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Jailing is failing Australia and now is the time for cross party support to move to evidence-based policies in the criminal justice system

Armidale Lecture by Robert Tickner AO, Chair of the Justice Reform Initiative. Hosted by the Rotary Club of Armidale. Armidale, Thursday 9th June 2022.


Good afternoon to you all and what an absolute pleasure and honour it is to be here in Armidale as a guest of the Armidale Rotary Club to deliver the first Armidale Lecture.

May I begin by thanking Mr Steve Widders for his warm welcome to country. I acknowledge the Aboriginal traditional owners of the land and recognise the strength, resilience and capacity of the Aboriginal community and pay my respects to the Elders past, present and emerging. One of those elders past is the late and much respected Armidale Councillor Pat Dixon who I was proud to know as a friend. Pat was the first Aboriginal woman elected to local Government in NSW and served as Deputy Mayor of Armidale.

The Justice Reform Initiative is a really good fit for Rotary, not just here in Armidale, but also nationally.

If you go to the main global Rotary web site it proudly outlines the four pillars of the Rotary Strategic Vision. The Strategic Vision first action priority states: “As People of Action we make decisions grounded in evidence,” which is a fundamental premise of the Justice Reform Initiative.

One of my heroes when it comes to mounting the case for a shift to evidence-based policy in criminal justice is the great British Conservative Party Leader Sir Winston Churchill. One hundred and eleven years ago he said, “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country”.

In 1911 Winston Churchill was appointed Home Secretary of Britain which gave him the job of shaping British prison policy and, at that time, he also said this, “the first real principle which should guide anyone trying to establish a good system of prisons should be to prevent as many people as possible getting in there at all”.  

Thus, in his own words, Winston Churchill was effectively recognising 111 years ago that jailing is failing.

The Justice Reform Initiative is seeking to shift the public conversation and public policy in Australia away from building more and more prisons as the primary response of the criminal justice system for many offenders and to shift to proven alternative evidence-based approaches which break the cycle of incarceration. 

We are honoured to have two esteemed former Governors-General of the Commonwealth of Australia as our joint National Patrons-in-Chief and they are Sir William Deane and Dame Quentin Bryce.

One hundred and twenty highly respected Patrons from every State and Territory are also listed on the website.

While our patrons add gravitas and expertise to our work we are very much a community-based organisation, founded by volunteers, and we are building our support base around the state and indeed around the country from people of all walks of life.

Clearly, we are not an Aboriginal organisation, however we have some of the most highly respected Aboriginal people in the country among our ranks of patrons and right up front we acknowledge the leadership role of Aboriginal and Torres Strait Islander organisations and people in relation to the issues associated with the grossly disproportionate rate of Aboriginal incarceration.

We are allies to their cause.

However, we believe that Aboriginal people and organisations have been doing all the heavy lifting for far too long in relation to the failings of the criminal justice system.

Let me make some other things clear at the outset. 

Firstly, we are not an organisation which advocates the abolition of prisons and common sense tells us that, at this stage of human history, there are people who need to be incarcerated to protect the community, or for some other justifiable public policy reason.

However, a high percentage of the prison population pose no threat to the wider community and our current record levels of incarceration are coming at enormous financial and social cost. 

Secondly, I wanted to highlight that the Justice Reform Initiative does not seek to apportion blame for the current state of affairs to either side of politics, nor lay blame at the feet of any of the current governments around Australia. The fact is that the problems in the system have been compounding and developing over many decades. But what we do say is that it cannot continue and now is the time to start turning things around.

Thirdly, I want to make clear at the outset that rather than being soft on crime, the opposite is the case, and we advocate polices which hold people accountable for their actions and conduct, but which are smart on crime because they seek to significantly reduce the level of future offending through evidence-based policy and thus make our communities safer.

Fourthly, we are also very much in favour of a better outcome for victims of crime and their families. Too often, the criminal justice system leaves victims of crime and their families marginalised and unsatisfied by the outcome of the court processes. The Justice Reform Initiative works with people like Ken Marslew one of our NSW Patrons who has dedicated his life to working to reform society’s attitude to violence, engaging with youth at risk and in promoting the adoption of restorative justice principles in the criminal justice system.

