Justice Reinvestment: divert and distract

 

Remember thee?

Ay, thou poor ghost, while memory holds a seat 

In this distracted globe. Remember thee? 

Hamlet Act one, Scene five.

Justice reinvestment is one of those ideas that is thrown around incessantly in the Indigenous policy domain, but never seems to go anywhere.

Justice reinvestment aims to reduce First Nations incarceration and contact at all levels of the justice system. It is this objective which leads to one of its key components, the reinvestment or diversion of funds drawn from correctional budgets towards community-led solutions to over-representation (link here).

This idea gained traction amongst Indigenous interests in Australia after a focus on addressing justice administration issues emerged in Bourke in western NSW around 2012, and went on to have considerable success over the succeeding 12 years  (link here and link here). The Just Reinvest website includes a very useful submission from Maranguka to a NSW Parliamentary Inquiry into Community Safety in Regional and Rural Communities (link here) which identifies that addressing the challenges of justice reinvestment at a community level is not straightforward as it depends on the successful delivery of a series of inter-related services, and the maintenance of community support over the medium and longer term.

While I do not for one moment dismiss the absolute importance of community led initiatives in this space, it is also clear that the success of the Bourke community in limiting interactions with the criminal justice system has not been widely replicated across Australia. Even if we allow that local community led initiatives are necessary preconditions for successful policy reform, they are not sufficient preconditions. They do not have the innate capacity to expand horizontally across the policy domain, and they do not address the deeper systemic issues that drive hyper-incarceration of Indigenous citizens.

In response to the success of the Bourke community, First Nations interests appropriated the ‘Justice Reinvestment’ terminology and incorporated it into their advocacy. Notwithstanding this support, First Nations interests have largely failed to replicate the Bourke community initiatives more widely. One reason for this is that a close look at the Bourke issues reveals that there was an amazing amount of behind the scenes work to engage with numerous stakeholders and potential allies (including many non-Indigenous organisations). Bourke’s success was extraordinary, but beyond the capacity of other communities to replicate on their own.  

Yet the logic of Justice Reinvestment continues to resonate and is difficult to refute. As Fiona Allison notes in her paper prepared for Jumbunna and made available on the Attorney General’s Department website:

Justice reinvestment aims to reduce First Nations incarceration and contact at all levels of the justice system. It is this objective which leads to one of its key components, the reinvestment or diversion of funds drawn from correctional budgets towards community-led solutions to over-representation.

 Justice reinvestment’s focus on incarceration is a pivot around which multiple other outcomes might be enhanced, including in areas like health, education or other ‘social determinants of justice’. More fundamentally, however, justice reinvestment aims to achieve a cultural and political shift in First Nations/government relations.

[Allison, F (2023) Design of the National Justice Reinvestment Program. Jumbunna Institute for Indigenous Education and Research, UTS. (link here).]

Governments responded to the aspirational advocacy in favour of ‘Justice Reinvestment’ with what have become the standard template for managing difficult issues. The Attorney General’s Department established a program focussed on justice reinvestment, which is outlined in some detail on its website (link here). The first paragraph of the web page states:

More than 30 years after the Royal Commission into Aboriginal Deaths in Custody, Aboriginal and Torres Strait Islander peoples remain over-represented at every point in the criminal justice system. In the 2022–2023 Budget, the Australian Government announced a commitment to pursue meaningful change by investing in place-based initiatives, led and implemented by First Nations communities and organisations, to help turn the tide on incarceration and deaths in custody (emphasis added).

The subsequent paragraphs list the detail of an allocation totalling $80m over four years, along with a commitment to ongoing funding of $20m per annum. Also included are sections dealing with place-based projects, a list of projects funded under the program, and a section on the purpose of funding states:

The National Justice Reinvestment Program is a long-term, community-led approach to shifting people’s interactions away from the justice system by investing in preventative and rehabilitation measures, informed by local stories, evidence and data.

A section on the establishment of a co-designed national justice reinvestment unit explains its purpose as

 ‘to coordinate and support justice reinvestment initiatives at a national level, as recommended by the Australian Law Reform Commission (ALRC) Pathways to Justice report.’ 

It is not clear whether this means the coordination will be at a national level, or the justice reinvestment initiatives will be national.

The 2017 Pathways to Justice Report by the ALRC made the following recommendation in relation to Justice Reinvestment:

Recommendation 4–1 Commonwealth, state and territory governments should provide support for the establishment of an independent justice reinvestment body. The purpose of the body should be to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration, and to provide expertise on the implementation of justice reinvestment. Its functions should include: providing technical expertise in relation to justice reinvestment; assisting in developing justice reinvestment plans in local sites; and maintaining a database of evidence-based justice reinvestment strategies. The justice reinvestment body should be overseen by a board with Aboriginal and Torres Strait Islander leadership. (emphasis added)

A close reading of this recommendation suggests that its intention was the establishment of something akin to a national peak body for justice reinvestment, not a unit established within the A-G’s portfolio. The website claims there has been extensive consultation on the proposal and has spent the best part of $12m in working towards its establishment. Consultations were outsourced t the Jumbunna Institute, and a report on the national consultations in relation to the program was published by Jumbunna in June 2023. The website continues:

The National Justice Reinvestment Unit is being designed by a working group of the Justice Policy Partnership, and informed by the recommendation of the ALRC, written submissions from the public consultation process, and the views of First Nations communities through the national design consultations.

