National Judicial College and Australian National University Conference Speech by Robert Tickner AO, Chair of the Justice Reform Initiative. Canberra Saturday 25th February 2023 - Therapeutic Jurisprudence
Speech delivered by Robert Tickner AO, Chair of the Justice Reform Initiative
At the National Judicial College and Australian National University Conference
Canberra Saturday 25th February 2023 - Therapeutic Jurisprudence
Thank you so very much for the opportunity to introduce the work of the Justice Reform Initiative to you today.
At the outset, may I say I deeply respect the integrity of the judicial oath to act "without fear or favour, affection or ill-will" which is embedded in our Australian Legal system ---as well it should be. Everything I say today starts with that foundation.
The Justice Reform Initiative was established in September 2020 with a mission to reduce Australia's harmful and costly reliance on incarceration. We seek to reduce incarceration in Australia by 50% by 2030.
We come to this task with open hands and with a deep respect for the many highly principled people and organisations who are also working for change and especially Aboriginal and Torres Strait Islander people who bear the burden of massively disproportionate rates of incarceration. We seek to work collaboratively with these many diverse organisations and individuals and to help build the cohesion of a national campaign for reform. If you have not seen our website please take a look and you will be inspired by the growing strength and diversity of our supporter base.
We seek to build a community based movement for change to shift the public conversation and public policy away from building more prisons as the primary response to crime and move instead to proven alternative evidence-based approaches that break the cycle of incarceration and that certainly includes therapeutic approaches to criminal justice.
Our growing list of patrons includes 120 eminent Australians, including two former Governors- General Sir William Deane and Dame Quentin Bryce, former Ministers, and Members of Parliament from all sides of politics, academics, respected Aboriginal and Torres Strait Islander leaders, former senior judges, including High Court justices, and many other community leaders who have added their voices to the movement to end the cycle of incarceration in Australia. We also have more than 120 supporter organisations which have joined the movement to reduce incarceration. This includes; The Law Council of Australia; the Australian Medical Association; Federation of Ethnic Community Councils; the Australian Council of Churches; the Australian Catholic Bishops Conference, and multiple First Nations led organisations and service delivery organisations who have expertise working with people who have been impacted by the justice system.
Let me make some critical points about the Justice Reform Initiative at the outset:
First, we are not an organisation which advocates the abolition of prisons and common sense tells us that, at this stage of human evolution, there are people who need to be incarcerated to protect the community, or for some other justifiable public policy reason.
Secondly, I want to highlight that the Justice Reform Initiative does not seek to apportion historical blame for the current state of affairs to either side of politics. The fact is that the entrenched failure of the system has 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 that rather than being soft on crime, the opposite is the case, and we advocate policies 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 has left 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 of Enough is Enough, 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, I need to emphasise that we strongly support world’s best practice in policing and in prison administration although time will not permit an examination of those best practices today. Accountability needs to go right to the top and this particularly applies to the systemic changes recommended by coronial enquiries. Leadership is required at the top of these services and from relevant Ministers to drive those best practice changes and to support implementation of the recommendations of key reports such as the Royal Commission into Aboriginal Deaths in Custody and the Australian Law Reform Commission Pathways to Justice Report. We are also encouraged by the commitment of some Police Associations to early intervention and diversion programs in juvenile justice. I also want to emphasise that, of course we support bail reforms and reforms to mandatory sentencing laws and these too are vital issues but they are not the subject of my presentation today.
Sixthly 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 what does our national prisons report card look like and what do we see when we look behind the walls of youth detention centres and prisons across the country?
Let me begin by giving you the latest snapshot of the incarceration of children and young people.
The most recent Productivity Commission data from the Report on Government Services (ROGS) released early in 2023 shows that there are 1,385 permanently funded beds in Australian youth detention centres. The average daily number of young people in these centres around Australia is 822. Children’s court data shows us that in 2020/2021, 982 children were actually sentenced to a period of custody in a Correctional Institution – (with an additional 293 sentenced to custody in the community, and a further 517 receiving a fully suspended sentence).
