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VICTORIAN COUNCIL OF SOCIAL SERVICE ISSUE 8 

CRIME AND 

JUSTICE

CONTENTS INSIGHT 

CONTRIBUTORS 

CRIME AND JUSTICE 

04. MYTHS, MISINFORMATION AND 

MISSED OPPORTUNITIES 

Hugh de Kretser 

08. IN CONVERSATION 

Q&A with Attorney General 

Robert Clark 

012. STATISTICS, CRIME 

AND POLITICS 

Professor Arie Freiberg 

015. YOUTH JUSTICE: GETTING 

THE EARLY YEARS RIGHT 

Judge Paul Grant 

018. TOUGH ON CRIME IS NOT 

SMART ON CRIME 

Judge Peggy Hora 

022. TIME TO ARREST RISING 

ABORIGINAL PRISON RATES 

Professor Chris Cunneen 

025. Q&A ON VICTORIAN 

ABORIGINAL JUSTICE 

AGREEMENT 

Andrew Jackomos 

026. DISABLING JUSTICE 

Professor Eileen Baldry 

030. THINKING OUTSIDE: 

ALTERNATIVES TO REMAND 

FOR CHILDREN 

Julie Boffa, Michael Livingstone 

034. HEARING THE VOICES OF 

YOUNG PEOPLE 

Bernie Geary OAM 

036. JUSTICE REINVESTMENT: THE 

CIRCUIT BREAKER 

David Brown 

039. THE ROLE OF 

OUT-OF-HOME CARE 

Ché Stockley 

042. NEW RISKS IN FAMILY 

VIOLENCE REFORMS 

Alison MacDonald 

044. END TO RACIAL PROFILING 

IN SIGHT 

Anthony Kelly 

Publisher: Carolyn Atkins 

Editor: Marie McInerney 

Design: Nicole Dominic 

Printer: Blueprint 

Insight is printed on recycled paper, 

using vegetable-based inks, 

by an ISO 1400-accredited printer. 

Special thanks to: 

Hugh de Kretser, Paula Grogan, 

Llewellyn Reynders, Tiffany Overall 

(Youthlaw), Andrew Jackomos for 

policy advice and support; all our 

contributors; James Copsey; our 

publication sponsor HESTA; advertisers 

RMIT, Westpac, bankmecu, and Jesuit 

Social Services; Michelle Lane. 

Articles are subject to copyright. Apart 

from dealings under the Copyright Act 

1968, permission must be obtained 

from both VCOSS and the author. 

VICTORIAN COUNCIL 

OF SOCIAL SERVICE 

Level 8, 128 Exhibition Street 

Melbourne 3000 

03 9235 1000 

VCOSS raises awareness of the 

existence, causes and effects of poverty 

and inequality, and contributes to initiatives 

seeking to create a more just society. 

www.vcoss.org.au 

Join the Twitter conversation at #vcoss 

Accessible format 

If you would like to receive this 

publication in an accessible 

format, please telephone 

03 9235 1000 or email 

vcoss@vcoss.org.au 

Eileen Baldry is Professor of 

Criminology, School of Social Sciences, 

at the University of New South Wales 

and President of the Council of Social 

Service of New South Wales 

Julie Boffa is Policy Manager 

at Jesuit Social Services 

David Brown is Emeritus Professor 

at the Faculty of Law at the 

University of New South Wales 

Chris Cunneen is Professor of 

Justice and Social Inclusion at 

the Cairns Institute and School of 

Law, at James Cook University 

Hugh de Kretser is the 

Executive Director of the 

Human Rights Law Centre 

Arie Freiberg is Emeritus Professor at 

the Faculty of Law, Monash University, 

and Chair of the Victorian Sentencing 

Advisory Council and the Tasmanian 

Sentencing Advisory Council 

Bernie Geary OAM is Principal 

Commissioner at the Commission for 

Children and Young People in Victoria 

Judge Paul Grant was President of the 

Children’s Court of Victoria from 2006-13 

Judge Peggy Hora served 21 years on 

the California Supreme Court and was 

South Australia’s Thinker in Residence 

on the justice system in 2009-10 

Andrew Jackomos is Director of the 

Koori Justice Unit which coordinates the 

Victorian Aboriginal Justice Agreement 

Anthony Kelly is Executive Officer 

of the Flemington Kensington 

Community Legal Centre 

Michael Livingstone is Policy 

Officer at Jesuit Social Services 

Alison MacDonald is Policy Officer 

at Domestic Violence Victoria 

Ché Stockley is Senior Policy Officer 

at MacKillop Family Services 

ISSN 1838 5184 

ISBN 978-0-949748-85-0

03. EDITORIAL 

INSIGHT 8 

EDITORIAL. 

The earlier a Victorian child appears in court, the more likely 

they are to be in the criminal justice system as an adult. 

That fact alone tells us how best to prevent crime and 

to stop spiralling prison numbers – which in Victoria are 

now higher than at any time since 1898. It also provides 

a vital insight into the lives of many people who commit 

crimes and begins to paint a real picture of how our 

criminal justice system works and pinpoints where it 

fails. Likewise the snapshot cited in this edition of Insight 

by Judge Paul Grant, former President of the Children’s 

Court of Victoria, of all the young people in detention in 

Victoria in 2009-10: 

• 40 per cent had child protection involvement 

• 65 per cent were victims of abuse, trauma or neglect 

prior to incarceration 

• 68 per cent had been suspended or expelled 

from school 

• 40 per cent presented with mental health issues 

• 22 per cent were registered with Disability Services 

• 84 per cent of cases had alcohol or drugs related 

to the offending 

• 10 per cent were parents. 

As other contributors to this edition also show, 

vulnerability is not limited to age. People with mental 

or cognitive impairments are not only more likely to be 

victims of crime, but also to be convicted and imprisoned 

for them. So too Aboriginal Victorians, who remain 

significantly over-represented in our prisons and at all 

stages of the youth justice system. Institutional bias 

remains a significant factor in dragging people into the 

justice system – as shown by a landmark case involving 

African-Australian men who were subjected to ‘racial 

profiling’ by police. 

The scales of justice are not fair, as Hugh de Kretser 

points out in the opening article: 

The lives of the vast majority of prisoners feature child 

neglect, cognitive disability, poor education, drug and 

alcohol abuse, unemployment and homelessness in 

one or more combinations. 

Yet Victoria – like other states in Australia – remains 

trapped in a ‘tough on crime’ cycle. Driven by imprecise 

or often misleading evidence and political imperatives, 

it’s a vicious cycle that is consuming hundreds of millions 

of dollars to pay for more and more prison beds while 

doing little to make the community safer. Worse, it is 

failing many vulnerable Victorians and undermining other 

government programs that seek to address the causes 

not the consequences of crime. 

Other countries and states have begun to learn the 

lessons – whether driven by the costs and conditions 

of prisons, or a shifting understanding of the role 

disadvantage plays in crime. Politicians across the 

political spectrum have begun to move towards 

approaches like Justice Reinvestment, which seek to 

redirect funding from the custodial to the community. 

But prisoner numbers have continued to rise in Victoria 

under both Labor and Coalition governments, and we 

now see the current Victorian Government making huge 

financial investments in prisons and protective service 

officers at the expense of health, housing, education, 

drug and alcohol services, and family supports which 

can work to stop crimes before they happen. 

We welcome the contribution in this edition from 

Victoria’s Attorney General Robert Clark. The 

Government has taken some valuable steps to better 

support vulnerable Victorians, in particular vulnerable 

children and young people. But it is yet to fully 

acknowledge and act on the evidence that prevention, 

not punishment, is the key to fighting crime. 

The trajectory of young people who suffer abuse and 

neglect tells us that many of those who end up in our 

prisons are victims of crime themselves, and of the 

failure of government to protect and support. We need 

to start first to address those injustices so that we do not 

perpetuate them on future generations. 

We hope you find much to read and think about in 

this Crime and Justice edition of Insight, and that it 

provides a valuable resource for your work. We thank our 

contributors for their generous support in helping us to 

make the case for change. 

We will be posting additional articles on crime and 

justice issues on the VCOSS website: www.vcoss.org.au 

Carolyn Atkins 

Acting CEO, VCOSS 

June 2013

04. CRIME AND JUSTICE 

HUGH DE KRETSER 

INSIGHT 8 

Myths, misinformation 

and missed opportunities 

We should want to prevent crime, not just 

punish it. Hugh de Kretser says there is no 

excuse for the failure of governments to 

act on crime prevention when there is no 

shortage of evidence about what works. 

There’s one thing we can all agree on; we need 

to reduce crime. Crime, and particularly violent 

crime, can have devastating consequences for 

individuals and communities. Eliminating violence 

is one of the greatest human rights challenges 

Victoria faces. 

While overall crime rates in Victoria have been 

trending downwards over the past decade, rates 

of assault have increased and family violence and 

sexual assault rates remain unacceptably high. 

We need to do more to reduce crime, to stop 

murders, rapes and assaults. Which is why we 

need to do what works. 

The problem is, there is often a disconnect 

between what works to reduce crime and what is 

implemented by governments. Too often, public 

debate around crime, particularly in politics and 

the tabloid media, is focused on punishment 

rather than on prevention. This diverts focus and 

resources away from proven initiatives that reduce 

crime towards blunt, harmful and extremely costly 

prison expansion. 

THE MYTH OF LENIENCY 

The mainstream media plays a key role in 

shaping public perceptions of the criminal 

justice system and commercial pressures drive 

mainstream media coverage of crime. Research 1 

has shown that the media disproportionately 

focuses on a small number of dramatic and 

violent cases, omitting relevant information and 

leaving the public with a highly inaccurate picture 

of crime and justice. Common misconceptions 

include people perceiving crime to be constantly 

increasing; overestimating the proportion of crime 

that involves violence; and underestimating the 

proportion of offenders sentenced to prison and 

the length of prison sentences. 

This fuels perceptions that courts are lenient on 

offenders. Ask someone if they think that courts 

are too lenient on offenders and most will agree. 

A 2008 Victorian survey 2 showed that almost 64 

per cent of Victorians surveyed felt that sentences 

in criminal cases were too lenient – results that 

are generally consistent with overseas studies 

over the past 30 years. 3 

At first glance, they suggest that sentences need 

to be made harsher to bring them into line with 

community expectations. In the lead up to the 

Victorian 2010 election, the Coalition interpreted 

public sentiment this way, announcing that 

‘Victorians are sick and tired of seeing offenders 

receive hopelessly inadequate sentences time 

and time again’. 4 This statement framed a raft of 

reforms to Victorian sentencing law, including: 

• mandatory minimum sentences for 

gross violence 

• baseline sentences 

• abolition of suspended sentences 

• abolition of home detention. 5 

Common features in these reforms, which are 

now being implemented, are harsher punishment 

and reduced court discretion. 

Experience from the United States, however, 

shows that harsher punishments are unlikely 

to change public opinion. In the 1980s and 

1990s, sentencing and parole guidelines in the 

US became significantly harsher – including 

the introduction of new sentencing guidelines, 

mandatory sentencing legislation, ‘three-strikes’ 

legislation and a reduction in non-custodial 

sentencing. As a result of these policies, the 

prison population increased by 70 per cent. 6 

Despite these changes, the proportion of 

Americans who thought that courts were too 

lenient remained high – between 70 per cent and 

85 per cent. 7


INSIGHT 8 

The message is clear – when the public has 

the same facts about a crime as a court, 

they generally agree with court sentencing. 

More importantly, there a is big difference 

between public opinion about sentencing in the 

abstract, and informed public opinion about 

sentencing in particular cases. 

A significant 2010 Australian study 8 involved 

698 jurors who sat through 138 trials. The jury’s 

job is to determine guilt. The judge determines 

punishment. In this study however, the jurors were 

asked to hear the arguments about sentencing 

and deliver a hypothetical punishment, which was 

then compared to the court’s actual sentence. 

In 52 per cent of cases, the jury sentences were 

more lenient than the judges’, and only 44 per 

cent more severe. Further, when the actual 

sentence of the judge was revealed, 90 per cent of 

jurors thought it was appropriate. These and other 

studies debunk the myth that court sentencing 

is too lenient. The message is clear – when the 

public has the same facts about a crime as a 

court, they generally agree with court sentencing. 