Fifthly and finally I want to reinforce the fact that we are very much a cross party organisation in that we have people from across the political spectrum supporting our objectives and as leading patrons, including former Federal and State Ministers and Premiers. We are also strictly non-party political in our work and believe that the community wants to see our parliamentarians working to find common ground through supporting evidence-based reforms in the criminal justice system.

So, to get a clear picture of who is in prison, what do we see if we look through the prison gates?

  • There has been a 38% increase in the numbers of people in those prisons in the last decade, despite the fact that crime rates have been dropping in that time. The evidence shows that there is no correlation between incarceration rates and crime.
  • Even though they constitute 3% of the population, 26% of the people in prison are Aboriginal.
  • 70% of people in NSW prisons have been there before.
  • The former NSW Commissioner for Corrective Services confirmed that 70% of the people in NSW prisons are functionally illiterate.
  • 60% have experienced mental illness
  • At least 30% were homeless before they were incarcerated and 50% will leave prison into homelessness.
  • As many as 20% of adults in prison have a cognitive impairment including intellectual disability, foetal alcohol spectrum disorder and acquired brain injury. 
  • 60% are incarcerated for crimes related directly to drug or alcohol use or misuse.
  • There are high rates of unemployment prior to incarceration, and 78% of people face unemployment on release.

If you were to look through the gates of our Women’s Prisons in this country, you would first notice that women’s imprisonment is one of the fastest growing areas of incarceration and the numbers of Aboriginal women in prison are increasingly the fastest growing of them all. Aboriginal women are now almost a third of the female prison numbers despite being only 3% in the community. 

You would also see a lot of mothers in there and it is of particular concern that 60% of women in prison have children who are under the age of 18. You can see that imprisonment is not only a punishment to the women but to their children and families as well. 

70% of women in prison have also survived some form of gendered violence. 

A very large percentage of people you will see through the prison gates of both male and female prisons are on short term sentences of 6 months or less or on remand. A third of the prison population is on remand which means that they have not even had their case heard by the court or not yet been sentenced. During the time that all of these people are in prison, they are not eligible to participate in the majority of prison programs focused on rehabilitation or addressing the underlying issues which brought these people into contact with the criminal justice system in the first place.

It follows on from the fact that 70% of the people in prisons have been there before, that what we have here is a never-ending revolving door through which a huge coterie of marginalised and disadvantaged people are being recycled over and over again, through the prison system and back on the streets, still homeless, in poverty, unemployed and with even more diminished prospects of employment due to their incarceration. A very high percentage as I have explained have continuing unaddressed substance abuse or mental health issues and that is how it is!

By way of demonstration of the dimensions of the problem, 20,000 people leave prison every year in NSW and, based on all available statistics, within two years most of them will be back in prison and an even higher percentage in succeeding years, still with their unaddressed underlying issues.

And on it goes, year in and year out of this revolving door of failing social policy. 

The system is failing and indeed to be very blunt about this — jailing is failing to turn lives around.

And yet, the financial cost is enormous, and most people do not realise the cost of keeping someone in adult prison is over $80,000 dollars per year in NSW and in some states much higher. This is a cost of $218 per day for each person in prison. No wonder the national running costs of our prison system is over $5 billion per year according to the Australian Productivity Commission and that is only the yearly operational costs – you can add many more billions to that for the ongoing capital costs of new prisons.

The incarceration rate is simply through the roof, while the system is bleeding us dry.

If schools failed the community in the same way and, we had for example, a 50% failure rate for school students we would be moving quickly to overhaul the education system, and that is what we need to do here in criminal justice as the system is surely failing all of us.

There is not a creditable criminologist or other informed voice on criminal justice issues in the country who believes that the overall existing system resembles evidence-based policy in any meaningful way.

So far, I have been painting you a picture of the adult prison population which is reflected Australia wide with some relatively minor local state and territory variants.

