Skip to main content

Investing in Indigenous youth and communities to prevent crime

Aboriginal and Torres Strait Islander Social Justice

Investing in Indigenous youth and communities to prevent
crime

Indigenous young people, crime and justice conference

Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission

Australian Institute of Criminology

31 August 2009


Good morning everyone.

I’d like to begin by paying my respects to the Darug people, the
traditional owners of the land where we gather today. I pay my respects to your
elders, to the ancestors and to those who have come before us. And thank you,
Uncle Ray Leslie, for your generous welcome to country for all of us.

I’d also like to thank Attorney General McClelland for his opening
address. It is good to see that the government is taking the issue of Indigenous
over representation in the juvenile justice system seriously.

Also thank you to Dr Adam Tominson from the AIC and of course thank you to
Professor Chris Cunneen for his excellent analysis of the subject. It is also
good to see Senator Ludlam here.

Finally, I want to acknowledge the Indigenous young people who are
participating here today. Older people like me probably think we know more than
we actually do about these issues. I really hope you will all be able to share
your insights, set us straight where you need to and help us get to the bottom
of all of this over the next two days.

I am very happy that the Australian Human Rights Commission has been able to
support this conference. I think that the over representation of our Indigenous
young people in the juvenile justice system is not just a policy issue, not
just a political issue, but a major human rights issue.

And I think it’s about time we looked at it in the context of human
rights and the current government commitment to close the gap between Indigenous
and non Indigenous Australians. There is something seriously wrong with our
system of justice when Indigenous young people are 28 times more likely to be
detained than non Indigenous young
people.[1]

I’m not going to go into all the facts and figures in too much detail.
Chris has already given us a very useful snap shot of the situation. I also know
that I am in a room where people work with the realities of these statistics
everyday. You see the human consequences of these statistics and the impact that
each period of detention has on the young person, their families and
communities.

What I do want to say is, quite simply, what we are doing is just not
working. If it was working, we would be seeing a decrease, rather than the 27%
increase in the Indigenous juvenile detention rate between 2001 to
2007.[2]

I say this with the greatest respect for those of you who are actually
working at the coal face. But I reckon that most of you would also share my
frustration with a system that seems more intent on locking kids up rather than
preventing crime in the first place.

When something isn’t working we need to be bold and creative in our
thinking.

So I want to use this opportunity to talk about a new idea for
dealing with Indigenous over representation called justice reinvestment. As the
title of this paper suggests, justice reinvestment is a way of investing in our
Indigenous young people and communities to prevent crime.

Justice reinvestment is an idea that originally came from the United States.
It is a criminal justice policy approach that diverts a portion of the funds
spent on imprisonment to the 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 that address the underlying causes of
crime in these communities.

Justice reinvestment still retains detention as a measure of last resort for
dangerous and serious offenders but actively shifts the culture away from
imprisonment. Instead of imprisoning people it starts providing community wide
services that will actually prevent offending. It is not just about tinkering
around the edges of the justice system but actually trying to prevent people
from getting there in the first place.

Sounds simple doesn’t it? And that is part of the strength of the
approach. Most of the best ideas are simple but as I will show, it uses complex
research and analysis, in concert with community engagement to achieve robust
results.

Also, justice reinvestment addresses what I think is the fundamental gap in
all our attempts to reduce Indigenous over-representation. That is, we have all
heard about prevention and diversion and indeed we have seen some truly
exceptional programs that really help young people. But it is the same old
story- these programs get such a small slice of the funding compared to hugely
expensive detention centres. Justice reinvestment turns this on its head by
reducing imprisonment and sending the money where it needs to go.

Let me tell you a little about how justice reinvestment came about before I
go into how I think it can help with Indigenous young people. Justice
reinvestment is not the product of the usual suspects of criminological research
or policy. It came about from a think tank, the Open Society Institute, led by
George Soros.

George Soros is a wildly successful financial speculator and stock investor
- the 29th richest person in the world. But he has an interesting
take on the world. He escaped the Nazis as a young man and has first hand
insights into human rights violations. He now donates a huge of chunk of his
fortune to developing open, fair democracies and tackling issues like mass
incarceration.

Given this background, it is not surprising that justice reinvestment 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 and recidivism rates are high. This is leading to overcrowded
prisons and detention centres where the levels of individual programming and
support decrease even further.

In Australia we spent $2.6 billion on adult
imprisonment.[3] Indigenous prisoners
make up about a quarter of the prison population so 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 at the same rate as
non-Indigenous Australians, we could save around $610 million a year.