COSTS OF PRISON EXPANSION 

Victoria’s prison population has increased almost 

40 per cent over the past decade, far outstripping 

the rate of increase in the state’s population, and 

requiring spending on prisons to triple in raw terms 

since 2002-03. 9 Rather than acting to relieve jail 

capacity pressures, the sentencing reforms being 

implemented by the current Victorian Government 

will accelerate the increase in imprisonment. 

The Department of Justice has acknowledged 

this, saying that the reforms are expected to 

be ‘the main driver’ of prison bed demand. 10 In 

other words, how we choose to punish crimes, 

not crime rates themselves, will be the main 

driver of prison growth. A recent report of the 

Victorian Auditor-General on prison planning 

noted Corrections Victoria forecasts that the male 

prisoner population alone will grow by 45 per 

cent between June 2011 and June 2016 to 6,391 

prisoners—an increase of 1,974 male prisoners 

over five years. 11 

Putting more Victorians in jail and for longer is the 

wrong approach to crime for three key reasons. 

Firstly, it will exact harsher punishment on already 

disadvantaged Victorians. The lives of the vast 

majority of prisoners feature child neglect, 

cognitive disability, poor education, drug and 

alcohol abuse, unemployment and homelessness 

in one or more combinations. Less than 10 per 

cent of male prisoners and less than 20 per 

cent of female prisoners in Victoria finished high 

school or its equivalent. Aboriginal Victorians 

are 13 times more likely to be jailed than non 

Aboriginal Victorians. 12 One recent Victorian study 

found that 42 per cent of male prisoners and 33 

per cent of female prisoners had an acquired 

brain injury. 13 The list goes on. 

Secondly, it will do little to prevent crime. Longer 

prison terms don’t deter crime. Politicians like to 

talk about sending a message to offenders by 

increasing jail terms but most offenders aren’t 

listening and don’t rationally consider whether 

the punishment is 5 or 25 years when they 

commit a crime. Sending someone to jail does 

stop someone from offending in the community 

over the course of their prison sentence. But 

studies show that large increases in the prison 

population produce at best only modest 

decreases in crime rates. 14 New South Wales has 

for most of the past decade locked people up at 

almost twice the rate of Victoria, yet its crime rate 

hasn’t been any lower. 15 Worse, there is evidence 

that the experience of prison makes someone 

more likely to offend on release. 16 Around 50 

per cent of Victorian prisoners have been in jail 

before and around a third will be back in jail 

within two years of release. 

Finally, it costs enormous amounts of money to 

send someone to jail. Prison construction


INSIGHT 8 

An estimated $2 billion of taxpayer funds will be 

needed over the next five years to cater for an 

increase in imprisonment driven mainly by harsher 

punishment policies, not crime rates. 

costs vary greatly but in broad terms it can cost 

around half a million dollars or more to build each 

prison bed, on top of the annual operating costs 

of housing each prisoner of around $90,000. 

On these figures, it will cost around $1 billion 

to build extra prison beds for the extra 1,974 

male prisoners that Corrections Victoria predicts 

by 2016, plus an extra $178 million a year in 

operating costs. This is on top of the existing 

current annual prison budget of $707 million. 

That would mean, an additional $2 billion or so 

will be diverted over the next five years from 

a finite pool of taxpayer funds to cater for an 

increase in imprisonment driven mainly by 

harsher punishment policies. This means added 

pressure on funding initiatives that tackle the 

factors that cause crime. 

Already, we have seen significant continued 

pressure on child protection services, as well 

as cuts to the Victorian Certificate of Applied 

Learning (VCAL), to Vocational Education and 

Training (VET), including TAFE, occasional 

child care, and cuts to the Social Housing 

Advocacy and Support Program, not to mention 

the pressure on services directly aimed at 

rehabilitating offenders. You only have to read the 

Adult Parole Board’s annual reports to appreciate 

the lack of housing, substance abuse and mental 

health services for offenders. The inadequate 

funding for these services undermines work to 

minimise the risk of reoffending. 

STOPPING CRIME 

The good news is that there is a wealth of 

evidence about what works to reduce crime 

and numerous successful programs which are 

making a positive impact. Early intervention 

programs targeting vulnerable children and youth, 

sentencing programs that address the causes of 

crime and programs that provide stable housing 

and employment opportunities for prisoners on 

release are all effective ways to reduce crime. 17 On 

the law enforcement side, increasing the perceived 

risk of apprehension is more effective in deterring 

crime than increasing the severity of punishment. 18 

We should be outraged by crime and the harm 

it causes. The key to reducing crime is shifting 

focus away from punishment towards evidencebased 

initiatives that prevent crime before the 

damage is done. There is no excuse for the failure 

of governments to take adequate steps to prevent 

crime when there is no shortage of evidence 

about what works. 

Hugh de Kretser is the Executive Director 

of the Human Rights Law Centre and was 

the spokesperson for Smart Justice www. 

smartjustice.org.au from 2010-2012. Smart Justice 

promotes effective, humane and evidence-based 

criminal justice policies. 

1. K Gelb, Myths and Misconceptions: Public opinion versus public judgment 

about sentencing, Sentencing Advisory Council, 15, 2006; K Gelb, More 

Myths and Misconceptions, Sentencing Advisory Council, 7, 2008. 

2. Department of Justice, Perceptions of Justice Survey Results 2008, 

Melbourne, 2009, available at www.justice.vic.gov.au 

3. K Gelb, op. cit, 2006, 11. 

4. R Clark, ‘Coalition to set minimum standards for serious crime’, Media 

Release, Melbourne, 2010, available at http://www.robertclark.net/news/ 

coalition-to-set-minimum-sentence-standards-for-serious-crime/ 

5. M McDonnell, J Farrell, “Tough, tougher, toughest: A new government’s 

approach to sentencing laws in Victoria”, Alternative Law Journal, vol. 

37:3, 2012. 

6. ibid. 

7. J Roberts, ‘Public opinion and sentencing policy’ in S Rex & M H Tonry 

(eds), Reform and punishment: The future of sentencing, Willan, 2002, 

pp25–26. 

8. K Warner, J Davis, M Walter, R Bradfield, R Vermey, Public judgment 

on sentencing: Final results from the Tasmanian Jury Study, Australian 

Institute of Criminology, 2011, www.aic.gov.au/media/2011/ 

february/20110210.html and http://www.aic.gov.au/publications/ 

current%20series/tandi/401-420/tandi407.html 

9. Sentencing Advisory Council, Victoria’s Prison Population 2002-2012, 

2013; see 2013-14 State Budget, Budget Paper 3, 91 and 2004-05 State 

Budget, Budget Paper 3,172. 

10. Department of Justice, Annual Report 2010-11, Melbourne, 2011, p30. 

11. Office of the Victorian Auditor General, Prison Capacity Planning: Report, 

Melbourne, November 2012, p18. 

12. Sentencing Advisory Council, Comparing Sentencing Outcomes for 

Koori and Non-Koori Adult Offenders in the Magistrates’ Court of Victoria, 

Melbourne, 2013. 

13. Corrections Victoria, Acquired brain injury in the Victorian prison system, 

Department of Justice, Melbourne, 2011. 

14. D Weatherburn, Law and Order in Australia: Rhetoric and Reality, Sydney, 

2004, pp123-128. 

15. D Weatherburn, K Grech & J Holmes, Why does NSW have a higher 

imprisonment rate than Victoria NSW Bureau of Crime Statistics and 

Research, 2010; Australian Bureau of Statistics, Recorded Crime Victims, 

Australia 4510.0 2010, 2011 and Crime Victimisation, Australia 4530.0 

2009-10, 2011, 11, 13. 

16. Department of Justice, Statistical Profile of the Victorian Prison System 

2005-06 to 2009-10, Melbourne, 2010, p37. 

17. See Smart Justice, Preventing Crime the Smart Way, Melbourne, 2010, at 

http://www.smartjustice.org.au/resources/SMART_Prevention.pdf 

18. D S Nagin, Deterrence in the twenty-first century: A review of the evidence 

http://www.heinz.cmu.edu/research/472full.pdf

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INSIGHT 8 

IN CONVERSATION: ROBERT CLARK 

The Hon. Robert Clark is the Attorney-General, Minister 

for Finance and Minister for Industrial Relations in the 

Victorian Government. 

1. How would you define your approach to justice and 

what has informed it over the years 

Upholding the rule of law and the role of democratically 

elected Parliaments. Appreciating the value of the laws 

and legal institutions we have been fortunate to inherit 

while looking for opportunities to reform and improve. 

2. There is a wealth of evidence showing that Victorian 

prisoners typically come from disadvantaged 

backgrounds with higher rates of intellectual disability, 

drug or alcohol issues, homelessness, mental illness, 

unemployment and poor educational outcomes. What 

does the role of disadvantage say to you about crime 

and the way to approach prevention and stopping 

reoffending 

The prevalence of these problems shows the 

importance of institutions, organisations and 

individuals within the community taking whatever 

further opportunities may be available to tackle the 

causes. It also highlights the importance of careful 

investigation, examination and reflection regarding the 

evidence available as to what those causes consist 

of and how those causes may best be addressed. 

However, tackling the causes of social problems is not 

incompatible with strong and effective sentencing 

to prevent and deter offending and re-offending 

and to better protect the community. Indeed, well 

directed sentencing reform can be supportive of other 

measures directed to the causes of social problems. 

3. The Victorian Auditor-General has highlighted 

the lack of capacity in Victorian prisons to meet 

the forecast growth in prisoner numbers and the 

Department of Justice has said that sentencing 

reform is the main driver of this growth. Given the high 

cost of building and operating prisons and the low 

success rate of prisons in stopping reoffending, is 

it time to consider a new approach, such as Justice 

Reinvestment which redirects prison spending to 

programs that address the underlying causes of crime 

and strengthen communities 

The Government has committed to provide an 

additional 500 prison places to provide for additional 

imprisonment that may result from its sentencing 

reforms. In addition, the Government is providing 

further places to make up for the shortfall left by 

the previous Labor governments. Contrary to the 

implication in the question, when offenders are behind 

bars, they are not free in the community committing 

further offences. However, as indicated above, having 

stronger and more effective sentences that better 

protect the community is not inconsistent with, and 

indeed may help to reinforce, actions to tackle the 

causes of problems that can lead to crime.


INSIGHT 8 

4. What is your view on problem-solving court 

programs, like the Neighbourhood Justice Centre (NJC) 

and the Court Integrated Services Program (CISP), that 

seek to address the underlying causes of crime 

Both the NJC and CISP have valuable roles: the NJC 

as an innovation hub to pioneer and pilot reforms that 

can then be applied more broadly across the court 

system, and CISP to work with courts to help offenders 

with serious problems get their lives back on track and 

avoid re-offending. 

5. Aboriginal Victorians are around 13 times more likely 

to be in prison in Victoria than non-Aboriginals. How do 

we address this 

The Government has recently entered into the third 

Aboriginal Justice Agreement, giving effect to a 

partnership between the Government and Koori 

communities to take a wide range of actions that will 

help reduce involvement of Koori people with the justice 

system both as offenders and as victims. This is part of 

a broader Victorian Government commitment through 

the Victorian Aboriginal Affairs Framework to continue 

to tackle a wide range of longstanding problems 

faced by Koori people. In addition, the Government’s 

continued engagement with Indigenous communities 

and successful record in negotiating good outcomes 

to native title claims through the Traditional Owner 

Settlement Act is strengthening economic and social 

opportunities for Indigenous communities. 

6. Do you agree that children (under 18) who offend 

should not be placed in an adult prison and if so, how 

do we stop this practice in Victoria 

The Children, Youth and Families Act allows 

the independent Youth Parole Board to transfer 

young offenders, over 16, to adult prison in some 

circumstances. Transfers are only made, as a last 

resort, when highly violent and aggressive behaviour 

is unmanageable within the existing Youth Justice 

infrastructure. Work to reduce the need for transfers to 

adult prison is ongoing. 