Now I want to tell you what the picture looks like in the youth justice system. 

I have often said, and I repeat again today that I believe that we have, an Australia wide Dickensian response to young people who come into contact with the criminal justice system and that the entire system is in crisis.

To give you one stark example of what I mean by Dickensian, one of our Patrons Professor Fiona Stanley AC, former Australian of the Year and renowned paediatrician and public health leader in this country, often talks about the Banksia Hill Detention Centre study in Western Australia. This groundbreaking research was published in the British Medical Journal in 2018. The study showed that in this major youth detention centre 89% of the kids had experienced one form of severe neurodevelopmental impairment while 36% were found to have Foetal Alcohol Spectrum Disorder – most of which had gone previously undiagnosed despite multiple contacts with governments, the justice system, and other agencies. 

These kids with such lifelong disabilities and other life challenges, should not be locked away where they are not getting their critical health and development needs met. What they need are therapeutic and medical responses to those critical development needs and wraparound support at a most crucial time in their young lives.

We would not want our own children, or kids we know and love, to be so mistreated.

Why would we want any lower standard for these children?!

In one form or another, this is what we are seeing across Australia in that, we have this coterie of kids, many of them coming from homes where there has been a family breakdown, many of them coming out of foster homes and the child protection system, while others have been homeless before going into juvenile detention. All of them are children at risk, with lives on the cusp and most in need of a response by our society which gives guidance, opportunity, safe spaces to live, educational opportunities which lead to a job and a pathway out of poverty.

Most of all they need a sense of self-worth, a sense of a place in the world where they belong, where they can be respected and can build a future life outside the justice system.

Sadly, the juvenile detention system has none of this, and in its current form the justice system completely fails these kids. One thing which is beyond doubt is that locking children in juvenile detention does deliver something for these children you can almost bank on, and that is, the super highway it creates to adult prisons and a life of poverty. 

The repeat offender rate for those who have been in youth detention is near 70% and these youth detention centres are clearly not breaking the cycle and are failing to turn lives around. Based on all available evidence they are actually making young lives far worse as we know from the constant running scandals in youth detention centres which continue to be regularly exposed in the media.

Don’t forget that we are talking about children as young as ten being impacted by these policy failings and that is one of the reasons the Justice Reform Initiative supports the age of criminal responsibility being raised to age 14 in line with international standards. This does not mean that children will not be held accountable for their actions or that the rights of victims of crime will be neglected. But it does mean that the response of the criminal justice system should not be to put these very young children behind bars. Evidence-based policy and basic humanity means that we need to turn to policy responses which address the underlying issues confronting these young children and which brought them to police attention in the first place.

The costs of keeping kids in detention is dramatically higher than keeping adults in prison and the direct cost per day per child in youth detention in NSW is $1,597 and annually that amounts to $583,000. If you think this is high, you will be even more shocked to learn that the costs per annum per child in the Northern Territory is $750,000. Common sense tells us that this money is being wasted on a system which everyone knows is failing. 

In this world encouraging news is still hard to come by but I want to place on record our admiration for the important work being led by Judge Ellen Skinner, President of the Children’s Court of NSW who is transforming the work of that court particularly by working with government agencies and others to encourage the coordination of support for children at risk.

Remember at the commencement of my remarks today I mentioned that iconic quote from Sir Winston Churchill in which he stated that the first real principle which should guide a country, “trying to establish a good system of prisons should be to prevent as many people as possible getting in there at all”

So how then do we rate by international standards with the size of our prison population?

The Productivity Commission recently reported that only two countries in the world had a higher growth in their incarceration rate than Australia in the years 2003 to 2018 and they were Columbia and Turkey. Even the United States of America did not beat us in our race to become one of the globally leading incarceration nations. In fact, the Northern Territory has a higher incarceration rate than the United States per head of population and it is undeniable that Aboriginal people are the most incarcerated race on Earth.

Australia also has a higher proportional incarceration rate than all the countries of Western Europe and Canada. Sadly, instead of following these successful models we followed the American model to join the USA in becoming an incarceration nation.

