Justice Reinvestment: a new solution to the problem of Indigenous over-representation in the criminal justice system

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

ANTaR NSW Seminar - Juvenile Justice Strategy: A Better Way, Sydney Mechanics School of Arts NSW

20 March 2010

I would like to begin by paying my respects to the Gadigal peoples of the Eora nation, the traditional owners of the land where we gather today. I pay my respects to your elders past and present, to the ancestors and to those who have come before us.

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. Like many Aboriginal groups we have a matriarchal lineage and I am one of the lucky ones who only have to go back to my mother’s mother, my grandmother to find out where our country is. My mother was raised in the Woorabinda mission and my father was born at Barabala, a little town about 30 kilometers from Woorabinda.

As is our practice, can I pass on from the Gangulu to the Gadigal people our greetings and acknowledgements for the fight you fight in keeping your culture alive and thriving over the last 220 years in the biggest city in Australia.

I also acknowledge the Hon Graham West MP, Minister for Juvenile Justice who is with us here today.

I also acknowledge those who work in organisations or with government in the Indigenous sector who are here today. I particularly acknowledge the work of ANTAR NSW staff and members. Your commitment to working on social justice and Indigenous rights, the support you have contributed over the years and the incredible number of volunteer hours you have given is tremendous.

And most importantly, I acknowledge all the Aboriginal and Torres Strait Islander peoples that are here today.
I am now six weeks into my term as Aboriginal and Torres Strait Islander Social Justice Commissioner and I thank ANTAR NSW for the opportunity to speak on this important topic early on in my term.

The focus of this seminar - Juvenile Justice Strategy: A Better Way - is timely. Faced with increased imprisonment and recidivism rates amongst Indigenous youth, and escalating costs for new prisons and juvenile detention centres - now is the perfect time for Governments to look for A Better Way. And today I am going to talk about Justice Reinvestment as a better way.

We all know the statistics. The Overcoming Indigenous Disadvantage 2009 report found that Indigenous juveniles are 28 times more likely to be placed in juvenile detention than their non-Indigenous counterparts.

Here in NSW Indigenous young people currently make up over half of the detention population despite being only 2.2% of the NSW population.

This is the problem. But how can we, as members of communities, as mothers and fathers, as governments, as police, as health services, as legal services, fix it?

In the Social Justice Report 2009 my predecessor, Tom Calma, proposed ‘justice reinvestment’ as a possible solution to the over representation of Indigenous people in the criminal justice system.

Justice reinvestment is a localised criminal justice policy approach that first emerged in the United States. 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.

I believe that Justice Reinvestment also provides opportunities for communities to take back some control. If it is to work properly it means looking at options for diversion from prison but more importantly, it means looking at the measures and strategies that will prevent offending behaviour in the first place. The community has to be involved and committed to not only taking some ownership of the problem but also some ownership of the solutions.

In my view, Justice Reinvestment if done properly also provides offenders a form of accountability to their community. When offenders are sent to prison, this provides a form of accountability to society generally, but prison in most cases means going a fair way away from your community. 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. For example, experience in the USA tells us that their three strikes policies didn’t make the community safer, it just filled up the prisons.

Another example is around the work I have done with Canadian First Nation People on addressing men’s violent behaviour. The Native Counselling Service of Alberta (NCSA), amongst other great work that they do, runs their own prison and within that prison they run a program called Finding Your Warrior. They promote a view that a warrior is a protector and provider, not a perpetrator or abuser.

This program was recently evaluated by the Canadian Government and found that up to 80% of participants did not reoffend. If the men maintain their innocence they cannot participate because a key element to the warrior course is that the men have to accept responsibility for their behaviour and to be accountable. I am sure there are lessons we can learn from the work NCSA are doing for application here in Australia.

NCSA make it clear that their contribution to the First Nations of Canada is making their communities safer by reducing violent behaviour.

A few years ago I asked the Police Commissioner in Western Australia whether in his opinion society was getting more dangerous. In his opinion, and he had a raft of statistics to support his view, he said no, society is not getting more dangerous but there is a public perception around this that needs to be addressed.

Therefore I think we need to change the narrative from one of punishment to one of community safety. Funding people to go to prison might make people feel safer, but a far better way would be to stop the offending in the first place, and Justice Reinvestment provides that opportunity. I reckon it makes common sense to prevent offending rather than just build more and bigger prisons.

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 has a very strong community focus. It recognises that incarcerating or otherwise detaining a large proportion of the population weakens the community, creating the conditions for further crime.

There is an old adage in corrections policy – if you build it, they will come. That is, it won’t be long before our prisons are too full because the government missed the opportunity to spend money at the front end of the system rather than further down the line when offending has already taken place.