7. Last year, the Government reaffirmed its 

commitment to implement the Ombudsman’s 

recommendation to establish an independent agency 

to manage, collate and disseminate Victorian crime 

statistics. When will this agency be established 

Funding to establish a crime statistics agency was 

provided in this year’s State Budget. 

8. Access to justice in Victoria is not only a socioeconomic 

issue, but geographic, with young people 

in rural and regional Victoria often being locked up 

in police cells or prisons simply because there’s no 

access to bail support or remand. How should we 

address that inequity 

I understand that the Central After Hours and Bail 

Placement Service has responded to all requests from 

police for the provision of support for young people 

being considered for remand outside business hours. 

9. Youth Parole Board figures show that 38 per cent 

of young people who were in custody in Victoria 

in October 2011 had previous Child Protection 

involvement and 65 per cent were victims of abuse, 

trauma or neglect prior to incarceration. How do we 

break that nexus 

Since coming to office, the Government has had a key 

focus on improving the lives of Victoria’s vulnerable 

children, particularly those in the child protection 

system. We initiated the Cummins inquiry 1 and have 

made significant additional funding commitments in 

our first three state budgets. 

The Government has recently released a whole-ofgovernment 

vulnerable children strategy — Vulnerable 

Children — Our Shared Responsibility. This strategy 

will drive broad-based change across government and 

the community sector over the next decade, with the 

specific goals of preventing abuse and neglect, acting 

earlier when children are vulnerable, and improving 

outcomes for children in state care. 

10. Sentencing reforms such as mandatory minimum 

jail terms and baseline sentences will increase prison 

terms and reduce the ability of courts to ensure that 

the punishment fits the crime. How do you reconcile 

these changes with research showing that when the 

public has the same facts about a crime as a court, on 

average they agree with the court’s sentence 

Determining the law specifying the sentence levels 

for various crimes is the responsibility of Parliament 

on behalf of the community. That law is then applied 

to individual cases by the courts in accordance with 

the law. Baseline sentences, under which Parliament 

will set the median non-parole period for specified 

offences, will enable the community, through 

Parliament, to have a greater say about the general 

level of sentences that should apply for such offences, 

rather than specifying only the maximum sentence 

available for such offences.


INSIGHT 8 

Statutory minimum sentences for gross violence send 

a very clear message to potential offenders that the 

community will not tolerate crimes of that nature and 

that those who commit them can expect to go to jail for 

at least four years unless there is a particular special 

reason to the contrary as set out in the legislation. 

While they are behind bars, those sentenced to at least 

four years’ jail for an offence that is gross both in its 

degree of violence and its degree of culpability are not 

able to inflict further crime on the community. 

While, as one would expect, there is likely to be a 

higher correlation between the public’s view and 

the court’s view about sentencing in a particular 

case when members of the public have access to 

fuller facts about the case, I do not consider that the 

research of which I am aware establishes the sweeping 

proposition set out in the question. I consider there are 

a number of areas in which both public opinion and 

expert opinion rightly considers that the sentences 

resulting from the current law are, either generally or in 

an appreciable number of individual cases, inadequate 

in their protection of the community. The Government’s 

approach to sentencing has involved, and will continue 

to involve, identifying and targeting sentencing reforms 

to address those areas of inadequacy. 

11. Victorians are being issued with more fines and for 

higher amounts. Should you be sent to jail if you can’t 

afford to pay your fines 

The Government is moving to introduce wide-ranging 

reforms to Victoria’s fines and infringement systems, 

so that those who wilfully seek to avoid paying can 

be better brought to account, while those who incur 

large numbers of fines or infringements as a result of 

mental illness or other genuine reason can have their 

situation recognised and addressed more quickly. One 

element of those reforms is that it will be clear that jail 

will apply only for culpability in failing to pay or to make 

arrangements to pay, not for simply being unable to 

afford to pay. 

12. Is the current level of access to legal assistance for 

Victorians acceptable If not, how should we improve 

access to legal help for Victorians who can’t afford to 

pay for a lawyer 

The Victorian Government is providing record levels of 

funding for legal aid and other legal assistance, and 

Victoria Legal Aid is doing good work to ensure that 

funding is spent wisely and effectively. Legal help for 

Victorians would be improved if the Commonwealth 

Government increased its contribution to legal aid 

funding. As has been pointed out by parties including 

the previous Victorian Labor Government and family 

violence organisations, lack of Commonwealth funding 

for family law matters has significant consequences 

for the legal aid budget and for the numbers of family 

violence and child protection cases coming before 

State courts. 

13. VCOSS welcomed the Government’s discussion 

paper on diversion for young people. What are your 

views on diverting young people who offend away from 

formal criminal justice processes 

Providing young offenders with opportunities such 

as diversion to learn from their mistakes and address 

the underlying issues that have led to their offending 

can divert them from further and more serious 

crimes and from becoming caught up in the criminal 

justice system. 

14. In the Insight tradition, what books are by your bed 

Samuel Pepys Diary 

Kevin Andrews Maybe, I Do 

Richard Langworth (ed) Churchill In His Own Words 

1. The Protecting Victoria’s Vulnerable Children Inquiry, chaired by former Victorian 

Supreme Court Judge Philip Cummins, was established to investigate systemic 

problems in Victoria’s child protection system and recommend better ways to 

protect and support vulnerable young Victorians. Its January 2012 report is 

available at http://www.childprotectioninquiry.vic.gov.au/report-pvvc-inquiry.html


PROFESSOR ARIE FREIBERG 

INSIGHT 8 

STATISTICS, CRIME AND POLITICS 

After decades of advocacy, the Victorian Government 

announced in its May Budget funding for the 

establishment of a ‘crime statistics agency’. Emeritus 

Professor Arie Freiberg explains why such a body is so 

important to a system of justice, and what it should do. 

It is probably not widely known that 2013 is the 

International Year of Statistics. This year is intended 

to be a worldwide celebration of the contribution that 

statistics make to society, from predicting elections to 

understanding cricket matches to providing information 

about every aspect of public and private life. 

Statistics about the operation of the criminal justice 

system are crucial to an understanding of what is 

happening around us. Depending upon our sources of 

information we might be fearful or comfortable about 

the amount of crime in the community, about how many 

people are detected committing crimes, who they are, 

what they might do in the future, what happens to them 

if they are caught, and what happens to them after they 

are prosecuted, convicted and sentenced. 

Too often the information people obtain about the 

criminal justice system is partial, incomplete or 

inaccurate but, regularly, decisions are made on the 

basis of such information. When decisions are made 

by policy makers and governments on the basis of 

invalid or unreliable data, it is likely that they will be 

ineffective or even counter-productive. 

‘Lies, damn lies and statistics’ 

Earlier this year the former Victorian Premier Ted Baillieu, 

in launching a campaign to recruit more Protective 

Service Officers (PSOs), said that they had been well 

received and ‘reduced the crime rate around those 

stations’. 1 When pressed as to whether there were any 

statistics to back up his claim, he said that there was 

anecdotal evidence to that effect and that he was sure 

that the statistics were there. They were not produced. 

Prior to the 2010 state election there was considerable 

controversy about the accuracy of police crime statistics. 

Criticisms of the statistics released by the police, and 

their timing, contributed to the subsequent resignation of 

then Police Chief Commissioner Simon Overland. 

In March 2009, the Ombudsman published a critical 

report on Crime Statistics and Police Numbers. The 

report was in response to the then Opposition Leader, Mr 

Baillieu, who had complained that crime statistics and/or 

police numbers may have been subject to manipulation. 

Although the Ombudsman did not find evidence that 

crime statistics had been falsified, he identified a number 

of problems regarding their accuracy. 

In May 2011 the Office of Police Integrity tabled a 

critical report on its investigation into Victoria Police 

crime records and statistical reporting (Report of 

Investigation into Victoria Police Crime Records and 

Statistical Reporting) and in June 2011 another report 

by the Ombudsman was critical of police statistics 

and recommended, again, the establishment of 

an independent agency to manage, collate and 

disseminate crime statistics (Investigation into an 

Allegation about Victoria Police Crime Statistics). 

These were just the latest in a long line of reports 

and investigations, dating back to the 1990s, which 

have all come to the same conclusion: Victoria 

needs an independent bureau of crime statistics 

and research, similar to those that exist in other 

jurisdictions. The most successful of such bodies is 

the New South Wales Bureau of Crime Statistics and 

Research. Although it is not an independent statutory 

body, as is the Australian Bureau of Statistics, but 

operates as a statistical and research agency within 

the Department of Attorney-General and Justice, 

it has been functionally independent due to the 

professional and astute leadership of its long-time 

director, Dr Don Weatherburn. 

1. Transcript from the media conference accessed on 22 February 2013 at 

http://www.premier.vic.gov.au/media-centre/transcripts/5966-full-transcriptof-media-conference-by-premier-ted-baillieu-and-victoria-police-assistantcommissioner-chris-oneil-20-january-2013.html


INSIGHT 8 

Statistics can provide the basis for developing evidencebased 

policies which can inform and underpin decisionmaking. 

Too often, policy decisions are made either without 

evidence, or the evidence is distorted so that it becomes 

policy-based evidence instead. 

Costs no barrier to truth 

Why have we waited so long in Victoria for the prospect 

of an independent bureau of crime statistics Certainly, 

cost cannot be an issue, particularly compared, say, 

to the $212 million budgeted for the PSOs, whose 

efficacy in reducing crime is open to doubt and whose 

role is probably intended to address the fear of crime 

as much as crime itself. The New South Wales Bureau 

is estimated to cost around $3 million per year. The 

Victoria Sentencing Advisory Council, an independent 

statutory agency which provides information about 

sentencing trends, patterns and practices, costs less 

than $2 million per year. More likely the reluctance of 

governments of either political persuasion to establish 

a bureau in the past has stemmed from the general 

reluctance of governments to lose control of sources of 

information that might be embarrassing, discomforting 

or politically inopportune. But when Victoria Police, 

for long the keeper of crime statistics, agrees that an 

independent bureau is a good idea, then clearly the 

time was ripe to change the institutional 2 arrangements 

that exist in Victoria. 

The 2013-14 State Budget allocated $8.4 million over 

four years ($2.1 million per year) to establish the new 

agency. No details were provided of the scope of the 

agency’s activities, its staffing profile, accountability 

structure or its commencement date. 

The role and value of evidence 

Why are statistics important Why should the world 

celebrate them 

First, as the Australian Bureau of Statistics, the premier 

statistical body in Australia, states on its website: 

statistics ‘form the basis of our democracy and provide 

us with the necessary knowledge to assess the health 

and progress of our society’. They are fundamental to 

the task of holding governments to account. Statistics 

must be public, accessible, valid and reliable and 

governments owe it to their citizens to provide this 

information to enable them to understand and evaluate 

government policies. 

Secondly, statistics can provide the basis for 

developing evidence-based policies which can inform 

and underpin decision-making. Too often, policy 

decisions are made either without evidence, or the 

evidence is distorted so that it becomes policy-based 

evidence instead. 

Crime and justice are sensitive, emotive and 

controversial issues and decisions made about the 

criminal justice system affect the rights and liberties 

of offenders and victims. Poor decisions can have 

serious and adverse consequences for both the 

individuals affected and society at large. 

Thirdly, because there is so much misinformation 

available about the criminal justice system, some of 

it intentionally so and propagated by various media 

outlets, myths and misconceptions about the operation 

of the justice system abound. Decisions are too 

often made on the basis of incorrect information and 

anecdotes: the plural of anecdotes is not ‘research’. 

In the recent publication by the NSW Bureau of Crime 

Statistics and Research on the Uses and Abuses of 

Crime Statistics (Crime and Justice Bulletin, No. 153, 

2011), its Director Dr Weatherburn wrote: 

We have to make judgments about the 

prevalence of crime, about trends in crime, about 

the distribution of crime and about the impact of 

Government efforts to prevent and control crime. 