Australia is truly being left behind because, even in the United States, the world record incarcerator, where there are often such deep divisions between Republicans and Democrats, they have been increasingly working in recent years on the basis of a shared commitment to cut the prison population and to hold governments accountable for wasteful prison expenditure. In significant states it has been Republican administrations which have led reforms. While there have been some recent apparent setbacks I am hopeful, for the sake of the United States, that progress will continue to occur.

Law enforcement leaders in the USA are also playing a leading role in campaigning for change through the work of the group “Law Enforcement Leaders to Reduce Crime and Incarceration”. This group includes nearly 200 current and former police chiefs, federal and state police prosecutors, attorneys general and correctional officials from all 50 states and from some of the biggest cities in USA.

They very strongly advocate that “unnecessary incarceration is counter-productive, as it can create more crime, waste taxpayer dollars, and further divide law enforcement from the communities we seek to protect. We aim to build a smarter and stronger criminal justice system by replacing ineffective policies with new, modern practices that reduce both crime and incarceration”.

As I move towards the second part of my lecture, I want to open up the discussion about 5 concrete touch points of contact for people with the criminal justice system and the need for evidence-based policies in each of these 5 areas which will be necessary if we are going to turn away from being the incarceration nation.

Such policies will reduce crime, make our communities safer, dramatically reduce our 5 billion dollars annual prison expenditure, eliminate significant additional capital costs, and address the underlying issues or social determinants which result in interaction with the criminal justice system.

Firstly, I want to point to legislative reforms to the criminal justice and court systems. There is already a mountain of independent reports which have recommended such things as reforms to sentencing laws which open more alternatives to incarceration and reforms which cut back on mandatory sentencing. Mandatory Sentencing laws deny judges the ability to be able to take into account the particular circumstances of individual cases.

A further major area of needed legislative reform is that directed to bail legislation which has resulted in a massive increase in the remand population across Australia. Current law also results in many low-income people denied bail because they are homeless or do not have family to support them, despite the fact that they present no threat to the wider community.

Governments also have a critical role in setting up, and well funding the very successful models of specialist courts which already operate in some of Australia’s major cities but less so in many regional areas. These specialist courts such as Drug Courts and innovative approaches such Indigenous Courts involving community elders need to be adopted elsewhere and systematically introduced into regional and remote Australia.

For those wishing to gain an insight into the detail of major reports relating to Aboriginal over-incarceration you can find the relevant recommendations of the Royal Commission into Aboriginal Deaths in Custody and the Australian Law Reform Commission Report Pathways to Justice online. The latter report was released 4 years ago and has not been responded to by Government. The former report was agreed to by all Governments but then not meaningfully implemented in critical areas.

The second area of touch point and necessary evidence-based reforms is the area of policing policies, and I remain optimistic that change can happen. The reforms we are advocating as the Justice Reform Initiative are not some police bashing exercise and indeed is the opposite in this case. 

The recommendations of the Royal Commission into Aboriginal Deaths in Custody provide a blueprint for the direction of change we advocate for the benefit of all. Recommendation 87, for example, recommended in part that “Administrators of Police Services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons”. The recommendation goes on to give specific guidance on how they should do this.

The report of the Royal Commission into Aboriginal Deaths in Custody also has a plethora of other common sense recommendations directed towards achieving best practice in community policing particularly in Aboriginal communities through practical systemic reforms.

I am delighted to say that the approach recommended by the Royal Commission has been adopted on and off in many communities and country towns across Australia from time to time. Celebrated examples have included Bourke, Dubbo and I think right here in Armidale. We salute and applaud these wonderful examples which not only build strong relations with the local Aboriginal community, but which also reduce incarceration while holding people accountable. 

But dear people, and it is one huge “but”, unless we manage to achieve systemic change across the police services of Australia these isolated examples of improved and effective community-based policing currently only happen as a matter of luck when the wind blows a progressive senior officer across the paddocks into town. 