However, the total number of children who cycle in and out of prison over the course of the year is significantly higher. The ROGS data shows us that in 2021/2022 there were 4350 children who were imprisoned over the course of the year. More than 50% (2310) of these children were Aboriginal.
When we look at release, reception and length of time in custody, we begin to get a much clearer sense of what it is that is actually happening for these 4350 children. The Australian Institute of Health and Welfare (AIHW) data shows us that each year there are 8240 receptions into custody and 8227 releases. Children have on average 2 releases from custody over the course of a year.
AIHW data from 2022 shows us that on an average day in children’s prisons 589 children (72%) were unsentenced and 230 (28%) were sentenced. However, again, the flow through data shows us a much more comprehensive picture of the over-use of imprisonment for unsentenced children. 97% of children received into custody in 2020/2021 were unsentenced. And 90% of children released from custody were also released from unsentenced detention. For those children who were released from unsentenced detention 63% ended up being released on bail (into the community). 36% of unsentenced children completed their remand period and received some form of sentence. But of this cohort, only 20% went on to be sentenced to detention.
AIHW (in their justice and safety research) also gives us a breakdown of length of time children are spending in custody. The average length of time children who are unsentenced are spending in custody in Australia is 49 days. The average length of time in custody for children who are sentenced is 105 days. The bottom line is that the vast majority of children who are incarcerated in youth detention in Australia have not had their day in court, and the majority of these children will not go on to be given a custodial sentence.
In relation to level of disadvantage of the children and young people in youth detention centres, the Banksia Hill study in WA associated with one of our patrons Professor Fiona Stanley showed that 89% of the children in the centre suffered from some neuro developmental disability and almost 36% were impacted by FASD. While comprehensive data is not available, which is itself an issue, the indications are that that in other youth detention centres across Australia there is a wide range but comparable degree of disability and disadvantage of the kids in youth detention.
The evidence shows that 80% of children who are released from sentenced detention in Australia return within 12 months.
Although it is more complex to collect recidivism data for children who were not sentenced, it is clear from the sheer churn of numbers of children through the system that there are incredibly high rates of return to custody for children who have spent time in unsentenced detention as well.
The Justice Reform Initiative proposes building on the substantial evidence base in this country and elsewhere about ‘what works’ to reduce incarceration, and re-orienting the current approach to one that prioritises community led diversionary and support options. If this were to happen then police, magistrates, and judges around Australia including in rural and remote areas would able to refer children who came into contact with the justice system easily into community led alternatives; pre-charge diversion programs; bail support and accommodation; Aboriginal organisations place based alternatives; intensive family support; programs and services and supports that we know can disrupt cycles of incarceration. We will publish “What Works” reports in every jurisdiction in the coming months.
The most telling vindication of the truth of our assertion about the appalling lack of services and supports for the most marginalised and at risk kids in the country came from the Governments of Australia themselves who issued a public statement confirming that it was the lack of services and alternative options that was the principal reason given by the national meeting of Attorneys General for failure to progress raising the age of criminal responsibility above the age of 10 in most jurisdictions.
We have responded to this stark reality of this near invisible level of alternatives with our call for the creation in each State and Territory of a “Breaking the Cycle and Safer Communities Fund” to be also supported by the Australian Government and I will have more to say about this proposal later.
Turning now to the financial cost of running this failed incarceration system, according to the latest figures from the Productivity Commission (2023) the cost of incarcerating one child in custody for one day is $2,720. The cost of incarcerating a child in custody for a year is $992,800. Across Australia we spend $816,245,000 each year on locking up children. This does not take into account the cost of new capital works, and it doesn’t even begin to take into account the cost of crime, disconnection from family and communication, the absence of education, disability and mental health support, and the life-long costs in terms of risks of entrenched justice system involvement by the children and young people.
As for new capital expenditure, while there are currently 18 children’s prisons in Australia, at the time of writing there are plans in Queensland to build two more in addition to the existing prisons. In Darwin, construction of the ‘new’ Don Dale which will have 44 beds continues. In Tasmania, the Liberal Government has to its very great credit publicly committed to shutting down Ashley Detention centre and constructing new therapeutic centres. The failure of children’s prisons to achieve any of their intended crime-control and rehabilitative goals has been made abundantly clear. For the 4,350 children or more, who are cycling in and out of prison each year, there is a need for a genuine circuit breaker.