We cannot base these judgments on personal 

experience and anecdote. They have to be 

based on statistical information… 

Criminal justice information in Victoria comes from a 

variety of sources: crime statistics from the Victoria 

Police; prosecution statistics from the annual reports 

of the Director of Public Prosecutions; court statistics 

from the individual annual reports of the Children’s 

Court, the Magistrates’ Court, the County Court and 

the Supreme Court; sentencing statistics from these 

courts and from the Sentencing Advisory Council; 

limited correctional statistics from the Department of 

Justice; and parole statistics from the Annual Report 

2. Victoria Police Statement, Herald Sun, 26 July 2012 available at http://www. 

heraldsun.com.au/news/victoria/full-statement-from-victoria-police-on-triple-0- 

reports-and-police-statistics/story-e6frf7kx-1226435145300


INSIGHT 8 

of the Parole Board. Various versions of these data 

are collected and published regularly by the Australian 

Bureau of Statistics, which provides a national 

perspective on the criminal justice system. Each year 

the Productivity Commission publishes a report on 

government services which examines and compares 

the operation of police, court, prosecution and 

correctional services. 

The national reports are useful but are constrained by 

problems of achieving uniformity across jurisdictions 

and consistency between data bases. They tend to be 

descriptive rather than analytical. 

The role for statistics and research 

What then might we expect or need from a new ‘crime 

statistics agency’ 

At the very least, it should provide regular, accurate and 

independently verified data about crime and criminal 

justice generally in Victoria, not just statistics about 

the number of crimes committed or reported. These 

statistics should be published at predictable times and 

not subject to the vagaries of the political process. 

Secondly, it should provide statistics that are easily 

accessible to the public. 

Thirdly, it should provide analyses of the statistics 

so that the community can know not only what has 

happened, but why. 

Fourthly, a bureau should conduct research on 

crime and criminal justice issues to evaluate projects, 

programs and policies as well as various hypotheses 

and assumptions about crime and justice. 

Finally, a bureau should provide a resource for other 

government departments or agencies to assist them 

with their data collection and with their policy and 

evaluative research. 

Public confidence is central to good government and 

public confidence can only be maintained if information 

is free, open and comprehensive. Although provision 

of such information by an independent bureau of 

crime statistics and research will not guarantee that it 

will not be abused, distorted, selectively reported or 

misrepresented by the media, police, politicians and 

others, its publication will at least ensure that the public 

can have access to reports and will be able to make up 

its own mind about their meaning. 

Conclusion 

The announcement of a new crime statistics agency 

is to be welcomed. It has been much anticipated and 

is well overdue. What is awaited now are the details of 

how it will work, who will run it and, most importantly, 

how independent it will be. 

Arie Freiberg is Emeritus Professor at the Faculty of Law, 

Monash University, and Chair of the Victorian Sentencing 

Advisory Council and the Tasmanian Sentencing 

Advisory Council. He writes here in his personal capacity.


JUDGE PAUL GRANT 

INSIGHT 8 

Youth justice: getting 

the early years right 

Victoria’s approach to juvenile justice has resulted in the 

lowest rate of young people in detention in Australia and 

the second lowest rate of youth offenders. However, says 

former Children’s Court Judge Paul Grant, it needs better 

court-based diversion, better bail support, and more Koori 

Children’s Courts if it is deliver real justice to young people 

– many of whom are victims themselves. 

Victoria has a youth justice system that is well regarded 

throughout Australia. There is much to be proud of. 

On the other hand, we know that many of the young 

people placed on supervision or in detention have 

common characteristics that arise from their difficult life 

circumstances. Babies and children who have suffered 

abuse and neglect are at increased risk in later life of 

involvement in offending and the consequent orders that 

flow out of that. Good youth justice outcomes require us 

to get the early years right. All the research shows that 

intervention in the early years will be the most effective way 

of preventing the sort of progression into the youth justice 

system that we see for many young people who have 

suffered trauma and abuse. 

This article looks at the main focus areas of youth justice in 

Victoria, and how they should be strengthened to stop the 

cycle into adult prisons. 

DIVERSION 

Any discussion about young people and the criminal justice 

system will commence by acknowledging the importance 

of diversion. The benefits to young people (and to the 

community) in diverting young people away from court is 

universally recognised within youth justice systems. 

Diversion programs in Victoria operate as either pre-court 

diversion (police cautioning) or court programs. Both offer 

first time or minor offenders the opportunity to avoid a 

finding of guilt and a criminal record. In court diversion, the 

young person will frequently engage with a program that 

addresses particular problems that lie behind his or her 

offending behaviour. This has benefits for the young person, 

their family and the wider community. 

The police cautioning program is regarded as an effective 

first intervention for many young people involved in a breach 

of the law. 

Victoria’s court-based diversion, however, is ad hoc, poorly 

funded and geographically limited. The unavailability of 

diversion for some young Victorians is a significant access 

to justice issue. When you consider that the Magistrates’ 

Court has a fully supported Criminal Justice Diversion 

Program for adults, the argument for establishing such a 

program in the Children’s Court is unanswerable. 

DATA ON OFFENDING 

There are about 550,000 young people in Victoria aged 10 

to 17 inclusive. 

The report of the Sentencing Advisory Council (April 2012) 

confirms that in 2009-10: 

• 14,556 young people were processed by the police 

• 5,957 young people were diverted or not proceeded against 

• 7,064 cases were proved in the court. 

Seventy per cent of the young people who had charges 

proved were sentenced to undertakings, good behaviour 

bonds or fines, indicating they committed minor offences or 

were regarded as good prospects for rehabilitation and did not 

require ongoing support and supervision in the community.


INSIGHT 8 

Victoria’s court-based diversion is ad hoc, poorly funded and 

geographically limited. The unavailability of diversion for some 

young Victorians is a significant access to justice issue. 

These facts confirm that: 

• only a small percentage of young people actually come to 

the attention of law enforcement authorities and fewer still 

require formal intervention in their lives, and 

• the vast majority of young people detected in criminal 

behaviour do not constitute a risk to the safety and welfare 

of our community. 

In Victoria, a small group of young offenders do require 

formal intervention in their lives. 

In 2009-10, 1,556 young people received supervisory 

orders, namely probation, youth supervision or youth 

attendance orders. The Youth Justice Division of the 

Department of Human Services administers these orders. 

The orders offer graduated supervision with young people 

engaged with appropriate supports and services to address 

the problems behind the offending behaviour. 

In the same year, a small number of offenders (172) received 

detention orders. 

The most recent report of the Youth Parole Board 1 provided 

a snapshot of those young people in youth detention: 

• 38 per cent had previous child protection involvement 

• 18 per cent had current child protection involvement 

• 65 per cent were victims of abuse, trauma or neglect prior 

to incarceration 

• 68 per cent had been suspended or expelled from school 

• 40 per cent presented with mental health issues 

• 22 per cent were registered with Disability Services 

• 84 per cent of cases had alcohol or drugs related to 

the offending 

• 10 per cent were parents. 

The figures confirm that the majority of young people 

in detention come from backgrounds of abuse and 

disadvantage. In the words of the Chair of the Youth Parole 

Board, young offenders are ‘very often the product of, and 

still suffer from, a damaged and unprotected childhood’. 1 

These young people need intensive therapeutic 

interventions to help them rebuild their fractured lives. 

JURISDICTION AND SENTENCING 

All children and young people charged by police with criminal 

offences appear in the Children’s Court Criminal Division. 

To come within that jurisdiction a young person has to 

be aged 10 or over and under 18 when the offence is 

committed (providing the young person is charged before 

his or her 19th birthday). 

The sentencing principles that apply in the Children’s Court 

are different from those that apply in adult courts. When 

dealing with an adult, a judge or magistrate is required 

to balance principles of specific and general deterrence, 

punishment, denunciation, protection of the community 

and rehabilitation. Sentencing in the Children’s Court, 

however, focuses on supporting the young person within 

the community wherever practicable and appropriate. The 

emphasis is on the rehabilitation of the young offender. 

Section 362 of the Children, Youth and Families Act 2005 

states that in determining which sentence to impose on a 

child, the Court must, as far as practicable, have regard to: 

• the need to strengthen and preserve family ties 

• the desirability of allowing the child to live at home 

• the desirability of allowing the young person’s education, 

training or employment to continue without interruption 

or disturbance 

• the need to minimise stigma 

• the suitability of the sentence to the young person 

• if appropriate, making a young person understand his/her 

responsibility for the offending behaviour, and 

• if appropriate, protection of the community. 

The focus on rehabilitation is consistent with wellestablished 

legal principle. For example, in a 2007 Supreme 

Court case, the Judge gave two reasons for describing 

youth as a mitigating consideration of the first importance. 

1. Department of Human Services, Youth Parole Board and Youth Residential Board Victoria 

Annual Report 2009-10, Melbourne, 2010.


INSIGHT 8 

The figures confirm that the majority of young people in 

detention come from backgrounds of abuse and disadvantage. 

These young people need intensive therapeutic interventions to 

help them rebuild their fractured lives. 

The first acknowledged that young people, while being 

criminally responsible, lack the degree of insight, judgment 

and self-control possessed by an adult. The second 

recognised that the community has a very strong interest 

in the rehabilitation of all offenders, but especially young 

offenders, which, in the case of the latter, is one of the great 

objectives of the criminal law. 

The importance of the principle of rehabilitation often 

results in the Children’s Court making orders that would 

be, in the words of a former Supreme Court Judge, entirely 

inappropriate in the case of older and presumably more 

mature individuals. 

The Victorian approach, with its focus on the rehabilitation 

of the young offender, the emphasis on graduated and 

proportional responses and the use of detention as the 

sentence of last resort, is consistent with the principles 

enunciated in the Convention on the Rights of the Child 

and other associated human rights covenants. It has 

also resulted in the lowest rate of young people under 

supervision and the lowest rate of young people in 

detention in Australia. 

Importantly, according to the Australian Bureau of Statistics, 

Victoria has the second lowest youth offender rate of all 

states and territories. 

YOUNG PEOPLE AND REMAND 

In addition to those young people sentenced to detention, 

some young people spend time remanded in custody. 

These young people usually live in a chaotic world 

lacking structure and support and are involved in serious 

offending. In many cases bail will be refused because the 

young person presents as “an unacceptable risk to commit 

further offences if released on bail”. Where a program of 

intensive support and supervision in the community is 

available, many of these young people can be released on 

bail with efforts made to address the problems behind the 

offending behaviour. 

The Victorian Law Reform Commission, in its 2007 Report 

on the Bail Act, recommended the funding of an intensive 

bail support program in the Children’s Court. The report 

noted that such a program is available for adults appearing 

in the Magistrates’ Court but regrettably, not available for 

young people appearing in the Children’s Court. 

Intensive bail support is now available for those young 

people who live in metropolitan Melbourne. It needs to be 

available to young people in rural and regional Victoria. 

ABORIGINAL OVER-REPRESENTATION 

A major challenge for the youth justice system is the 

significant rate of over-representation of young Aboriginal 

boys and girls. 

Koori courts developed out of Aboriginal community 

demands for a justice process that was meaningful for the 

offender and for the community. Over the last 10 years, a 

number of Koori courts have been established. Currently, 

there are Children’s Koori Courts at Melbourne, Mildura, 

Warrnambool, Latrobe Valley and Bairnsdale. There are 

adult Koori Courts at all those venues and, in addition, at 

Swan Hill and Shepparton. The Children’s Court should be 

supported to establish Children’s Koori courts at these two 

venues. The evidence of the success of Koori courts comes 

from positive evaluations of both the adult and Children’s 

Courts and by the strong level of Aboriginal community 

support. Koori Courts are one part of a comprehensive 

strategy for addressing over-representation. 

CONCLUSION 

It is important that our community understands that 

Victoria’s approach to youth justice is highly regarded 

and produces good outcomes. However, there are areas 

for improvement. This article identifies some of them. 

It also reminds us that those children who come from 

circumstances of disadvantage are heavily over-represented 

in the system. If we want to tackle that issue we will need 

to tackle the causes of disadvantage. At the very least we 

need to: 

• provide strong support to families in need to try and stop 

them becoming families in crisis 

• maintain a child’s engagement in education (or 

employment) 

• provide appropriate support to at risk vulnerable children. 

If we do that work really well, we will have fewer children in 

our criminal courts. 

Judge Paul Grant was President of the Children’s Court of 

Victoria from 2006-2013.