National expenditure on juvenile justice is not reported but let’s take
the example of NSW. NSW spent just over $103 million on juvenile detention in
2007-2008 according to their Annual
Report.[4] Approximately half of the
young people detained in NSW are Indigenous so we can assume in NSW alone nearly
$52 million was spent locking up Indigenous kids.

All this money sees little return, especially when you consider that a stint
in juvenile detention rarely leads to rehabilitation with a large proportion of
young people returning to custody. Even more alarming is the progression of
young people into the adult criminal justice system. 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 young people went on to appear
before the adult criminal court, compared to 52% of the non Indigenous young
people.[5]

I bet we can all think of better ways of spending all that money.

But thinking about better ways of spending imprisonment dollars is exactly
what they have done with justice reinvestment in the United States.

Obviously, they have a different situation in the United States. They
imprison a lot more people than we do. In fact they imprison more people than
anywhere else in the world - 2.3 million people every year.

But let’s not get too proud of ourselves. The rate of imprisonment for
Indigenous Australians is almost two and half times greater than the rate of
imprisonment in the United States. If we look at states like WA it is almost 4
times greater than the US rate.

So, the United States was in crisis. Imprisonment costs were blowing budgets
for very little return. Politicians were faced with the choice between spending
on hospitals and schools, or prisons. In this climate, some were willing to look
at alternatives to the tough on crime rhetoric in favour of solutions that
actively reduced imprisonment spending.

And what is interesting is that justice reinvestment has been adopted in some
of the places you would least expect - for instance, Texas, home of George W.
It has gained a lot of traction with politicians and policy makers on both sides
of the ideological divide. It offers the promise of prevention, diversion and
community justice for those on the left and balanced budgets and fiscal
responsibility for those on the right. At the end of the day I think it comes
down to the fact that money talks, especially to politicians!

So how does justice reinvestment actually work?

Firstly, justice reinvestment is based on the evidence that a large number of
offenders come from a relatively small number of disadvantaged communities.
Demographic mapping in the US has identified ‘million dollar’ blocks
where literally millions of dollars are being spent imprisoning people from
certain neighbourhoods. For instance, there is one neighbourhood, The Hill in
Connecticut where $20 million was spent in one year imprisoning just 387 people.
The Hill is disproportionately made up of low income, African Americans.

I think it is fairly safe to assume that we have our own version of million
dollar blocks. Thorough demographic mapping hasn’t been done in Australia
yet, but pioneers like Professor Tony Vinson have already identified the most
disadvantaged post codes in
Australia[6] - many of these have
higher than average Indigenous populations.

In researching for my 2009 Social Justice Report chapter on justice
reinvestment, I have asked governments to provide data about where Indigenous
adult and juvenile detainees come from.

I won’t go into great detail today suffice to say that the data for
juvenile detainees is a bit harder to analyse because we are dealing with
smaller numbers. However, I don’t think the anecdotally known locations
would come as any surprise to you. For instance, in NSW the top 5 locations
with the most Indigenous juvenile detainees are around Mt Druitt, Dubbo,
Kempsey, Bourke and Wagga Wagga. In other states we are also seeing similar hot
spots like Port Augusta, Ceduna and Murray Bridge in South Australia; Broome,
Carnarvon and Port Headland in WA; and Darwin, Alice Springs and Wadeye in the
NT.

So once you know where prisoners and juvenile detainees come from, what do
you do? Justice reinvestment says that the concentration of offenders logically
suggests that there should be commensurate concentration of services and
programs to prevent offending in these communities.

This is an important departure from current policy which is individually
focused. Most corrections programs provide individual and some group work but
little support for the broader community. At the end of the day, you can put an
offender through the best resourced, most effective evidence based
rehabilitation program, but if they are returning to a community with few
opportunities, their chances of staying out of trouble are limited.

The other reason justice reinvestment focuses on communities is because of a
recognition of the consequences of incarceration on communities. For a long time
we have been told by our politicians that taking offenders off the streets will
make communities safer, better places. This might be true if we are talking
about removing a small number of serious offenders from a community. But if
large numbers are being removed from a single community this disrupts the social
networks and creates an environment that breeds further crime and
dysfunction.

This is exactly what we are seeing in so many of our Indigenous communities.
We are seeing whole generations of men being removed from the community, large
numbers of parents being separated from their kids and young people taken away
from their supports. All of this drains the community’s capacity to tackle
crime and build safe communities.

This was also recognised back in the Bring them home report which identified
juvenile justice as a form of contemporary separation that has negative effects
on individuals and communities.

So, once justice reinvestment identifies the high stakes communities, a
serious analysis of the criminal justice system leads to a range of options that
will decrease imprisonment and generate savings to divert to the high stakes
communities.

Let me explain by talking about the example of Texas. In Texas they had no
trouble working out which communities to target. Only five counties accounted
for more than half the people imprisoned.