Turning to adult prisons what do we see when we look behind these prison walls?
What does a national snapshot look like?
I want to remind you what the incontrovertible statistics from the Australian Bureau of Statistics, The Productivity Commission, the Australian Institute of Health and Welfare tell us about our national prison population.
- There has been a 44% increase in the numbers of people in Australia’s 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 31% of the people in prison are Aboriginal. It is of note that some jurisdictions have even higher representation (NT- 86.3%, WA, 40.2% and QLD, 35.9%)
- 60% of people in prisons have been there before (and this number is considerably higher in some jurisdictions)
- The former NSW Commissioner for Corrective Services confirmed that 70% of the people in NSW prisons are functionally illiterate and the evidence is that this is in line with most other jurisdictions.
- 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 has been one of the fastest growing areas of incarceration and within that growth the numbers of Aboriginal women in prison have been increasing the fastest of them all. Aboriginal women are now 39% 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. A report from the Australian Institute of Criminology released this month showed that in NSW 16% of adults in prison and 52.6 of young people in youth justice reported that a parent had been imprisoned. These staggering figures demonstrate the need around Australia for interventions to support parents in prison and at-risk children whose parents are incarcerated. For Aboriginal participants the figures were even higher with 32% of adults and 66.4% of young people reporting a previously incarcerated parent. Women were also twice as likely as men to report that their mother had been in prison.
- At least 70% of women in prison have survived some form of sexual or family violence.
- A very large percentage of people you will see though the prison gates of both male and female prisons are there on short term sentences of 6 months or less with a third of the people in prison being on remand.
Sadly we have followed the American model even after the Americans have begun to discard it and to this day we continue to relentlessly build more and more prisons in this country. The evidence is in on this and if that idea worked, the Northern Territory would have the lowest crime rate in the country and likely one of the lowest in the world because the NT imprisons a higher proportion of their adult population than Texas and have by far the highest rate of youth detention in the nation by a country mile. But the Northern Territory tops the list of Australian jurisdictions for persons charged by police.
Sadly, our society is paying a huge price socially and economically for our record incarceration levels. The Australian Productivity Commission has reported that between the years 2003 and 2018 there were only two countries in the whole of the OECD which had a higher proportional growth in the rate of incarceration than Australia and they were Colombia and Turkiye.
The inevitable result of the current policies of Governments is to create an intergenerational underclass of people who go around and around the criminal justice system with all the attendant consequences of that for the individuals concerned, their families, communities, and society as a whole.
In a very real way jailing is failing.
Although there is at any one point in time a little more than 41,000 people in custody, the flow through data shows that there are 62,024 receptions over the course of a year, and 62,797 discharges from custody each year. This is critical information when we are thinking about the kinds of services that might be required to genuinely disrupt the cycle of incarceration.
There are currently 116 adult prisons in Australia. There are plans in almost all jurisdictions to build new prisons, or to expand existing infrastructure. This is happening at a time when crime rates in most of the major categories are at an all-time low. There is no causal relationship between imprisonment rates and crime. That is, crime reduction is not able to be explained by higher rates of incarceration but rather by a series of interrelated shifts in economic, cultural and social and justice policy. A recent in-depth analysis of crime in Australia, undertaken by Don Weatherburn and Sara Rahman (in their book ‘The Vanishing Criminal’), shows that imprisonment has no significant impact on crime rates. It raises interesting questions, does it not, when we consider that one of the purposes of imposing a sentence on someone is to “deter the offender and other persons from committing similar offences.”
Turning to the financial cost of adult incarceration in Australia - The cost of keeping someone in prison each year is around $107,638.00 (or 294.90 per day). In Australia we spend more than $4.2 billion each year on operating costs, and more than $6 billion each year when we include capital costs. Estimates of the cost of providing intensive, specialist community-based services with proven ability to keep people out of prison range from $8,000 to $36,000 per year with the latter higher cost arising where there were substantial disabilities involved and a very small caseload. Residential treatment is more expensive, but still far cheaper and more effective in reducing recidivism than incarceration.