HON. PEGGY FULTON HORA 

INSIGHT 8 

Tough on crime 

is not smart on crime 

United States Judge Peggy Hora has seen the 

impact of ‘tough on crime’ policies in California, 

where overcrowding of prisons has been found to 

breach the Constitution. Such policies also breach 

fundamentals of justice and rehabilitation, she 

says, noting that the most effective criminal justice 

initiative in decades in Australia have been drug 

treatment courts. 

The shibboleth ‘tough on crime’ is one politicians 

find quite appealing. The problem is that being 

tough – without being smart and effective – makes 

the community less safe and also costs money 

better spent on other services that have been 

squeezed dry by the global financial crisis. 

California, for example, enacted the toughest 

‘three strikes’ law in the United States. Not only 

did juvenile offences count as strikes but the third 

strike could be a conviction of any felony. For 

instance, a 17-year-old who stole bicycles from 

two attached garages and at age 18 stole a candy 

bar could be sentenced to life in prison. How 

could that be Felony strikes under that state’s 

law included not only violent crimes but ‘serious’ 

offences as well such as residential burglaries. 

Once convicted of a theft crime for which jail time 

was imposed, any future theft can be charged 

as a felony. Thus, the juvenile convictions for two 

residential burglaries, serious felonies that were 

strikes, and the theft of the candy bar was a felony 

so the Three Strikes law applied. 

The California Supreme Court upheld such 

sentences for an offender who stole a slice of 

pizza and another who stole a DVD as the third 

strike. It was a distraught father whose daughter 

was murdered by a recent parolee who led the 

fight to enact the Three Strikes law. He also led the 

fight to modify it last year when he learned of the 

incredible human and economic cost the law had 

brought. Even the prison guards’ union supported 

the modification. 

When prisons became so overcrowded in 

California that inmates were triple bunked in 

cafeterias, lawsuits challenging such conditions 

were brought against the authorities. Another 

major lawsuit challenged the lack of mental health 

treatment in custody. Thirty percent of California’s 

prison population of 119,542 (about the population 

of Darwin) has a mental illness. 1 Despite spending 

upwards of $8.6 billion on prisons every year, 

the lack of services got so bad that two years 

ago the US Supreme Court, hardly a bastion of 

soft-on-crime adherents, found the inhumane 

conditions constituted ‘cruel and unusual 

punishment’ in violation of the 8th Amendment 

of the US Constitution. The District Court judge’s 

order requiring better services and the release of 

30,000 prisoners to ease overcrowding must be 

complied with by December 2013. Failure to do 

so will subject the governor and other authorities 

‘individually and collectively’ to a finding of 

contempt of court. 2 

‘CATCH AND RELEASE’ 

In South Australia the ‘tough on crime’ rhetoric 

reached a crescendo when then Treasurer and 

Deputy Premier Kevin Foley said the way to 

address jail reform was to ‘rack ‘em, pack ‘em 

and stack ‘em’ in prison. He said he and his party 

were ‘clearly walking the walk on law and order.’ 3 

The general public’s support for such rhetoric is 

waning in Australia and abroad. The proportion of 

Australians who agree that stiffer sentences are 

needed has gradually declined. 4 Few offenders 

receive a life term; most serve their sentence and 

return to the community. Do they return ready 

to reintegrate and become productive Alas 

no, and the community knows it. ‘The majority 

of Australians have little or no confidence in the 

prison system to rehabilitate prisoners (88 per 

cent), as a form of punishment (59 per cent) or in 

teaching prisoners skills (64 per cent).’ 5


INSIGHT 8 

The current criminal justice system of ‘catch 

and release’ is expensive and ineffective. While 

incarceration temporarily contains the problem 

it does not act as a general deterrent nor does 

it guarantee a crime-free life for those who 

experience it. More than one third (39 per cent) of 

Australian prisoners are re-arrested and returned 

to correctional services within two years of their 

release. 6,7 

There are many strategies to address this problem, 

from reduction of the prison population through 

community corrections to justice reinvestment 

initiatives. 8 It is clear that people who end up 

in prison have social deficits that must be 

addressed if there is a hope of keeping them out 

of custody. Australian prisoners are economically 

disadvantaged, stigmatised, experience social 

exclusion and have poor physical and mental 

health. These problems are exacerbated when the 

offender is Aboriginal. 9 

SUBSTANCE ABUSE AND OFFENDING 

Alcohol and other drugs it seems fuel crime 

worldwide. The tangible costs attributable to 

alcohol and illicit drugs in Australia each year are 

around $19 billion. 10 According to the Australian 

Institute of Criminology, a number of recent 

Australian studies have found strong links between 

illicit drug use and offending among both adult 

and juvenile prisoners. 11 In New South Wales, for 

example, burglars using heroin commit a median 

of 13 burglaries per month. 12 Although drug users 

constitute two thirds of the prison population, 13 

few prisons adequately address dependence. 

One glowing exception is the Compulsory Drug 

Treatment Correctional Centre in Sydney. 14 In 2006 

the NSW Drug Court, Justice Health Services and 

the Department of Corrective Services developed 

the first penal institution in Australia focused on 

treatment and recovery. 

However, in-custody treatment is just a first 

step. While treatment can begin in prison, social 

reintegration into the community to which 

the offender returns is a must. A supportive 

environment with clean and sober housing, 

outpatient chemical dependence treatment and 

other ancillary services are necessary if these 

persons are to stay out of custody. Upon exit 

from prison there should be a reintegration plan, 

agreed to by the offender, which addresses 

these concerns. 

The most effective criminal justice initiative in 

decades, drug treatment courts (DTC), began in 

Australia in 1999. The first drug treatment court 

started and is still going strong in Parramatta, 

NSW. Two other sites in that state also have 

drug treatment courts. Lawyers in Wollongong 

are currently pushing for a fourth NSW court to 

be established there. 15 Adelaide opened its first 

Drug Court in 2000. All but one state or territory 

has at least one drug court. There are other 

‘solution focused’ courts in Australia that concern 

mental health, Aboriginal sentencing issues (the 

Nunga Court in Adelaide and the Koori Court in 

Melbourne), youth and, soon, child abuse and 

neglect issues, with a family drug treatment 

court pilot planned for Melbourne from 2014. The 

Victorian Association of Drunk and Drug Driver 

Services held a conference last year to look at the 

development of an impaired driving court initiative.


INSIGHT 8 

In South Australia the ‘tough on crime’ 

rhetoric reached a crescendo when then 

Treasurer and Deputy Premier Kevin Foley said 

the way to address jail reform was to ‘rack 

‘em, pack ‘em and stack ‘em’ in prison. 

SPECIALIST COURTS 

A drug treatment court focuses on the alcohol and 

other drug dependence that acts as a catalyst for 

crime. The offender is offered the opportunity to 

participate in substance abuse treatment instead of 

going to prison. Over 20 years of research have shown 

that drug treatment courts not only reduce crime by 

as much as 35 per cent but cost less than traditional 

court processes as well. 16 The drug treatment 

court judge is the head of a team consisting of the 

prosecutor, defence counsel, treatment providers, 

community corrections officer, coordinator and 

case manager. Some teams include police, housing 

specialists, mental health care professionals and 

others representing services the offender may need. 

Working in a non-adversarial context, every team 

member weighs in on recommended incentives and 

sanctions for compliance or non-compliance with the 

participant’s treatment plan. The judge makes the final 

decision and engages with the offender to increase his 

or her internal motivation to do well. This matrix forces 

all members of the team to step outside their traditional 

role, an uncomfortable situation for some. There are 

over 2,700 drug treatment courts in the US and similar 

entities in over 20 countries. New Zealand is one of 

the newest to come on line with two courts opening in 

Auckland in 2012. 

The United Nations Office on Drugs and Crime 

(ONODC) has been very supportive of drug treatment 

courts and has developed guidelines for their 

operation. These 12 guidelines (see breakout) mirror 

the Ten Key Components followed since 1994 in the 

US 17 plus add two additional ones. 

Twelve principles for court-directed treatment 

and rehabilitation programs 

1. The programs should integrate substance 

dependency treatment services with justice 

system case processing. 

2. A non-adversarial approach should be used, in 

this manner prosecution and defence lawyers 

promote public safety while protecting offenders’ 

due process rights. 

3. Eligible offenders should be identified early and 

promptly integrated into the program. 

4. The programs should ensure access to a 

continuum of substance dependency treatment 

and other rehabilitation services. 

5. Compliance should be monitored objectively 

through frequent substance abuse testing. 

6. A coordinated strategy should govern responses 

of the court to program non-compliance (and 

compliance) by offenders. 

7. Ongoing judicial interaction with each offender in 

a program is essential. 

8. Monitoring and evaluation should be carried out 

to measure the achievement of program goals 

and gauge effectiveness. 

9. There should be continuing interdisciplinary 

education to promote effective planning, 

implementation and operation of these courtdirected 

programs. 

10. Partnerships should be forged among courts 

directing treatment programs, public agencies, 

and community-based organisations in order to 

generate local support and enhance program 

effectiveness. 

11. Ongoing case management should include 

the social support necessary to achieve social 

reintegration. 

12. There should be appropriate flexibility in 

adjusting program content, including incentives 

and sanctions, to achieve better program 

results with particular groups, such as women, 

indigenous people and minority ethnic groups. 

Source: Informal Expert Working Group on Drug Treatment 

Courts, United Nations Office on Drugs and Crime, 1999.


INSIGHT 8 

Although most drug treatment courts in Australia are 

doing well, and new ones are opening, there have 

been two major setbacks which will, hopefully, not 

become a trend. The first came in July 2012 when, 

without notice, the NSW Government closed the 

state’s Youth Drug and Alcohol Court, leaving the legal 

community and the magistrate who presided over it 

angry and baffled. ‘About 20, 21 young people a year 

graduated from the program. I know for a fact that 

many of them are now working productively, they’re 

good members of the society,’ said Magistrate Hillary 

Hannam. ‘A number of them even say, in the feedback 

I get to this day, that it was drug court that literally 

saved their lives.’ 18 The newly-elected Government 

said it was closed as an austerity measure. 

Smart on crime, not tough on crime, saves 

money, reduces crime and saves lives. 

The second blow to solution-focused courts in 

Australia came in Queensland in September 2012. The 

Murri Court serving Indigenous offenders, Special 

Circumstances and Drug courts were all closed, again 

purportedly for fiscal reasons. As the Queensland Law 

Society president pointed out, however, instead of 

costing the Government, the Drug Court alone saved 

over $6 million a year. 19 

Australia has adopted international best practices by 

promoting drug treatment courts for alcohol and other 

drug dependent offenders. Although there have been 

some steps backwards, it appears that the remainder 

of the courts are moving forward in the right direction. 

Smart on crime, not tough on crime, saves money, 

reduces crime and saves lives. 

1. Editorial, ‘Mental Illness in California Prisons,’ The New York Times, 10 April, 2013. 

2. ‘California governor has 20 days to fix overcrowded prisons or be put on trial,’ RT, 

12 April 2013, available at http://rt.com/usa/prisons-state-court-california-775/ 

3. K Wheatly, ‘Packing our prisons just doesn’t stack up,’ The Advertiser, 8 (May, 2008. 

4. L Roberts, D Indermaur, What Australians think about crime and justice: results 

from the 2007 Survey of Social Attitudes, Australian Institute of Criminology, 2007. 

5. Ibid. 

6. Productivity Commission, 2010 Report on Government Services, Volume 1, 

Commonwealth of Australia, 2010. 

7. In the Northern Territory the rate is 47.3 per cent, ibid. 

8. A colloquium titled “Is Justice Reinvestment needed in Australia” took place 

at Australia National University in Aug 2012; The Australian Senate’s legal and 

Constitutional Affairs Committees is due to report later in June on the ‘value of a 

justice reinvestment approach to criminal justice in Australia’. 

9. Australian Institute of Health and Welfare, Australia’s Health 2008, Canberra. 

10. DJ Collins, HM Lapsley, The costs of tobacco, alcohol and illicit drug abuse to 

Australian society in 2004-05, Commonwealth of Australia, 2006. 

11. L Forsythe, Measuring mental health in criminology research: Lessons from the 

Drug Use Monitoring in Australia program, Technical and background paper 

series no.54, Australian Institute of Criminology, 2013. 