But the next step was to work out what was going on in the criminal justice
system that was causing this. Basically they found that the community
supervision system was letting these people down, with probation revocations
leading to an 18% increase in prison terms. Similarly the number of low risk
prisoners released on parole was also very small. At the same time prisons have
been expanding, funding had been cut to community based substance abuse and
mental health services.

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.

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.

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 Wi-chita. 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.

On top of all of this, Kansas has already 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%. Texas also halted the growth
in imprisonment for the first time in years.

Justice reinvestment has also been used specifically for juveniles in the US.
In Oregon they came at the justice reinvestment approach from a slightly
different angle. In Oregon the state government pays for imprisonment based on
the decisions made by the county courts. This means there was no financial
incentives for local governments to do anything to prevent crime.

In 1997 legislation was passed which allowed counties to supervise juveniles
in the community who would otherwise have been sent to state prisons. In return,
the local counties were given the money that would have been spent on locking
the young people up in state institutions. These funds were then reallocated to
neighbourhood improvement projects and quality community based supervision.

It set up a new dynamic. If the county successfully diverted young people
into local programs it would have ample resources for preventative services. But
if the county sent kids to state institutions the county would assume the cost
of incarceration.

Strong community service programs were put in place, with kids working on
neighbourhood regeneration programs in their own communities as well as skill
enhancing activities like building furniture for disadvantaged families and even
building houses in partnership with Habitat for Humanity.

Within one year the program had reduced youth incarceration in state
facilities by 72%, the biggest ever decrease in juvenile detention according to
the National Centre for Juvenile Justice.

Justice reinvestment is being used in 10 states across the US. Congress has
recently held hearings on justice reinvestment and there are suggestions that
the Obama administration will move to introduce it nationally. Justice
reinvestment is also attracting a lot of attention in the United Kingdom, with
Parliamentary inquiries and influential backers like Cherie Booth, Tony
Blair’s wife, making recommendations about its use in the UK. It seems
like an idea that is gaining considerable currency overseas and perhaps its time
has come in Australia.

When I first heard all of the great results and growing support for justice
reinvestment I got excited thinking about how it might work for our Indigenous
communities. 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 have sounded 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.

There are some strong synergies between justice reinvestment and best
practice approaches to Indigenous over representation. Firstly, justice
reinvestment acknowledges what Indigenous communities have known for a long time
- taking people out of communities through imprisonment weakens the entire
community. We need to stem this tide if we are to get communities back on their
feet. You can’t have a constant drain of people and not expect those left
behind to feel the strain in terms of cultural, family and other
responsibilities.

And apart from this, how often do we hear of young people going off to
detention to be schooled in the ways of further crime and getting really
entrenched with peers who will lead them astray.

Making the community a central building block in juvenile justice policy
brings community crime prevention to the fore. And this isn’t just about
putting on a basketball competition at the local PCYC. It is also providing the
basic services that are so often lacking for Indigenous communities, things like
access to quality education, housing and health care.

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 on the Rights of Indigenous Peoples.

Indigenous community engagement and partnership are the cornerstones of human
rights based policy. But in my opinion, they are also the cornerstones of
effective policy. Indigenous communities have the answers to their own problems
and it is about time we started listening to them in the juvenile and criminal
justice sphere.

The mechanism for reinvestment means that all the fine principles of
community engagement, participation and crime prevention can actually be backed
up with real dollars, adding up to real change.

Secondly, justice reinvestment will work for Indigenous communities because
it is such a sound analysis tool. The demographic mapping is very rigorous and
also a very powerful way to think about where there is the greatest need.

The capacity to analyse the legal and systemic blocks in the system is very
useful. In the US, the Justice Center, the organisation that develops the data
and generates justice reinvestment options for governments, have found that
during the analysis stage, they gathered unique and detailed data about the
local criminal justice system. This has enabled politicians to actually make
decisions based on all the facts for the first time ever. We talk about evidence
based policy all the time but I wonder how often we actually have all the
evidence.

Justice reinvestment would make it very obvious when we were implementing
laws or policies that are leading to excessive imprisonment and then suggest
legislative reform to remedy this. For instance, in Texas, the legislation
around parole revocation for technical matters was changed, resulting in a drop
in the prison population.

Here is a topical example of a policy that is leading to increased detention
in NSW. By anyone’s definition, the juvenile remand population in NSW has
exploded in the past couple of years. Between 2007 and 2008 the number of
juveniles held on remand in NSW rose by 32%, from an average of 181 to 239
people on remand each day.[7] This has
led to a 29% increase in remand costs, from $36.7 million per year up to $47.2
million.[8] 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.[9]

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.[10]

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 the
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.[11]

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 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 by not adequately recognising the different lifestyles that Indigenous
young people lead.