The evidence confirms that imprisonment for adults in Australia is not working. It is not working to deter, rehabilitate or keep the community safer. As I mentioned previously more than half, (60%) of the people in prison in Australia have been in prison before – an increasing trend. In 2020-21, 45.2% of people released from prison in Australia returned to prison within two years.
In almost every state and territory there is longstanding legislation which states that imprisonment will be the punishment of last resort to be utilised only when other options have been excluded. There can be no doubt that if Governments invested evidence based alternatives to incarceration designed to break the cycle, that judges and magistrates would have a much wider range of judicial options for effective sentencing to reduce future offending, turn lives around and make the community safer.
At the same time in most if not all states and territories there are legislative provisions (largely reflecting the common law) which outline the purposes of sentencing which judges and magistrates have to apply. They are already seen to be challenging provisions to apply and at times seemingly contradictory as the High Court recognised in the Veen case. Veen v The Queen (No 2) (1988) 164 CLR 465 where Mason CJ, Brennan, Dawson and Toohey JJ said at 476:
“… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”
By way of example Section 3 A of the NSW Crimes (Sentencing Procedure) Act sets out the purposes of sentencing and includes reference to:
- preventing crime by deterring the offender and other persons from committing similar offences
- protecting the community from the offender and
- promoting the rehabilitation of the offender
among other provisions.
The assumption of this provision and the case law which supports it is that sentences of imprisonment deter, protect the community and offer opportunities for rehabilitation. Based on the evidence we are assembling, prisons are not successful in doing any of that.
Even the sentencing criterion of “protecting the community” suggests that locking someone up will actually make our communities safer, but surely this is not a point in time question. Sure people get locked up but there are 62,000 discharges from prison each year in Australia and they return to being our neighbours.
Shouldn’t our prison system and the alternatives to incarceration we advocate, place far greater importance on addressing the underlying issues which contributed to the contact with the criminal justice system in the first place, thus readying people to take their place back in the community?
We believe they should and I suspect that given that the theme of this conference is therapeutic jurisprudence, many of you are likely to agree. But currently, it cannot be seriously contended for example, that anything like the majority of people with mental health and substance dependency receive the help and support they need to address these issues while they are imprisoned, nor when they are released, and these people are more than 60% of the prison population. This is not a reflection on the many dedicated people who currently work on delivering these programs but it is rather commentary on the level of resources being allocated. In American prison commentary it is often said that prisons have become the new asylums and by definition devoid of meaningful and effective treatment.
What will they write about our state of human development in 30 years when they read of our astronomical levels of incarceration of marginalised and impoverished people, both adults and children as young as ten, despite the manifest evidence that it does not work to reduce crime or make communities safer let alone address one of the most critical, if not the most critical, challenge of our criminal justice system. How do we break the cycle of incarceration and help people turn their lives around?
So what works in keeping people out of prison including children and young people in youth detention?
As I mentioned, in the immediate months ahead the Justice Reform Initiative will be releasing major reports in each State and Territory to show to Members of Parliament and the community examples of “what works” in each jurisdiction and nationally – and internationally. This material may also be helpful for judicial officers casting around for evidence of what would be most effective, when they have to deal with the person standing before them.
We will also soon be releasing another paper which looks at alternatives to mainstream court processes and the evidence supporting alternative, diversionary, specialist and First Nations courts, and the evidence supporting restorative and transformative justice processes. The paper will argue that diversionary and problem focused court options should be expanded throughout Australia, particularly in regional and remote areas. We will also argue that alternatives to mainstream court processes, including restorative justice and far greater options for diversionary approaches should be available to a much larger cohort of people who come into contact with the justice system. Importantly the document will have a public education focus and give examples in Australia and internationally of some of the exciting and inspirational innovative justice developments which are already proving their value by the impressive evidence based outcomes which they are achieving.
We have substantially begun the systematic work which needs to be done, having conversations with members from all political parties and among the ranks of Independents in every State and Territory Parliament to win support for the establishment of Breaking the Cycle and Safer Communities Funds in every jurisdiction and will soon begin our conversations at the Federal level. We also believe that it is important to get cross party support for these initiatives to the greatest extent possible in all jurisdictions as this sends an important message to the community about the need for evidence-based public policy in this area.
