboriginal and Torres Strait Islander service delivery.

Justice reinvestment is also in line with the United Nations Declaration on the Rights of Indigenous Peoples- the foundational document in human rights for all Indigenous peoples.  The Declaration states that Aboriginal and Torres Strait Islander peoples have the right to self-determination. We also have the right to participate in decision-making that affects us and the right to the improvement of our economic and social conditions.

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.

If done properly, justice reinvestment provides offenders with a form of accountability to their community. When offenders are sent to prison, they are accountable to society in general. The offender is removed from the community and the family, only to return after a stint inside. This isn’t the same as being accountable to the community in which the offending behavior occurs. Accountability to community is about making communities safer.

Increasing the range of community based diversion and treatment programs- especially if they are owned and operated by the local Indigenous community- is also a mechanism for increasing offender accountability. Justice reinvestment has the potential to provide a secure funding base for this sort of work.

Advocates like me have been arguing for justice reinvestment since 2009 and we are seeing growing support.

A Senate Inquiry report was tabled in June on the value of justice reinvestment in Australia. The Senate Inquiry travelled to Perth to hear evidence from a number of NGOs, legal organisations and Aboriginal organisations.

Western Australia has led strong advocacy for justice reinvestment.
WA’s first female judge, Antoinette Kennedy and Chief Justice Wayne Martin have supported justice reinvestment. One of the first politicians to support justice reinvestment in Australia was Paul Papalia, the Shadow Minister for Corrective Services. 

Lately we have also seen some promising comments from Minister for Corrective Services, Joe Francis. In May this year, Minister Francis said:

Call it justice reinvestment or prevention programs or whatever it might be, the principles of spending money to get people on the right track to stop them breaking the law and ending in jail makes sense.[2]

He went further and said that of the $700 million spent on corrective services each year, surely more than $2 million should go to prevention.

I’ve also read with interest the WA Police Commissioner, Karl O’Callaghan’s blog in support of justice reinvesment. He writes:     

Unless we adopt a ‘vaccination’ approach to crime prevention we are always gong to be treating the symptoms rather than the causes. Current thinking around justice re-investment is part of this approach.[3]

Based on some research that maps the areas where the most vulnerable children live and offending levels he says:

These statistics provide a compelling case for us to begin to reform our views about how crime is best tackled in our community and to banish the simplistic notion that suggests that more police equals less crime…Given the location data we know where to focus our efforts…in my view the community need to show their support for reinvestment of the money spent on responses to crime and not be lured into quick fixes.[4]

I am encouraged to hear people like the Police Commissioner and Minister coming around on this issue. They will find broad support among NGOs through the Western Australian Council of Social Services who produced an issues paper in February this year. Even more importantly, I believe they will find a real appetite for justice reinvestment in Aboriginal communities.

I cannot stress enough how important it is that Aboriginal communities are front and centre if we are to make justice reinvestment work. That is why I am so excited about the initial work I have been doing at the invitation of the Bourke community in NSW.

Bourke is an isolated town in North Western NSW, around 8 hours drive from Sydney. Not necessarily as remote as some of your Aboriginal communities in WA but nonetheless facing big challenges in creating a safer community. The issues will certainly be different for WA communities but I would like to just give you a sense about how we can get the justice reinvestment ball rolling.

Bourke has a population of nearly 3000 people, 30% Aboriginal and Torres Strait Islander. There are over 50 community organisations servicing the area and 40 Police. The problems of service integration have been well documented.

Our research has shown that the cost of incarcerating the 47 Aboriginal and Torres Strait Islander young people last year was $2.2 million. If you can reduce this by 20% you could have half a million dollars to reinvest in the community.

One of Bourke’s strengths is the established local governance structure. But despite this, what I’ve been hearing is that the community is not getting enough of a say into how money is spent and the way programs are run. I see justice reinvestment as a mechanism to bring the community into these conversations and decisions.

While funding is important, I believe that community participation and government accountability will ultimately be the drivers for success. We are yet to do service mapping but it would seem on the face of it that there is a good amount of money being spent in Bourke- but not in adequate partnership and consultation with the community.

It is still early days but I’m really heartened by the courage of the people of Bourke to step up and face these issues in an inclusive way. Last visit, Megan Mitchell, our new national Children’s Commissioner also came along and it was fantastic to see the young people have a voice in this process.

There was a really touching moment at the end of our big community meeting when one of the Elders said that this was the first time she had seen the young people take part in a meeting like this and how proud she was of them. You could see those kids sitting up straighter and feeling really valued and heard.

Giving our young people pride is not just about feeling warm and fuzzy. A sense of connection and value are some of the individual building blocks of a safe community. Justice reinvestment has a role to play in building stronger communities where all members are safe, accountable and valued.

I hope I will have the opportunity to engage with a number of people and organisations about justice reinvestment while I am over in Western Australia. I believe the conditions are ripe for getting justice reinvestment firmly on the agenda.

Thank you.

 

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