12. RJ Stevenson & LMV Forsythe, The stolen goods market in New South Wales: 

An interview study with imprisoned burglars, New South Wales Bureau of Crime 

Statistics and Research, 1998. 

13. J Payne, A Gaffney, How much crime is drug or alcohol related Self-reported 

attributions of police detainees, Australian Institute of Criminology, May 2012. 

14. A Birgden, ‘A compulsory drug treatment program for offenders in Australia: 

Therapeutic jurisprudence implications’, Australian Journal of Correctional Staff 

Development, 2010. 

15. E Spillett, ‘Lawyers push for drug court in Wollongong,’ Illawarra Mercury, 8 

April 2013. 

16. See, for example, Australian Institute of Criminology, New South Wales Drug 

Court Evaluation: Cost-Effectiveness, 2002. 

17. National Drug Court Resource Center, Defining Drug Courts: The Key Components, 

at http://www.ndcrc.org/content/defining-drug-courts-key-components 

18. A Harvey, ‘Anger as NSW axes youth drug court’, ABC News, July 4, 2012. 

19. T Moore, ‘Diversionary courts fall victim to funding cuts’, brisbanetimes.com, 

Sept. 13, 2012. 

Judge Hora retired from the California Superior Court 

after serving 21 years. She was one of the founders 

of the drug treatment court movement and is a global 

leader in justice reform. In 2009-2010 she was South 

Australia’s Thinker in Residence studying the justice 

system. Over 85 per cent of her recommendations 

were accepted by the Attorney General. Her report may 

be found at: http://www.thinkers.sa.gov.au/lib/pdf/hora/ 

smartjustice_lo.pdf


PROF CHRIS CUNNEEN 

INSIGHT 8 

Time to arrest rising 

Aboriginal prison rates 

Thanks in large part to the Victorian Aboriginal Justice 

Agreement, Victoria’s Aboriginal imprisonment rate remains 

lower than the national average. But, warns Professor Chris 

Cunneen, tougher penalties are having a disproportionate 

effect on Aboriginal Victorians and pushing up rates. 

I am not sure that Victorians would enjoy being compared 

with the Northern Territory in terms of prison policy 

backwardness. However they certainly have one thing 

in common: a dramatic race to the bottom in locking up 

more and more Aboriginal people. Between 2008 and 

2012 Aboriginal imprisonment rates rose by 34 per cent in 

the Northern Territory; in Victoria the rise was 43 per cent, 

with much of that occurring recently. In 2011-12 alone, the 

Victorian Aboriginal imprisonment rate rose by 26 per cent. 1 

In the Northern Territory, they can blame the ‘Intervention’ 2 

for these changes, but what is causing this dramatic shift in 

punitiveness in Victoria 

These changes represent a turn of events. Victoria had 

traditionally experienced relatively low rates of both 

Aboriginal and non-Aboriginal imprisonment; for decades 

they were half that of New South Wales. There are multiple 

layers to this story of change, and I want to try and unpack 

some of the salient features. Like most explanations, it 

will be partial and open to differing interpretations and 

emphasis. In the final section I want to shift the discussion 

away from imprisonment and towards some of the positive 

aspects of the relationship between Aboriginal people 

and the justice system, particularly through the Victorian 

Aboriginal Justice Agreement. 

Royal Commission 

It is important to begin this discussion with the 1987 Royal 

Commission into Aboriginal Deaths in Custody because 

of the wide acceptance of its 339 recommendations. A 

core finding was the need to reduce Aboriginal custody 

and imprisonment and there was optimism at the time 

that these changes would occur. However, over the last 

two decades, Aboriginal imprisonment rates have grown 

significantly rather than declined. Indeed, nationally, the 

rate of Aboriginal imprisonment doubled during the 1990s 

and 2000s; at the same time the non-Aboriginal rate was 

both significantly lower and increased at almost half the 

Aboriginal rate. 

At one level the changes in Victoria appear to reflect 

what is happening nationally. Yet the growth has been 

slower nationally than in Victoria. Between 2002 and 2012, 

Aboriginal imprisonment grew 52 per cent nationally, 

but 105 per cent in Victoria. Furthermore the growth in 

Aboriginal imprisonment rates has slowed nationally (9 per 

cent over the last five years), while Victoria is showing no 

signs of deceleration. 

Politics and policies 

We know that increasing imprisonment rates generally do 

not appear to be the result of increasing crime, but rather 

more frequent use of imprisonment for longer periods of 

time. Across Australia imprisonment rates have increased 

because of a range of factors, including: 

• changes in sentencing law and practice 

• restrictions on judicial discretion 

• changes to bail eligibility 

• changes in access to parole 

• increased post-release surveillance, and 

• judicial and political perception of the need for 

‘tougher’ penalties. 3 

The overall environment within which sentencing and 

punishment occurs has been one of constantly changing 

criminal law. One study tracked 230 major changes to law 

and order legislation in Australian states and territories over 

three and a half years, 4 while another 5 noted how rapidly 

bail legislation has changed in some jurisdictions, usually in 

response to a politically expedient incident. 

In Victoria average prison lengths increased by 19 per 

cent between 2001 and 2006 under the former Labor 

Government, and the remand population grew by 48 

per cent. 6 At the same time the Victorian crime rate was 

decreasing. 7 Overall the prison population went up by 11 per 

cent during this period. However, the increase in Aboriginal 

prisoners was much higher at 43 per cent. 8


INSIGHT 8 

We can expect imprisonment rates to continue to 

accelerate in Victoria under Coalition Government policies 

and we can expect them to have a disproportionate 

impact on Aboriginal people. 

It is not clear why changes in sentencing are specifically 

affecting Aboriginal people, however similar trends have 

been noted in other states. In New South Wales a study 

of the 48 per cent rise in the Aboriginal imprisonment rate 

from 2001–2008 found that 25 per cent of the increase 

was caused by more Aboriginal people being remanded in 

custody and for longer periods of time, and 75 per cent by 

more Aboriginal people being sentenced to imprisonment 

(rather than to a non-custodial sentencing option) and for 

longer periods of time. 9 None of the increase was a result of 

more Aboriginal people being convicted of a crime. In other 

words, the increase in imprisonment was not caused by 

increases in prosecutions. 

We can expect imprisonment rates to continue to 

accelerate in Victoria under policies being pursued by the 

Coalition Government, and we can expect them to have a 

disproportionate impact on Aboriginal people. Sentencing 

options for the courts have been reduced with the abolition 

of intensive corrections orders, community-based orders, 

home detention and combined custody and treatment 

orders. Parole options have been reduced with the 

abolition of home detention orders which were previously 

available to the Adult Parole Board. Judicial discretion is 

being curtailed with the introduction of statutory minimum 

sentences of four years’ imprisonment (without parole) for 

new offences related to ‘gross violence’. A new ‘community 

corrections order’ has been introduced which allows for a 

combination of imprisonment and the serving of part of the 

order in the community. All of these changes clearly are 

intended to increase the use and length of imprisonment. 

As the Smart Justice coalition has noted, ‘harsher 

sentencing will be the main driver of prison growth, not 

crime rates, which are falling’. 10 

Aboriginal Justice Agreement 

While this all shows the significant problem of increasing 

imprisonment rates in Victoria, it should also be 

acknowledged that the state still has an Aboriginal 

imprisonment rate lower than the national average and well 

below states like Western Australia. An important part of the 

explanation for this has been the Victorian Aboriginal Justice 

Agreement (VAJA). 11 

Victoria was one of the first states to establish such a 

justice agreement, which was the outcome of a negotiation 

process involving criminal justice agencies and Indigenous 

advisory bodies, particularly Aboriginal Justice Advisory 

Councils (AJACs). They attempted to address Aboriginal 

over-representation through establishing key principles, 

the identification of specific strategic areas (such as youth 

justice diversionary alternatives and the development of 

non-custodial sentencing options), plus specific initiatives 

within each strategic area. 

Nationally the VAJA has been the most effective agreement 

in providing for ongoing Aboriginal ownership of, and 

participation in, strategic policy development. 12 The first 

VAJA emphasised the importance of ongoing Aboriginal 

input. This was achieved by setting up the statewide 

Aboriginal Justice Forum and the Regional and Local 

Aboriginal Justice Advisory Committees (RAJACs and 

LAJACs) to work alongside government agencies in 

progressing the VAJA. It is also only one of two national 

justice agreements that have been independently evaluated 

and found to have significantly improved justice outcomes 

for Aboriginal people. 13 A number of important initiatives 

have been developed through the Agreement including the 

Koori Courts. 

Ultimately, it is by having government and Aboriginal 

communities being able to work together that will 

make efforts to address Aboriginal over-representation 

successful. The Victorian AJAC (established in 1993 and 

now decentralised into regional and local bodies) is the 

only advisory committee structure still in existence in 

Australia from the period immediately following the Royal 

Commission. This process has been enhanced in Victoria 

through the community-based peak coordinating body 

established under the VAJA, the Aboriginal Justice Forum. 

The VAJA meets the highest standards nationally in terms 

of Aboriginal participation, implementation, monitoring, and 

independent evaluation.


INSIGHT 8 

As a society we do better at keeping Aboriginal people 

in prison than in school or university. 

Conclusion 

We know the significant limitations of prison as a 

rehabilitative institution and crime control option. We also 

have sufficient information to make informed choices on the 

best results gained for public expenditure. Various Australian 

and international research has shown that reductions in 

long term unemployment, increased school and adult 

vocational education, stable accommodation, increased 

average weekly earnings and various treatment programs 

will reduce re-offending. 14 Yet we see the opposite occurring 

when it comes to Aboriginal people. The Aboriginal reimprisonment 

rate (58 per cent within 10 years) is much 

higher than the Aboriginal school retention rate from Year 

7 to Year 12 (46.5 per cent) and the Aboriginal university 

retention rate (which is below 50 per cent). 15 As a society 

we do better at keeping Aboriginal people in prison than in 

school or university. Nationally, Aboriginal men are more 

than twice as likely to be found in prison than in university. 16 

One of the alarming aspects in Victoria is that the rapid rise 

in imprisonment rates has been particularly concentrated 

among Aboriginal Victorians. While Aboriginal imprisonment 

rates rose by 43 per cent during the last five years, the 

comparable non-Aboriginal rate rose by a little over 6 

per cent. Whatever emphasis we might give to various 

changes occurring to prison policy, they are having a 

disproportionate impact on Aboriginal people. They will 

also undermine the significant efforts made in the Victorian 

Aboriginal Justice Agreement to reduce Aboriginal overrepresentation 

in the criminal justice system. Certainly if 

the imprisonment rates continue on their current trajectory 

it will only be a short period of time before we observe 

that Victoria is among the worse states in Australia for 

imprisoning its Aboriginal population. 

1. Australian Bureau of Statistics, Prisoners in Australia, Canberra, ABS, p56, 2012. 

Imprisonment data used in this article relies on this source unless otherwise indicated. 

2. The Northern Territory National Emergency Response or ‘Intervention’ was a package 

of changes to income provision, law enforcement, land tenure and other measures 

introduced by the Australian Government in 2007. 

3. C Cunneen, E Baldry, D Brown, M Brown, M Schwartz & A Steel, Penal Culture and 

Hyperincarceration, Ashgate, Farnham, forthcoming 2013. 

4. L Roth, Law and order legislation in the Australian States and Territories: 2003-2006, 

Briefing Paper No 12/06, Parliamentary Library, Parliament of New South Wales, 2006, 1. 

5. A Steel, ‘Bail in Australia: Legislative Introduction and Amendment Since 1970’ in 

M Segrave (ed), Australia and New Zealand Critical Criminology Conference 2009: 

Conference Proceedings (Monash University and the Australia and New Zealand Critical 

Criminology Network, 2009), 228-243. 

6. G Fisher, Victoria’s Prison Population 2001 to 2006, Sentencing Advisory Council, 

Melbourne, 2007, 5 & 7. 

7. Although there were increases in offences against the person, motor vehicle offences and 

good order offences, ibid, p13. 

8. ibid. p6. 

9. J Fitzgerald, Why are Indigenous imprisonment rates rising, Issue Paper No 41, New 

South Wales Bureau of Crime Statistics and Research, Sydney, August 2009. 