We are therefore putting forward budget submissions to all Australian Governments (State, Territory and National) which call on them to support the creation of Breaking the Cycle and Safer Communities Funds which would be utilised to fund community-based alternatives to incarceration for many people caught in the justice system and cut recidivism by targeting other support at key touch points of the criminal justice system such as the intensive support programs for people leaving prison.
We also support Federal and State Government commitment to Justice Reinvestment however if they are going to make a long term difference, those place-based Justice Reinvestment projects must also be supported by substantial investment to address the systemic drivers of incarceration. In line with the Closing the Gap Strategy we are keen to support conversations at a national level between Aboriginal leadership and the National Government about the resourcing and structural shifts that are required to occur alongside place based approaches in order that the promise of justice reinvestment be realised.
Hand in hand with such additional necessary allocations to these funds we are also urging the application of existing resources in mainstream government agencies to also contribute to breaking the cycle. Examples of this would be targeted funding in Health including mental health programs and substance/alcohol dependency programs both to people in prison and people leaving prison. We also need to lift our game in the delivery of employment service programs to the tens of thousands of people walking out through the prison gate back into the community each year. Currently, very few of them obtain employment and many struggle simply to find a place to live. Even former President Trump was calling on the employers of America to give people coming out of prison a second chance and we want to hear our Australian politicians getting behind these initiatives as well.
There are many examples of where investment in alternatives to incarceration have already been shown to be extremely successful in breaking the revolving door of repeat offending and these will be comprehensively highlighted in the State and Territory reports that are in the course of preparation.
But just to give you some examples today, the work of the “Backtrack” organisation in Armidale, is funded almost entirely with philanthropic money and works with marginalised young people to divert them from the criminal justice system.
Over the last ten years, the intensive, holistic and relational case work provided by Backtrack Youth Services has supported more than 1000 children and young people at risk of criminal justice system involvement or entrenched in the justice system. An impressive 87% of the young people who leave Backtrack transition into employment or education. A UNSW report of the impact of the program on the local community in Armidale found a 35% reduction in crime because of the engagement of young people in the program.
Another example of the many evidence-based policies which could be funded from a Breaking the Cycle Fund are the intensive support programs for people leaving prison including those delivered by organisations like the Community Restorative Centre (CRC) which is funded by the NSW Government however, only for 5% of the approx. 20,000 people leaving NSW prisons each year. You can read on the CRC website, the independent UNSW evaluation of the program which demonstrates a 65 % reduction in the rate of repeat offending. It makes much more sense to expand this cost effective intensive support model program in NSW and around the country rather than expending $100,000 dollars plus currently spent for each person in prison for a year.
With the backing of the NSW Government, NSW Children's Court has also supported a new approach to dealing with youth justice in NSW which has been given the name “A place to go” and it aims to improve supports and deliver a better service response for 10 to 17 year old children and young people in contact with the criminal justice system in the Nepean region of NSW with a focus on young people on remand. It draws on services from across the NSW government and non-government service providers to deliver a coordinated and multiagency service solution which can support a young person to change their life trajectory. A “Place to go” uses a young person’s contact with Police and/or the court as an opportunity to intervene early by linking them with appropriate community supports and services, court liaison staff, cross agency panels and dedicated short-term transitional accommodation. The NSW Children’s Court is very supportive of initiatives like this which provide collaborative and wrap around service supports to a young person and community engaged approach to dealing with the challenges they face.
We would urge all sides of NSW politics to support this hugely effective new approach and for the incoming NSW Government to provide the resources and the backing of the Premier to extend the model across the State and for other states to adopt a similar approach. We can only but imagine how this breakthrough work could be enhanced by the full backing of the incoming NSW Government (Liberal or Labor) to create a Breaking the Cycle Fund to open up so many more options for these young people,
I also draw your attention to Section 16 (1) (d) of the NSW Children’s Court Act which gives a critical role to the NSW Children’s Court President to “to confer regularly with community groups and social agencies on matters involving children and the Court”. I think this provision has assisted the leadership of the court over time to shape a successful model of collaborative wrap around services of family, Government and community and NGO resources which can truly help change young lives and I commend it to you Australia wide.