The Justice Policy Partnership is a mechanism established as part of the policy architecture for Closing the Gap. It has a web page on the Attorney General’s Department site (link here), which outlines the purpose of the Justice Policy Partnership as follows:

Focused on providing a national joined up approach to improving Outcomes 10 (Adults are not overrepresented in the criminal justice system) and 11 (Young people are not overrepresented in the criminal justice system) of the National Agreement, the Justice Policy Partnership is co-chaired by the Attorney-General’s Department and the National Aboriginal and Torres Strait Island Legal Services.

Its membership comprises 10 First Nationals representatives nominated by the Coalition of Peaks and nine senior officials from the Commonwealth and all states and territories (see the terms of reference for a list of all members). The Partnership meets four times a year. The web page for the JPP lists a summary of discussions from all meetings over the past few years, though I haven’t had a chance to review the content of those discussions.

It will be interesting to see what emerges from the working group in relation to the Justice Reinvestment Unit. I will be amazed if it aligns with the vision implicit in the ALRC recommendation.

Returning to the Justice Reinvestment web page, it also includes the following paragraph:

Grant opportunities to apply for funding under the National Justice Reinvestment Program were closed in November 2024 as the program was close to being fully subscribed (emphasis added).

I am aware that this has caused significant dismay amongst groups who were in the process of preparing funding submissions.

What then can we make of this rather convoluted policy architecture?

The first point to make is that it is broadly consistent with First Nations’ consistent advocacy seeking greater involvement and consultation in policy formulation. It is consistent with the process requirements embedded within the National Agreement on Closing the Gap. My personal view (which of course counts for nothing) is that it is a highly over-engineered policy architecture which prioritises process over outcomes.

Second, as an experienced former public servant, it strikes me that it might be described as management by committee, which essentially means everything becomes a negotiation, delays abound, and there are multiple veto points available for any stakeholder who seeks to avoid a specific outcome. This might be described as a co-designed policy framework, but I would describe it as a poorly designed policy framework, one that virtually guarantees gridlock and policy stasis. Of course, a cynic might conclude that this is exactly what governments have intended.

Third, and most importantly, it strikes me that this whole policy framework edifice is not fit for purpose because it is fundamentally lacking in ambition and has lost sight of the underlying levels of over-representation of First Nations citizens in the justice system. The costs of Australia’s prison systems are enormous, so the potential savings from reducing incarceration levels are similarly large.

The IPA Research note dated June 2024 titled The Cost of Australia’s Prisons (link here) is an essential read for all those interested in understanding the misallocation of expenses involved in hyper incarceration of citizens, particularly Indigenous citizens.

Its key findings include:

State and federal governments are now spending $6.4 billion each year on the construction and operation of prisons, with spending having almost doubled in just 10 years. • Incarceration costs Australian taxpayers $422 per prisoner per day, or $153,895 per prisoner per year. • The adult incarceration rate is now 205.7 per 100,000 of the adult population, an increase of 12 per cent over the last 10 years. • Of the 43,305 prisoners in Australia, 62 per cent have been incarcerated for a violent offence, 23 per cent for a non-violent victimless offence and 15 per cent for a non-violent property offence. • In 2023 governments spent $2.4 billion on imprisoning non-violent offenders posing minimal risk to community safety. (emphasis added).

According to the most recent June 2024 ABS data (link here), there were 44,051 (average daily number) prisoners in Australia. Of these, there were 15,424 Aboriginal and Torres Strait Islander prisoners. Indigenous prisoners thus comprise a third of the total prison population. Notionally, we might attribute $2.1bn of the annual costs of the carceral state to the imprisonment of Indigenous people. The Attorney General’s Department Justice Reinvestment program of $20m is thus less than one percent of the total costs allocated to incarceration of Indigenous citizens.

Whatever the merits of the place-based initiatives being pursued by the Commonwealth, they are not at a scale which will have an impact on in reversing the negative trends on incarceration of First Nations people. Moreover, recent research from the Australian Institute of Criminology, which sits in the Attorney General’s portfolio, points unequivocally to the role of much wider policy issues in driving arrest rates and imprisonment rates for Indigenous citizens (link here). As I noted in my previous blog post on that research, this report represents the most important policy relevant research paper published in relation to Indigenous Australia in recent memory (link here).

In the recently released Northern Australia Action Plan (link here) the Commonwealth authors state at page 61:

The Australian Government is committed to working in partnership with Aboriginal and Torres Strait Islander organisations and communities to improve justice outcomes….

…. While criminal justice, policing and corrections are primarily the responsibility of state and territory governments, the Australian Government acknowledges it has a leadership role to work in partnership with Aboriginal and Torres Strait Islander peoples, the Coalition of Peaks and states and territories to achieve justice targets (emphasis added).