10. Smart Justice, More prisons are not the answer, November 2011, available at http://www. 

smartjustice.org.au/cb_pages/more_prisons_are_not_the_answer_to_reducing_crime.php 

11. Department of Justice, Victorian Aboriginal Justice Agreement (2000), Melbourne. The first 

VAJA was released in 2000, the second in 2006, and the third in March 2013. 

12. F Allison & C Cunneen, ‘The Role of Indigenous Justice Agreements in improving legal 

and social outcomes for Indigenous people’ Sydney Law Review, 32: 645-669, 2010. 

13. Atkinson, Kerr & Associates, Review of the Victorian Aboriginal Justice Agreement 

(2000/01-2003/02), Department of Justice, Melbourne, 2005; Nous Group, Evaluation 

of the Aboriginal Justice Agreement : Phase 2 : final report, Department of Justice, 

Melbourne, 2012. 

14. D Brown, ‘The limited benefit of prison in controlling crime’, Current Issues in Criminal 

Justice 137, 142-143,22(1), 2010. 

15. Australian Bureau of Statistics, Repeat Imprisonment, Australian Social Trends, March 

Quarter 2010, Canberra, Catalogue No. 4102.0, 2; Steering Committee for the Review 

of Government Service Provision, Overcoming Indigenous disadvantage: Key indicators 

2009, Productivity Commission, 2009, [4.50]; Universities Australia, Equity and 

Participation Action Plan, April 2008, 2. 

16. Based on tertiary enrolment figures (Census 2006) and prison numbers (National Prisoner 

Census 2006). This estimate is also consistent with the results from the 2002 National 

Aboriginal and Torres Strait Islander Social Survey. In the 2002 Survey, 3 per cent of 

Indigenous people reported having a Bachelor degree or above, while 7 per cent reported 

being incarcerated in the previous five years. See ABS, National Aboriginal and Torres 

Strait Islander Social Survey, 2002, ABS, Canberra, Catalogue No 4714.0: 14, 2004. 

Chris Cunneen is Professor of Justice and Social Inclusion 

at the Cairns Institute and School of Law, at James Cook 

University. From 2006-2010 he was the NewSouth Global 

Chair in Criminology at the University of New South Wales 

and continues as a Conjoint Professor at UNSW Law Faculty.


INSIGHT 8 

Q&A: Victoria’s Aboriginal 

Justice Agreements 

Andrew Jackomos, Director of the 

Koori Justice Unit, which coordinates 

the Victorian Aboriginal Justice 

Agreement – a formal partnership 

agreement between the Victorian 

Government and senior members of 

Victoria’s Indigenous population. 

What drove the establishment of the 

Victorian Aboriginal Justice Agreements 

The first Aboriginal Justice Agreement 

(AJA1) was launched in 2000, in 

response to the commitment given at 

the 1997 National Ministerial Summit 

on the (lack of) implementation of the 

Royal Commission into Aboriginal 

deaths in custody recommendations. 

Out of that summit came a 

communiqué which called upon all 

jurisdictions to establish partnership 

agreements to drive improved justice 

outcomes. Victoria’s first AJA came out 

of that. We were the first up and seem 

to be the last left standing. We have 

now had three Agreements signed with 

Victorian governments, with the most 

recent (AJA3) launched in March 2013. 

What have been the biggest 

achievements 

The first Agreement (AJA1, 2000-2006) 

laid the foundation for improved justice 

outcomes, through the development of 

robust partnerships and infrastructure 

and by establishing a new range of 

justice initiatives, the first of their kind 

in Victoria. The second (AJA2, 2006- 

2012) focused on the prevention of 

crime and reducing reoffending. 

An independent evaluation of AJA2 1 

found it had significantly improved 

justice outcomes for Kooris in Victoria 

and that the partnership structures 

set a strong foundation. It found there 

were lower numbers of Kooris in prison 

and fewer offenders and offences than 

expected, based on previous trends 2 . 

Importantly, the social return on 

investment analysis conducted as 

part of the evaluation calculated gross 

benefits to Victoria around $22-26 

million in 2011, representing a social 

return on investment of between $1.66- 

1.93 for every dollar invested. When 

you are going in to Treasury arguing 

for money, there is no better evidence 

you can offer than saying ‘not only is it 

producing good justice outcomes but 

it makes good financial sense’. 

What’s made it work 

We have a set of principles that we 

grew from the Royal Commission 

findings and recommendations around 

Aboriginal participation, inclusion, 

and partnership through all initiatives 

and policies that we design, develop, 

implement and evaluate. Other factors 

include strong leadership from both 

the Aboriginal community and within 

the Department of Justice, cultural 

strength underpinning all we do, the 

development and empowerment of 

community justice responses, and 

ensuring an equitable spread of 

resources within the Koori community. 

What are the hurdles 

There are many challenges, but the 

main ones are: 

1. Lingering racism throughout the 

justice system, unfortunately 

reflective of the broader community. 

2. Adequate funding particularly in a 

constrained financial environment. 

3. The pressure of the Koori youth 

demographic, with a growing 

number of young Aboriginal people 

around the country which is putting 

more demand on our resources. 

4. The complexity with alcohol and 

drugs, and mental health. The drug 

‘ice’ (crystallised methamphetamine 

hydrochloride) is having a big 

impact on our families and 

communities. 

5. The continuing presence of family 

violence that is damaging our 

children, ruining families and 

threatens community cohesion. 

How important are the Regional 

Aboriginal Justice Advisory Committees 

(RAJACs) 

The RAJACs are central to our work 

and where our partnership between 

the Koori community and the justice 

sector begins. They are chaired 

by senior members of the Koori 

community, and from that, we get ‘buy 

in’ from the community. The RAJACs 

drive activity on the ground, they are 

our ‘eyes and ears’. It’s about getting 

Koori business as core business. 

What are the priorities ahead 

The Victorian Aboriginal Affairs 

Framework 2013-18 includes a 

commitment to close the gap in the 

number of Aboriginal people (youth 

and adult) under justice supervision by 

2031 – this is the first time an Australian 

jurisdiction has set a target for closing 

the gap in justice outcomes. 

To support that, the AJA3 (2013- 

2018) sets a range of priorities, 

including preventing and reducing 

the progression of Koori youth into 

the justice system and maximising 

the diversion opportunities for Koori 

women, particularly as many young 

women are young mothers. 

A big focus will be to reduce conflict 

and violence within communities and 

addressing the whole suite of issues 

that drive contact with the justice 

system. ‘Ice’ is one of those and a 

growing problem, but alcohol is still 

the biggest problem in our community, 

with mental health close behind. 

Are the Victorian AJAs a good 

model nationally 

Each state and territory has to 

develop a model that suits its own 

circumstances, but the principles of 

participation and inclusion that we 

work by – ‘consultation’ is not a word 

used anywhere in the AJA – can and 

should be replicated anywhere. It 

might seem easier for governments 

to do the work themselves – but once 

you undermine those foundations, you 

weaken the whole structure. 

1. Nous group, Evaluation of Aboriginal Justice Agreement 

– Phase 2, Final Report, May 2012, available at http://bit. 

ly/10PSkgB 

2. The evaluation found non-metro regions of Victoria 

had seen a reduction in over-representation in prison, 

in some cases by more than 25 per cent; overall overrepresentation 

had worsened ‘but by less than would 

have been expected without the AJA2.’


PROF. EILEEN BALDRY 

INSIGHT 8 

Disabling justice 

Our prisons are packed with people with 

mental and cognitive impairments. Professor 

Eileen Baldry offers alarming insights into how 

they are failed before and after they become 

enmeshed in the criminal justice system. 

It has long been obvious to many who struggle 

with mental and/or cognitive impairment (and their 

supporters) and whose lives are enmeshed with the 

criminal justice system that they are not well served 

by our public institutions. Evidence from all ‘Western’ 

countries, particularly the United Kingdom and United 

States, over the past 30 years shows that people with 

mental impairments are imprisoned at higher rates 

than their peers without mental impairment. 1 

In New South Wales there has been mounting and 

strong evidence via the Inmate Health and the Young 

People in Custody Surveys that 40–50 per cent of 

adult prisoners and 60 per cent of juvenile detainees 

have mental impairment (excluding drug or alcohol 

disorder) and the rate appears to be increasing. 2 

Although the level of over-representation is not as 

high in Victoria, rates of mental illness amongst 

prisoners are also of great concern. 3 

Lesser recognised is that people with a cognitive 

impairment are also over-represented in police 

events, at courts, in the prison population and, most 

alarmingly, in the juvenile justice population. 4 For 

example, a recent survey of juvenile offenders in 

custody in NSW demonstrated that a remarkable 77 

per cent scored below the average range of intellectual 

functioning, compared to 25 per cent expected in the 

general population. Of these: 

• 14 per cent had an IQ of less than 70 (intellectual 

disability [ID] range) compared with 2 per cent 

expected in the general population, and 

• a further 32 per cent had an IQ between 70 and 

79 (borderline intellectual disability [BID] range) 

compared with less than 7 per cent expected in the 

general population. 

Young Aboriginal people in custody had an even 

higher incidence of cognitive impairment, with 20 per 

cent in the ID range and 39 per cent in the BID range. 5 

But there is very little information on or understanding 

of those in criminal justice systems with complex 

needs; 6 that is, persons who have more than one 

and, most often, multiple impairments, and who also 

experience serious social disadvantages. They are 

more likely than people with only one impairment or 

none to have earlier contact with police, be victims as 

well as offenders, be a client of juvenile justice, have 

more police contacts, and more police and prison 

custody episodes and to experience these criminal 

justice events over much of their lives. 7 

Differentiating the manifestations of mental or 

psychiatric disabilities from those associated with 

cognitive impairment is a challenge for many working 

outside specialist medical and/or disability fields. 8 But 

when it comes to recognising and working with people 

with both mental and cognitive impairment who have 

lived with social disadvantage, abuse and exclusion 

(complex needs), most people working in criminal 

justice systems, including police, legal officers and 

corrections staff, have virtually no idea of what this 

means or what to do to best assist. 9 

LIFELONG DATA RESEARCH 

Much research on and work in this area focuses on 

the individual and their impairment, and on a single 

diagnosis, for example mental disorder, intellectual 

disability or alcohol or drug use, and how to treat these 

particular disorders or impairments or how to divert 

this group from court and prison. There are, by the 

way, very few places to which to divert people in this 

group and, even if diverted, long-term support in the 

community is extremely rare in most jurisdictions. There 

has though been very little examination anywhere on 

this group of people’s life-course institutional pathways 

into, around and out of the criminal justice system: in 

other words, why they have ended up enmeshed in the 

criminal justice system at all.


INSIGHT 8 

Despite being found unfit to 

plead or not guilty by reason 

of mental illness they are 

imprisoned as there is nowhere 

else to accommodate them. 

However these matters have been the subject of two 

Australian Research Council (ARC) projects since 2007 

that have gathered life-long institutional data on 2,731 

persons who have been in prison in NSW and whose 

mental and cognitive diagnoses are known. 10 Mental 

impairment amongst this cohort refers to psychosis, 

anxiety disorder, affective disorder, personality disorder 

or neurasthenia. 11 People with cognitive impairment 

include individuals with intellectual disability (ID) 

(IQ 70 and


INSIGHT 8 

There is evidence that 

appropriate, integrated, 

structured support can 

effect positive change 

There is growing evidence from cases reported in the 

media and in work done by the Aboriginal Disability 

Justice Campaign, that many young Aboriginal people, 

mainly males, with significant cognitive impairment 

and usually with mental health and AOD problems as 

well, are being held indefinitely in prisons following 

offences in particular in the Northern Territory and 

Western Australia. 

Despite being found unfit to plead or not guilty by 

reason of mental illness they are imprisoned as there 

is nowhere else to accommodate them. Had they 

received ongoing and appropriate disability services 

and supports as children and young people the 

outcome is likely to have been far more positive for 

them, their families and communities. 