Imagine if instead of imprisoning all these people, weakening the community further, some were diverted from prison and the money that would have been spent on locking them up is then put into crime prevention and community building programs.

There is a misconception that money would be pulled from other essential programs which service Indigenous youth.

This is not the case.

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.

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

The Social Justice Report 2009 recommended that all state and territory governments consider justice reinvestment in tandem with their plans to build new prisons. A percentage of funding that is targeted to prison beds should be diverted to trial communities where there are high rates of Indigenous offenders.

The evidence tells us that justice reinvestment is a success story in the USA.

In the US imprisonment rates are dropping in places where justice reinvestment is being implemented. For example, there was a 72% drop in juvenile incarceration in Oregon, after money was reinvested in well-resourced restorative justice and community service programs for juvenile offenders.

Texas reinvested $241 million in treatment programs and improved probation and parole services, instead of in prisons. There was a saving of $210.5 million in the 2008–2009 financial year and the Texan prison population stopped growing for the first time in decades.

A good, well developed justice reinvestment program must be community generated, community controlled, and culturally secure.

For justice reinvestment to be successful it requires bipartisan support. It requires an agreement from both sides on the urgency of reducing imprisonment, based on both their fiscal and social responsibility.

For justice reinvestment to be successful also requires partnerships 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.

Thirdly, Justice Reinvestment requires community involvement. As I said before Justice Reinvestment is about returning more control of justice to the local area. It will be imperative that Indigenous communities feel they have real engagement and that it is not just another policy imposition from government.

I am of the view that this is an area in which governments of all level will have to improve their game. Currently there seems to be a mindset where the only engagement is government telling Indigenous people its views with precious little opportunity for communities to provide their views to government, and I am seeing plenty of examples of matters being lost in translation.

Another area which may be improved by the community taking some control is in the area of coordination of government services. There seems to be a plethora of service providers descending on communities with little or no regard to how their services may impact more broadly within a community or on the services delivered by other agencies.

Noel Pearson in a recent presentation observed that in one community there were almost as many service providers as there were community members. When I was working in Western Australia I saw service providers just come into the community and put in place programs without talking to the community.

Finally, it is crucial to find the right support services and programs in local areas to invest in. It is important to include initiatives that engage Indigenous juveniles and young people in education and employment, provide strong family support and strengthen their engagement with their culture. Such programs must also be adequately funded, with secure, long term funding.

The Social Justice Report 2009 recommends that the Australian Government set criminal justice targets that are integrated into the Closing the Gap agenda.

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.

The Commission also made submissions to the Senate Legal and Constitutional Affairs Committee’s Inquiry into Access to Justice in October 2009 and to the NSW Department of Juvenile Justice’s Review of Broader Strategic Juvenile Justice Policy in September 2009.

These submissions recommended that governments work in cooperation to develop a strategy for implementing ‘justice reinvestment’, including the selection of initial pilot program locations.

Our very preliminary research in the Social Justice Report highlights places in NSW like Mt Druitt, Dubbo, Kempsey, and Bourke might be good places for juvenile or young adult trial sites.

The Senate Report referred to the Commission’s submission and recommended that federal, state and territory governments recognise the potential benefits of justice reinvestment, and develop and fund a justice reinvestment pilot program for the criminal justice system.

Over-representation of Indigenous youth in the juvenile justice system is a social justice issue which requires a substantial response. Justice reinvestment is such a response and it is something that I will continue to support in my term as Aboriginal and Torres Strait Islander Social Justice Commissioner.

Finally, I would like to relate another story from Canada. There is a small First Nation community called Hollow Water that started a program where perpetrators of child abuse do not necessarily get sent to prison. Hollow Water has strong governance and the community, particularly the women, approached the Provincial Government with a proposal that would eventually see the perpetrators sent back to the community, if all of the community agreed. This option was only available to perpetrators who pleaded guilty.

The net result was that an independent evaluation noted that child abuse was almost zero, that in effect a community based idea had wiped out child abuse. Now, this presented some challenges as I have always wanted to send all perpetrators to prison or even do things that were worse, so this notion was so far out of the left field that one of the evaluators and I had ongoing robust discussions that lasted nearly four months.

In frustration, Patti finally said to me a couple of things.

First, she pointed out that robust evidence showed that child abuse in the community was practically wiped out, and I had to make a decision whether I was going to believe the evidence or not.

Secondly, she said that I had to come to terms with what I really wanted and she gave me the following options.

Do you want victims to be healed and to be safe?
Do you want communities to be healed and to be safe?
Do you want perpetrators to be accountable and rehabilitated?
Or do you just want to punish people?

If you just want to punish people you will continue to just send people to prison, but you probably won’t achieve much of the other things.

I will leave you with these thoughts ladies and gentlemen

Thank you.