MINORITY REPORT BY
COALITION SENATORS
Introduction
1.1
The promise inherent in a justice reinvestment ("JR") approach
to our criminal justice system holds great appeal: that is, by diverting focus
and resources away from a reactive approach to the incidence of crime and
towards a preventative approach, we drive down rates of offending, rates of
imprisonment and recidivism. The value of such an approach in social and
economic terms, if successfully implemented, needs no debate.
1.2
At the heart of this argument is the failure of our system of sentencing
and penal servitude to properly identify the causes of criminality and address
them so as to reduce the rate at which offenders return to prison and
perpetuate a criminal lifestyle. This problem is, arguably, as old as
Australia's establishment as a penal colony of Britain in the 18th century.
1.3
Coalition senators warmly endorse the principle of justice reinvestment.
However, we cannot endorse the approach taken in the majority report –
particularly the recommendations – because it overlooks two critical problems
in the Commonwealth implementing a new approach on JR:
a. The
dearth of evidence that any JR programs to date are sufficiently successful to
allow reduced spending on the court and prison systems.
b. The
criminal justice system (for the most part) and the prison system (in its
entirety) are the responsibility of the states and territories, not the
Commonwealth.
1.4
Coalition senators are broadly supportive of further investment in
exploring the potential of JR, but we see the approach emerging from the
majority report as one of the Commonwealth assuming policy and funding
leadership over JR across the nation, an approach which is potentially very
costly and which intrudes into the fundamental responsibilities of the second-tier
of Australian government.
Limitations on application
of Justice Reinvestment
1.5
In The Promise of Justice Reinvestment, the authors list some of the
risks with JR:[1]
-
Ambiguity
-
Lack of a clear theoretical and normative base
-
Potential to be used to justify 'disinvestment' strategies
-
The extent to which the 'rationality' of 'evidence-based' and
cost arguments fail to address the emotive and retributive sentiments central
to criminal justice politics
-
The difficulty in securing key pre-conditions in the Australian
context, including bipartisan approaches to law and order, and
-
The appropriate political structure for the devolution of funding
and responsibility.
1.6
In relation to bipartisanship, the article states:
Justice Reinvestment approaches require changes to
sentencing, parole and bail, and subsequent reinvestment in post release and
community programs – all of which may be difficult to implement where
opposition political parties continue to run a popular punitive 'tough on law
and order' line, seeking to exploit fear and division for perceived electoral
advantage.
1.7
In the absence of clear solutions to the problems Brown et al identify
at the state and territory level, a wholesale takeover of national leadership
in JR policy development by the Commonwealth would be ill-advised.
Role of the Commonwealth
in Justice Reinvestment
1.8
These problems at the state and territory government level demonstrate
the complexity in the field and the need to implement policy within context,
particularly if the aim in the policy is to have a harmonised and uniform
approach across the jurisdictions. It is already open to jurisdictions to
pursue harmonisation at the national level through COAG (in particular the
Standing Council on Law and Justice). This has often occurred when there is a
will and a demonstrated need to have a national approach to a particular
program.
1.9
However as the implementation involves the divestment of State monies
into particular State areas identified to have high statistics of recidivism,
the relevance and power of the Commonwealth (how to tell the States to spend
their budgets) is highly problematic. Under section 96 of the Constitution,
the Commonwealth can grant funds to States on any terms and conditions. However
this is not a coercive power and does also not extend to local governments (see
below).
1.10
The Promise of Justice Reinvestment also makes an important point about
the issue of cross jurisdictional co-ordination:
A second precondition is that in the Australian context it is
necessary to identify both an agency to take a coordination role...and the
political structure for devolution of funding and responsibility. Local
government authorities favoured in the UK are unlikely candidates in Australia.
Given that criminal justice is primarily a state function, it would seem that
state governments would need to take the lead (except perhaps in the Indigenous
area). Devolution of funding and responsibility might involve an expanded role
for NGOs, church, welfare and charitable organisations currently running local
social services, together with financial transfers to these agencies and within
and between government departments.
1.11
It would be difficult for the Commonwealth to have a role to redress
these apparent problems, particularly in the aftermath of the Williams case in
the High Court (the Chaplaincy case) where the chaplaincy scheme was not
supported by legislative underpinning, and where the court said that the
executive power (section 61) was insufficient to validate the scheme. In
relation to local governments, without constitutional change, the Commonwealth
cannot deal directly with local governments. It has to go through the states.
1.12
The fact is that the cockpit for implementation and reform on JR is the
states and territories, not the Commonwealth. The inquiry heard encouraging
evidence of initial signs of success from some JR programs being auspiced at
this level. The conditions governing the success or failure of such programs
may well vary from state to state, and even from region to region – particularly
to the extent that they involve indigenous communities. The "fine
touch" approach which State governments can engineer in these
circumstances may be better suited than a nationwide approach. In any event,
COAG provides mechanisms at Ministerial and bureaucratic levels to share best
practice.
Diversion of Resources Not
yet Warranted on the Evidence
1.13
The concept of diverging resources from the courts and prisons to JR
programs relies on some clear evidence that spending on the former can be
withdrawn as spending on the latter increases; unfortunately, no such evidence
was available to this inquiry.
1.14
Several organisations appearing before the committee gave evidence of JR
programs exhibiting signs of "success"; however, in no case did any
program proved sufficiently successful in diverging offenders from the criminal
justice system that some reduction of resourcing of that system would become
possible.
1.15
This problem was highlighted when officers of the Attorney General's
Department appeared before the committee in Canberra to discuss the national
evaluation of JR programs:
Senator HUMPHRIES: From the evidence you have seen
already, does it appear as though there are any outstanding programs that are
being run anywhere in the country which, if applied on a more universal basis,
could actually start to ratchet down significantly the cost of the criminal
justice system—bearing in mind that the ultimate objective of the justice
reinvestment movement is to stop building these prisons we are building and
close some of the ones we already have?
Mr Walter: I think the answer is no: there are no
stellar examples about which you would say, 'Wow, if we rolled this out across
the country, this would be fantastic'—out of those evaluations. A number of
them that were able to demonstrate outcomes were really around sentencing
courts and those kinds of things. And the outcomes they were demonstrating were
more around the integrity and legitimacy of the justice process rather than
having a big effect in terms of reducing recidivism or anything like that.[2]
1.16
To acknowledge the lack of such evidence at this time is not to deny
that such programs can or will in the future deliver results sufficient to
warrant a diversion of resources away from the criminal justice system. But it
is a stark warning that the premature diversion of resources could weaken the
protections afforded by our criminal justice system without in any way
lessening the pressures on it.
1.17
Coalition senators warmly endorse the programs underway across Australia
that seek to identify and deal with causes of criminal offending. We believe a
much greater focus must ultimately be put on such endeavours if we are to
ensure that the failings of our present system are addressed. But we do not
believe it is sound public policy to use the partial indicators of success from
such programs thus far as the basis for a major shift in jurisdictional
responsibility for such programs or, more fundamentally, for transferring
resources away from existing institutions on the basis of those partial
indicators of success.
1.18
Coalition senators accordingly recommend a continued Commonwealth role
in supporting programs at the state and territory level in pursuit of JR, and
the sharing of information with other jurisdictions to that end. But we cannot
support the approach of the committee majority that demands Commonwealth
leadership in this area or the commencement of major new funding programs. We
believe that this approach has the potential to cut across much good work going
on in state, territory and local government without necessarily producing any
better outcomes.
Senator
Gary Humphries |
Senator
Michaelia Cash |
|
|
Senator Sue Boyce |
Senator
Bridget McKenzie |
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