I am optimistic that the new NSW Police Commissioner Karen Webb may be the one to lead this kind of systemic change in NSW called for by the Royal Commission all those years ago.

The third area of touch point requiring evidence-based public policy arises in relation to diversionary sentencing alternatives to custody for both adults and children.

When we talk about evidence-based diversionary alternatives for young offenders it is important to give examples. When in Armidale I would be foolish not to make reference to the outstandingly successful programs run by the Backtrack organisation which, as you know, survives on philanthropic funding. The Backtrack program relies in part on engaging and bonding the young people in the program with dogs who become such a huge presence in the lives of the kids, teaching them so many things including responsibility, loyalty, skills and a growing belief in themselves and their capacities.

I think all of us here were blown away by the inspirational presentations of two Backtrack participants, Zac Craig and Daniel Davies at the start of today’s event. These young men shared their personal stories with us in such a powerful and persuasive way and gave us such an insight into the work of Backtrack. I know you will want to show your support for them again right now with some sustained applause of appreciation.

Most of the people in the program have had a difficult life for people so young but if you watch the Backtrack documentary, unless you have a heart of stone, you will be moved to tears as these young people get the solidarity, mentoring and training from the team at Backtrack. This support and their own capacities and hard work diverts them from the otherwise inevitable ongoing contact with the criminal justice system which young and homeless people often find themselves in and which is, as we know, a pathway to adult prisons.

The program also provides a bridge from a school system which has failed them to the adult world. The objective is to take the participants to a place of development where they have a capacity to get a job and take their rightful place in that world. I am sure that others could describe the program in much greater detail, but you get the picture.

Instead of juvenile justice institutions which cost over half a million for each child held there, these kids are living in a supportive environment where they are able to turn their lives around. These young people are inspirational to me.

However, if we are going to turn things around in this country in relation to juvenile justice we need a lot more community based organisations in both the city, but particularly in the country to be funded to provide these indispensable support programs for kids. Because right now, there are very few other options out there for these kids in most parts of Australia.

I hope you agree with me that it makes a lot more sense for our Governments to fund these alternative programs rather than spend over half a million dollars - and in some states much more for each child who goes into juvenile detention for a year.

Turning to the separate question of potential diversionary sentences for adults who would otherwise end up in the adult prison system, it makes more sense instead for magistrates and judges to divert many of them to available programs which will address the underlying issues which got them into trouble in the first place. Otherwise, the reality is that most receive no effective treatment or support for their underlying conditions while in prison and then get released and are often homeless still without treatment or support and then find themselves in the revolving door of incarceration and back in prison within a short period of time.

Sadly, as for youth programs I spoke of earlier, for most people, the services and support necessary is not available - or not to the extent necessary - and where they do exist, they are poorly funded and often not available in country areas. Our state Governments over many decades have, too often, been focussed on “funding sentences, not services” – services which are so critical to addressing mental health challenges, substance dependency, homelessness, health, education, employment, and other key determinants of life outcomes. 

I am sure you all know that there are so many wonderful people and organisations doing their best to provide crucial services but without adequate funding. They can do so much more if our Governments invest in them. There is also a need for other organisations to enter this space and particularly Aboriginal community-based organisations to provide services to their people in line with the Closing the Gap Strategy which is supported by both sides of politics.

The fourth of the five touch points of people with the criminal justice system is their experience of incarceration itself and here there is a need for evidence-based policies directed at transforming Australian prisons themselves. We want them to operate to worlds best practice and with an operating model which focuses much more on breaking the cycle of recidivism and opening up opportunities for people to turn their lives around.

Many European governments and their prisons have a central objective of helping people in prison get the life and social skills to equip them to be good neighbours in the community and have many more opportunities for people in prison to address barriers to employment, mental health, and substance abuse issues, to have a higher level of health care, and greater opportunity for personal development than currently exists in Australian prisons.

