By Gary Humphries and Indra Esguerra, Canberra Times, 26 June 2023

Anyone who has spent a day sitting in court or meeting with people held in prison can tell you that our criminal justice system continues to disproportionately impact vulnerable people.

The evidence backs this up, and similarly shows that alcohol and other drug dependency plays a significant role in the lives of people who enter the criminal justice system.

Alcohol and other drug dependency is a health and a social issue long before it becomes a criminal one. There is a clear argument for the ACT government to continue investing in proven alternatives to incarceration that shift the default punitive response to disadvantage - and there is no greater opportunity than the immediate extension of a drug and alcohol court to the Magistrates Court to include less serious offences.

The ACT's Supreme Court drug and alcohol sentencing list, also called the drug and alcohol court, has proven extraordinarily effective in diverting people with drug or alcohol dependency away from prison and improving their wellbeing.

Despite the court being in a pilot phase since 2019, an independent study found it saved $14 million from avoided prison time within three years, eclipsing the $13.3 million government investment to run the court over two years.

The court has subsequently received widespread support and has been endorsed by Supreme Court Chief Justice Lucy McCallum, who said drug and alcohol treatment orders were clearly effective in treating addiction and reducing recidivism.

This is consistent with a growing body of evidence about the efficacy of drug courts operating across most Australian states.

However, disappointingly, the sentencing list remains limited to the Supreme Court and neglects the many people with lower order fines appearing before the Magistrates Court - who are likely experiencing other areas of disadvantage, such as low income, unemployment, and homelessness, putting them at greater risk of becoming trapped in the criminal justice system.

This week, on behalf of the Justice Reform Initiative, we presented a submission at the Legislative Assembly's inquiry into penalties for minor offences and vulnerable people, where expanding that specialist list to the Magistrates Court was among our key recommendations.

Vulnerable populations are disproportionately over-represented in prison, in the ACT and across Australia.

This is a result of an underpinning cycle of poverty and disadvantage that prison both exacerbates and entrenches. Almost 40 per cent of adults leaving prison in the ACT return within two years of release, and 78 per cent of adults in prison in the ACT have been there before.

Evidence around Australia clearly shows people experiencing disadvantage face a much higher risk of fines and other minor penalties escalating into more serious criminal justice system contact.

The reasons for this are multi-faceted, but what is very clear is that we cannot rely on punitive measures if we want to address the social drivers and social determinants of offending.

Reducing the overincarceration of vulnerable people in the ACT requires a careful examination of how we penalise minor offences, how we might employ processes and programs that give magistrates the capacity to tailor an appropriately informed response to each situation, and how we might properly resource viable alternatives to disrupt the trajectory into the criminal justice system.

Many offences that are related to alcohol and other drug dependency need to be viewed through a social and public health lens. We know that criminal justice contact becomes likely when this dependency is compounded by other areas of disadvantage, such as unemployment, homelessness, and poverty, and we need responses that acknowledge this.

The ACT has made a range of positive moves in recent years, such as enabling police to move intoxicated people to a place of safety, rather than being punished, and offering payment plans for people who are unable to pay fines immediately, but failing to include a drug and alcohol sentencing list in the Magistrates Court is a glaring area in which we are falling behind.

Various models of drug courts already operate in NSW, Victoria, Queensland, Western Australia, and South Australia, and these courts have all reported a significant reduction in reoffending.

A 2014 evaluation of the Victorian drug court, which has been operating for more than 20 years, reported a cost-benefit ratio of $5 community dividend for every $1 spent on the program, taking in a 32 per cent reduction in unemployment rates and a stark 70 per cent reduction in the number of days in prison for drug court participants - who would otherwise have been placed in custody if not for the treatment order.

Victoria now has a specialist list, presided over by a specially trained magistrate, which operates at no additional cost, and required no legislative amendments but specifically accounts for instances of substance abuse.

The ACT has shown solid commitment to investing in alternatives to incarceration, but the government in its upcoming budget must continue to invest in the evidence and focus on programs that create pathways away from a criminogenic system that is entrenching disadvantage.

If we consider the Supreme Court drug sentencing list as a trial, it is clear that it has been successful for more serious offences, and should be extended to also deal with minor offences in the Magistrate's Court.

• Gary Humphries is a former chief minister of the ACT and federal senator for the ACT. He is a patron of the Justice Reform Initiative. 
  
  
• Indra Esguerra is the initiative's ACT advocacy and campaign coordinator.