Indigenous young people are much more vulnerable to increasing policing.
They are more visible because of their use of public space and often come from
communities where over-policing has a longstanding history.

Similarly, if you live in a hot, crowded house in somewhere like Bourke or
Brewarrina, there’s a good chance that no matter what the piece of bail
paper says, on 40 degree day you’ll be down at the river, not at home
during the curfew hours.

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.[12] The other
implication of the Section 22a is that young people are spending longer periods
of time on remand.

The flow on effect of the increased use of remand is the overcrowding of
juvenile detention centres. 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, media reports indicate that 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. Sometimes young people have been locked down for up to
20 hours a day.[13] Similarly,
access to education and programs is also severely limited due to overcrowding.

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. 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.

So justice reinvestment would suggest that any government serious about
saving money so they can put it somewhere more productive than a juvenile
justice detention centre, would reform this legislation so that it does not
apply to juveniles at the very least. At an implementation level, policing
practices should be altered so that time is spent catching criminals rather than
chasing after kids on bail. When I look at the NSW budget, crumbling
infrastructure and growing demand for services, it seems to me that a state
like NSW is in a perfect position to make the most of the savings that justice
reinvestment could deliver.

In fact, the current economic situation might be just the pragmatic
opportunity we need to shift governments away from the 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.

Justice reinvestment is both a pragmatic as well as principled way to tackle
Indigenous over representation. It has a very sound research methodology and
evidence base, but also values community engagement.

And I take considerable encouragement from the fact that it has succeeded in
some of the most unlikely places in the US. If the people of Texas, notorious
for their lockem up and throw away the key attitudes can implement justice
reinvestment I am hopeful that a society like Australia can also take up the
challenge.

As I mentioned, I will be discussing justice reinvestment and making
recommendations on it in this year’s Social Justice Report. The Social
Justice Report goes to the Australian Parliament each year and reports on
Indigenous Australians’ enjoyment of human rights. I’m hoping that
governments will be willing to step outside their current mindsets and engage
with the idea for the good of our Indigenous young people and communities.

But I also think it is important to share ideas with people like all of you
here today. We need to send the message, just like we did with Indigenous
health inequality in the Close the Gap campaign, that the current rates of
Indigenous over representation are just not acceptable. Not only that, but there
are solutions to the problem if we are creative and innovative.

Finally, I want to leave you with a quote from Albert Einstein. He defined
insanity as ‘continuing to do the same things and expecting a different
result’. This is exactly the sort of madness we see in the juvenile
justice system. Let’s try something different to tackle Indigenous over
representation.

Thank you.



[1] Australian Institute of Health
and Welfare, Juvenile Justice in Australia 2006-2007. At http://www.aihw.gov.au/publications/juv/jjia06-07/jjia06-07.pdf (viewed 27 May 2009).

[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 24 July 2009).

[3] 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 22 July 2009).

[4] NSW
Department of Juvenile Justice, Annual Report 2007-2008. At http://www.djj.nsw.gov.au/publications.htm (viewed 23 July 2009).

[5] S Chen,
T Matruglio, D Weatherburn and J Hua, The transition from juvenile to adult
criminal careers
, NSW Bureau of Crime Statistics and Research,
Contemporary Issues in Crime and Justice no. 86 (2005). At http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/cjb86.pdf/$file/cjb86.pdf (viewed 24 July 2009).

[6] T
Vinson, Dropping off the edge: the distribution of disadvantage in
Australia
(2007).

[7] 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 and Research Crime and Justice Bulletin no.128 (2009). At http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB128.pdf/$file/CJB128.pdf (viewed 27 July 2009).

[8] 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 and Research Crime and Justice Bulletin no.128 (2009). At http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB128.pdf/$file/CJB128.pdf (viewed 27 July 2009).

[9] 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 and Research Crime and Justice Bulletin no.128 (2009). At http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB128.pdf/$file/CJB128.pdf (viewed 27 July 2009).

[10] NSW
Bail Act 1978

[11] 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 and Research Crime and Justice Bulletin no.128 (2009). At http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB128.pdf/$file/CJB128.pdf (viewed 27 July 2009).

[12] 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 and Research Crime and Justice Bulletin no.128 (2009). At http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB128.pdf/$file/CJB128.pdf (viewed 27 July 2009).

[13]A.
Horin, ‘Juveniles locked in cells for 20 hours a stretch’, Sydney Morning Herald, 23 April 2009. At http://www.smh.com.au/national/juveniles-locked-in-cells-for-20-hours-at-a-stretch-20090422-affd.html (viewed 19 August 2009)