We also recognise that if we are successful in addressing over-incarceration that Corrective Services staff will not have to work in overcrowded prisons with poor conditions and will be able to implement world’s best practice in prison administration with a greater focus on preparing people for leaving prison and taking their place in the community when their sentence is served. The reduction in the numbers of people in prison will also enable staff to receive better and more diverse training and to be better remunerated. 

Time does not permit a full discussion of these alternative approaches today, but they are areas of work which will become another focus of the work of the Justice Reform Initiative in years to come and we hope to have visiting international speakers come to Australia to speak about the very best practices in prison management globally. 

Fifthly and finally, I turn to the question of what happens to people at the end of their time in prison. Currently at this touch point in the system, most people walk out the prison gate with little or no support, many are homeless and most are unemployed and lacking in family or community support. They also carry the stigma of having served a prison sentence making it harder to get a job, secure a house and generally get their lives back on track.

There is evidence that demonstrates conclusively that intensive support programs for people leaving prison like those developed and delivered by the NSW based Community Restorative Centre (CRC) and others around Australia can dramatically reduce the recidivism rate. In a landmark evaluation supported by the University of NSW it has been shown that the intensive support programs and related services directed towards addressing the underlying issues I have already spoken about, have achieved a 65% reduction in the rate of repeat offending. 

Currently programs of this kind are delivered by NGOs to only 5% of the 20,000 people who are leaving NSW prisons every year. It makes sense to invest significantly more in these programs which will dramatically cut the prison population by cutting the reoffending rate, and still deliver significant budget savings after factoring in the additional cost of service provision. The mathematics do not lie on this and, it is a perfect example of evidence-based policy which will also self-evidently result in crime reduction and create safer communities. 

I have always believed that any substantial lecture of this kind should have a least one big idea to move along the debate and help drive reforms. As a catalyst to achieving an Australia wide shift to evidence-based policy, I would like to float and promote the idea of State and National Governments working together to create innovative “Breaking the Cycle Funds” or similar. Such Funds would have a focus on allocating significantly boosted resources to community-based organisations to deliver evidence-based programmes including early intervention or which focus on addressing the underlying issues I have spoken about. The Funds could also support evidence-based diversion programs to dramatically cut the reoffending rates and also reintegrate people leaving prison into the community.

This is a not a radical proposal. It could attract cross party support in all our parliaments as it is in part based on revamping and significantly boosting a concept of the Community Safety Fund supported by the former Morrison Government.

Australia needs a big idea here and a big investment if we are going to turn things around. But such investment would be massively less costly than continuing to build more and more prisons and the evidence shows that its results will be transformative.

Such programs must be necessarily flexible and not excessively prescriptive to allow the funding of many new and innovative organisations just like Backtrack. Obviously, in line with the Closing the Gap Strategy significant and equitable funding must be provided to Aboriginal community-based organisations because they are the people who will provide leadership on these issues.

This investment in non-government organisations must be accompanied by investment in necessary government services and better co-ordination of existing services.

Dear friends, in my address this afternoon, I have sought to paint you an accurate and brutally honest picture of what I believe to be one of the most neglected areas of social policy in Australia.

I hope I have clearly shown you both how we lag significantly behind comparable countries in the world, and laid out a framework for a cross party, evidence-based practical pathway to reform.

The Justice Reform Initiative believes that people of goodwill can be persuaded about the need to shift to evidence based policy in the way I have described in this lecture.

There is no reason why we cannot reduce our prison population to the level of countries of Western Europe.

We have the objective of securing a 50% reduction in the prison population by 2030 and even then, we would still have twice the incarceration rate of some European countries. None the less, such a reduction would be a wonderful achievement for Australia.

We are looking to mobilise people in communities across Australia to give our politicians the courage to adopt the evidence-based policy necessary to achieve the changes we advocate. It is my hope that Armidale and the New England region will take a lead in developing a local group to support the work of the Justice Reform Initiative.                                  

I would be grateful if you would do at least one initial immediate thing in response to my lecture today and that is to add your name to the petition on the Justice Reform Initiative website and get behind the movement for change.

You can be part of something inspirational here which will help make Australia a better place.

Thank you for your time today.

Robert Tickner


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