As I have explained we work with people from all political parties right across the country in a very even handed way and are strictly non-party political in all that we
- We encourage cross party co-operation in all parliaments on justice reform. For this reason we were encouraged by the resolution passed unanimously at the 2021 ALP National Conference as follows:
“Australia has a higher incarceration rate than all the countries of Western Europe and Canada imposing increasing costs on the nation, and which fails to reduce recidivism, provide effective outcomes for victims of crime or to make our communities safer. Learning from the experience of comparable countries Labor will seek cross party cooperation to lead and encourage all jurisdictions to collaborate in supporting evidence based criminal justice policies to address these issues and which rely less on high cost and harmful prisons.”
In our recent conversations with parliamentarians from all around Australia, we have heard a genuine wish from a landslide majority of people we have spoken to from all parties to try and find some common ground to break the cycle of criminal justice system and disadvantage and we look forward to taking that message to Parliament House in Canberra.
Before I close I want to alert you that Australia has international obligations under the International Covenant on Civil and Political Rights. There are provisions in that Covenant where arguably Australia is clearly in breach of its international legal obligations directly relating to the administration of the criminal justice system in this country which I was reminded of in preparing for this presentation.
Remember this is a Convention of long standing which was ratified by the Government led by Prime Minister Malcolm Fraser over four decades ago.
Article 10 (2) (a) provides that "Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and separate treatment appropriate to their status as unconvicted persons"
You only have to read the reports of some of the appointed prison inspectors to know that this is not happening in all jurisdictions, and this is a big issue given that one third of the prison population is now on remand.
Article 10 (2) (b) provides that "accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication"
We also know that this is not what happens in all parts of this country and in Queensland alone the Children's Court President has revealed in the court’s recently tabled annual report that an average above 460 children were involved in the 7001 admissions of young people into police watch houses – designed specifically for detaining adults – across the 12-month period. Of those admissions, 166 children spent an average of eight to 14 days in a police watch house, while a further 305 were held for periods of five to seven days.
Article 10 of the convention provides in paragraph 3, that "The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”
Obviously, this is a description of a prison system on some other planet as it in no way represents the essential aim of Australia's prison system as I have established today.
Highlighting these breaches is not some academic exercise because Australia has become a party to the Optional protocol of the International Covenant on Civil and Political Rights which provide a right of individual petition to the Human Rights Committee of the UN.
It is true that Australia has a reservation concerning Article 10 of the Convention that I have referred to but, even if it remains, I do not believe that at some point in the not too distant future it will prevent Australia being admonished before the Human Rights Committee of the UN.
The reservation states “Australia accepts the principle stated in paragraph 1 of Article 10 and the general principles of the other paragraphs of that Article, but makes the reservation that these and other provisions of the Covenant are without prejudice to laws and lawful arrangements, of the type now in force in Australia, for the preservation of custodial discipline in penal establishments.
In relation to paragraph 2(a) the principal of segregation is accepted as an objective to be achieved progressively. In relation to paragraphs 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.”
However while alerting you to the importance these international obligations, the Justice Reform Initiative believes our Australian justice and prison reform challenge will be won by the power of Australian public opinion led by fair minded Australians of good will from all walks of life.
Those of us working for evidence based change can take heart and inspiration from at least some larger than life figures in history.
Nelson Mandela reminded us that "It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
However, it was Winston Churchill, who in 1910 as the Home Secretary of Britain and the Minister responsible for prisons reminded the House of Commons in a most beautiful and insightful speech how he saw the role of prisons.
He said on July 20, 1910
"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. A calm and dispassionate recognition of the rights of the accused against the state and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry of all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes and an unfaltering faith that there is a treasure, if only you can find it in the heart of every person – these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and proof of the living virtue in it.”
I find these words inspirational, and I hope you do to.
Churchill then laid out his plans and said:
"I shall certainly be very glad to be able to announce it to the House of Common 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 there at all"
I rest my case.
Thank you again for your invitation to be with you today.
February 25th, 2023