Given the consistently regressive trends in Indigenous incarceration even against the artificially constructed closing the gap targets (as discussed in my previous post link here), it is difficult to discern substantive leadership either from the Attorney General, the Minister for Indigenous Australians and their respective agencies. They ignore their own policy relevant research. Instead, we have the tried-and-true approach of seeking to manage the issue by creating reams of process and allocating just enough funding to be able to claim that something is being done. And for good measure, seeking to divert responsibility to the states and territories who are directly responsible for criminal justice matters. The overarching strategy in relation to First Nations policy might be summed up in two words: ‘divert’ and ‘distract’.

This begs the question, what would an effective response to hyper-incarceration look like?

One approach which has some attractions, but which I consider to be inadequate, is to amend the criminal law to remove the use of incarceration for certain offenses. The Institute of Public Affairs research note referred to above suggests doing so for non-violent offenses. The recent NT Coroners report (link here) suggests doing so for domestic violence offenses (see recommendation 20). Such approaches will have difficulty in achieving broad political support, and raise the unanswered question, what then is the appropriate punishment for these offences? While I would be prepared to change my mind if presented with a persuasive argument, on its face these approaches appear to address the policy problem by addressing the incarceration metric, but not the underlying criminal behaviour, thus shifting the problem elsewhere.

Clearly, finding an effective response to hyper-incarceration is complicated, and thus the response will necessarily be complex. But it is possible to identify some essential core features.

An effective response must be substantive, not intangible. It must be systemic in its reach, addressing underlying drivers of incarceration, not just the immediate causes (that is it must lead to less criminal behaviour). It must involve policy change, not merely setting an aspirations target (without policy change) as is the case with the Closing the Gap framework. In turn, this suggests that there must be a program logic: if we aim to achieve A, we will do B, we will allocate Y funding or amend law Z. An effective response must be national in its operation, whether by obtaining the agreement of all states and territories, or through national policy action. Importantly, it must be sustained over time, evaluated for effectiveness, and amended if necessary. Ideally, it should have wide political support; if this is not possible, there must at least be a public explanation of the policy and its aims. In short, it must become a national project and a national priority. This will require political leadership and commitment.

Readers will note that I have not proposed specific policy actions. The reason is that there will be a need for a suite or portfolio of integrated policy responses at jurisdiction wide levels and ideally nationally. Key policy areas would include, at a minimum, alcohol controls, employment creation, better housing and infrastructure, better education services, continued access to effective health services, food security, improved policing, and effective support services. Solutions for remote regions (where social disadvantage is more deep-seated) will not be the same as those required in urban and regional contexts.

None of the elements laid out in the preceding paragraphs are impossible or unthinkable. Yet it is immediately clear that in relation to such a policy strategy, our existing political institutions are unlikely to find the motivation to go down this path. The incentives for those involved in managing our national political life do not align with addressing the issue of hyper-incarceration. In John Dryzek’s formulation, the problem of hyper-incarceration is not seen as a ‘core state imperative.’

Importantly, while the costs of Indigenous hyper-incarceration are overwhelmingly borne by First Nations individuals, families and communities, there are wider societal costs that provide a potential platform for future advocacy. I am not referring to the financial costs of our prisons, substantial as they are, but to the less tangible costs that degrade the moral and ethical foundations of our society. How can informed citizens live in a society where the preconditions for social dysfunction have been allowed to develop, largely through neglect rather than deliberate intent, to the point where in some parts of the nation, domestic violence is endemic, employment opportunities are minimal, (government owned) housing is in extraordinary states of overcrowding and disrepair, and where young people are less literate and numerate than their parents. As the NT Coroner Elizabeth Armitage noted in her concluding comments to the recently released Inquest into the deaths of four Indigenous women (link here), ‘94% of the very youngest children in detention (10-13 year olds) have been exposed to family violence’.

My point in emphasising the societal costs is to point to the necessity for engaged citizens to build on this platform to advocate for the substantive policy reform that is both essential if non-Indigenous Australians are to live side by side with Indigenous Australians, but also if we Australians are to take our place in global society as nation built on social justice. We may be blind to the necessity of engaging with hyper-incarceration of First Nations citizens, but the rest of the world is not similarly blind.

If we were to find a way to successfully implement the systemic and broad-scale reforms required, then there would be a ‘justice reinvestment’ dividend. But talking up Justice Reinvestment while tinkering with the substantive policy challenge by allocating $20m per annum nationally should be seen for what it is: a hypocritically distraction with no discernible policy impact.

Finally, for those interested in delving deeper into these issues, below I provide links to three of my previous posts on Indigenous incarceration going back to 2017. Over those seven years, the underlying analysis has not changed much, which tells us something about the powerlessness of Indigenous Australians, and the challenges the nation faces in driving substantive reform.

ALRC Discussion Paper on Indigenous incarceration (link here)

Indigenous incarceration reform (link here)

The drivers of stratospheric rates of Indigenous incarceration (link here)

 

 

28 November 2024