Another aspect recently examined using the 

institutional pathways project data is the cost of 

managing people with disability and complex needs 

via the criminal justice system. 12 Cases were selected 

to span the range of people and their diagnoses 

and every event or intervention with each agency 

throughout life was costed and these costs added 

together. The life-course institutional costs for the 11 

people (currently aged 23–55 years) whose cases 

were examined ranged from around $900,000–$5.5 

million each. Of the total $22 million, $14 million was 

associated with criminal justice agencies. These 

staggering costs though do not begin to account 

for the personal and human relationship costs 

experienced by the individuals with disability, their 

families, victims and communities. 

With the Australian prison population continuing to 

rise and in particular the rate of Aboriginal prisoners 

now a record 15 times the non-Aboriginal rate, the 

over-representation of persons with disability in justice 

settings across Australia is a national disgrace and a 

breach of Australia’s human rights obligations. 

There is evidence in the studies that appropriate, 

integrated, structured support can effect positive 

change. In almost all cases this involved a personal 

ongoing relationship with someone or a number of 

people, such as an aunty, a disability support worker 

or a parole office, who helped bring stability, structure, 

safe housing and human relationships into the person’s 

life. But the current reality is that early intervention 

and disability support resources are available to 

those families who can afford it and can advocate on 

behalf of their child or family member – not to poor 

and disadvantaged Australians. Australia has the skill, 

capacity and resources to address these systemic 

problems. Does it have the political will 

Eileen Baldry is Professor of Criminology, School of 

Social Sciences, at the University of New South Wales 

and President of the New South Wales Council of Social 

Service (NCOSS). 

1. HR Lamb, LE Weinberger, & BH Gross,Mentally ill persons in the criminal justice 

system: some perspectives. Psychiatric Quarterly 75 (2):107-126, 2004; T Butler 

& S Allnut, Mental Health among NSW Prisoners, Corrections Health Service 

Sydney, 2003; J Draine, MS Salzer, et al, Role of social disadvantage in crime, 

joblessness, and homelessness among persons with serious mental illness. 

Psychiatric Services, 53(5): 565-573, 2002. 

2. D Indig, C Vecchiato, L Haysom, R Beilby, J Carter, U Champion, C Gaskin, E 

Heller, S Kumar, N Mamone, P Muir, P van den Dolder, & G Whitton, 2009 NSW 

Young People in Custody Health Survey: Full Report. Justice Health and Juvenile 

Justice, Sydney, 2011. 

3. J Taylor, Mental Health in Prisons: monitoring and oversight, Victorian 

Ombudsman, Melbourne, 2012. 

4. S Hayes, P Shackell, P Mottram, R Lancaster, The prevalence of intellectual 

disability in a major UK prison, British Journal of Leaning Disabilities, 35(3): 162- 

167, 2007. 

5. Indig et al, 2011, op. cit. 

6. T Carney, “Complex needs at the boundaries of mental health, justice and welfare: 

gatekeeping issues in managing chronic alcoholism treatment” Current Issues in 

Criminal Justice, 17(3): 347-361, 2006. 

7. New South Wales Law Reform Commission, People with cognitive and mental 

health impairment in the criminal justice system – Diversion. Report 135, NSW Law 

Reform Commission, Sydney, 2012. 

8. M Henshaw, & S Thomas, “Police encounters with people with intellectual 

disability: prevalence, characteristics and challenges”, Journal of Intellectual 

Disability Research, 56(6): 620-631, 2012. 

9. P Snoyman, Staff in the NSW criminal justice system understanding of people with 

and without disability who offend, PhD thesis, University of NSW, 2010. 

10. ARC Linkage Project at the University of New South Wales, ‘People with mental 

health disorders and cognitive disability in the criminal justice system in NSW’, 

Chief Investigators: E Baldry, L Dowse, I Webster; Partner Investigators: T Butler, S 

Eyland and J Simpson; details at http://www.mhdcd.unsw.edu.au/ 

11. T Butler, S Allnutt, Mental illness among New South Wales’ prisoners, NSW 

Corrections Health Service, 2003. 

12. E Baldry, L Dowse, R McCausland, M Clarance, Lifecourse institutional costs of 

homelessness for vulnerable groups, National Homelessness Research Agenda 

2009-2013, Commonwealth of Australia, 2012.


JULIE BOFFA AND MICHAEL LIVINGSTONE 

INSIGHT 8 

Thinking Outside: 

Alternatives to 

remand for children 

Children in remand are among the most vulnerable 

and disadvantaged in our community. Julie Boffa and 

Michael Livingstone outline the findings of a major 

new report by Jesuit Social Services that explores 

the experiences of children on remand and proposes 

reforms to legislation, policy and practice, including 

raising the age of criminal responsibility to 12 years 

across Australia. 

How to reform remand for children That’s a question 

that takes us far outside the four walls of any custodial 

facility as we confirmed recently in Jesuit Social 

Services’ Thinking Outside: Alternatives to remand 

for children. Exploring who are the children on remand 

and what are their pathways through the criminal 

justice system, the research canvassed a broad 

cross-section of children’s experiences from early 

childhood to patterns of disadvantage and contact 

with child protection, police and youth justice. Our 

conclusions lead us to propose a better way, involving 

a broad and multilayered approach to respond to 

children’s behaviour and the ‘web of disadvantage’ 1 

that underlies it. 

As well as an extensive review of relevant literature 

and policy, Thinking Outside drew on primary data 

provided by the Department of Human Services 

(DHS) and Victoria Police, observations of Children’s 

Court proceedings, and interviews with young people 

who had experienced remand. DHS data included all 

children and young people issued with youth justice 

orders in 2010, all preceding orders for these children, 

and all subsequent orders through to the time of 

data extraction (May 2012). Police Law Enforcement 

Assistance Program (LEAP) data included alleged 

offenders, 10-17 years of age, in the 2010–11 financial 

year, and 10 year trend data across a range of 

variables. In addition, DHS undertook a data matching 

exercise to identify the child protection involvement 

of a small group of the youngest children on remand, 

those 10–12 years old. 

Some of the findings and conclusions of Thinking 

Outside are presented below. The full research report 

and the summary report can be found at www.jss.org.au. 

We need a broad and multilayered 

response to children’s behaviour, and the 

‘web of disadvantage’ that underlies it. 

Who are the children on remand 

Thinking Outside confirms that children on remand 

in Victoria are among the most vulnerable and 

disadvantaged in our community. This is consistent 

with findings of previous research which has shown 

that children in detention are more likely to be victims 

of abuse, trauma, and neglect. They also have 

higher than normal rates of drug and alcohol abuse, 

mental illness, intellectual disability, child protection 

involvement and school exclusion. Evidence has also 

shown us that children who enter the criminal justice 

system at a younger age are likely to offend more 

frequently and have longer criminal careers. 

Previous research also finds that the characteristics 

of children in custody can often be traced to the 

family, school and community environments in which 

they have been raised. Although no two children are 

the same, common factors such as peer influence, 

parenting practices, the strength of social bonds, the 

absence of pathways into learning and employment, 

poverty and disadvantage can influence involvement 

in the criminal justice system. This is particularly 

evident for Aboriginal children, overrepresented in 

the criminal justice system in all States and Territories 

across Australia. 

Findings of Thinking Outside extended this profile of 

children on remand in Victoria: 

• 25 per cent of children on youth justice orders in 

2010 lived in 2.6 per cent of postcodes in Victoria. 

• Children aged 14 or younger when first involved in 

the criminal justice system were more likely to come 

from areas with higher rates of missed maternal 

and child health consultations and higher levels of 

developmental vulnerability on the Australian Early 

Developmental Index. 

• Children younger than 13 years of age made up 

only 19 per cent of alleged offenders aged 10–17 in 

2010–11. However, of the same sample of offenders, 

36 per cent had their first recorded offence at the 

age of 13 or younger. For Aboriginal children this 

figure was 64 per cent. 

1. T Vinson, Dropping off the Edge: The Distribution of Disadvantage in Australia, 

Jesuit Social Services & Catholic Social Services Australia, Melbourne and 

Canberra, 2007


INSIGHT 8 

• Aboriginal children presented younger and were overrepresented 

at all stages of the youth justice system 

compared to non-Aboriginal children. For example, 

57 per cent of Aboriginal children in custody in 2010 

received a first order at 14 or younger compared with 

17 per cent of non-Aboriginal children. 

• While only a very small number of the youngest 

children with youth justice orders in 2010 

experienced remand at any time over the course 

of their youth justice involvement 3 , all 27 children 

first remanded at 10–12 years of age were known 

to Child Protection, 52 per cent were known to 

Child Protection before their third birthday (some as 

young as three days of age) and 30 per cent were 

Aboriginal. Over the course of their involvement with 

youth justice, these children experienced three times 

more orders than other children with orders in 2010, 

and more average days in custody than children first 

remanded at older ages, despite many of the children 

still being 16 or under when the 

data was extracted. 

• Children subject to remand, 

particularly long periods of 

remand, are among the most at 

risk within the youth justice system, 

as measured by the Victorian 

Offenders Need Inventory for 

Young people (VONIY). 

Alongside the need for locally based, 

early intervention services, Thinking 

Outside concluded that a concerning 

sub-group of children who present 

to criminal justice authorities have 

a high risk profile. This profile – 

Aboriginal children, children known 

to child protection, children with 

multiple police contacts or criminal 

justice involvement at 14 years or 

younger – must trigger an intensive 

service response. In order to enable 

more constructive futures, such reform must target 

the breadth of children’s underlying needs, as seen 

below, independent of their stage within the criminal 


What are their pathways on remand 

As gatekeepers to the justice system, police play 

a critical role in children’s pathway to or away from 

remand. Central to this are police decisions to arrest 

REFORM PROPOSALS 

1. Intervene early and locally 

2. Focus on prevention 

3. Target Aboriginal 

disadvantage 

4. Strengthen legislative 

protections for children 

5. Maximise diversion from 

remand 

6. Intensify support for the 

most vulnerable 

7. Develop infrastructure to 

build evidence 

children or not. Where a child is arrested, then the 

question of remand or bail arises. Despite Law Reform 

Commission recommendations, Victoria still lacks 

a legislative framework governing diversion. In this 

context, an increase in the rate of arrests for children 

(up 5 per cent over the decade to 2010–11 despite a 

9 per cent reduction in crime in the 10–17 year age 

range), proportionally greatest among children 13 

years or younger, is of concern. 

Across Europe the median age of 

criminal responsibility is 14 years. In 

Victoria and across Australia, it is 10. 

Internationally, such young children are generally not 

dealt with through the criminal 

justice system. Across Europe, 

for example, the median age of 

criminal responsibility is 14 years, 

with approaches to younger 

children including welfare or 

educational responses. 4 In Victoria 

the age of criminal responsibility is 

10, the norm across Australia. 

Thinking Outside proposes lifting 

this to 12, advocating that no 

primary school child should be 

dealt with through the criminal 


Despite Victoria’s having the 

lowest rates of children on remand 

in Australia 5 , Thinking Outside 

concluded that some children 

are still experiencing remand 

unnecessarily. We found that 80 per 

cent of arrests happened outside 

of business hours when access to support services is 

most limited. Twice as many after-hours weekend (40 

per cent) as weekday (21 per cent) remand admissions 

are for one to three days. For weekend admissions, this 

means a child is remanded on a Saturday or Sunday 

by a Bail Justice then released on Monday at the 

next court sitting. In response Thinking Outside calls 

for reforms that introduce child specific bail criteria, 

including restraints on remand where a custody 

2. N Hazel, Cross-national comparison of youth justice, Youth Justice Board for 

England and Wales, 2008. 

3. From a child’s first youth justice order to the date of data extraction, 4 May 2012 

4. N Hazel, op. cit.


INSIGHT 8 

sentence is unlikely, and strengthening supports 

available for children at risk of remand outside of 

business hours. 

Worryingly, a significant number of children had 

repeated and extended exposure to remand: 32 per 

cent of children or young people (46 per cent of young 

Aboriginals) issued with youth justice orders in 2010 

experienced remand at some time over their childhood 

involvement with the justice system. The majority of 

these children (60 per cent) experienced multiple 

admissions: 104 of the 321 children or young people 

who experienced an episode of remand during 2010 

that lasted for 21 days or less experienced another 

that lasted for more than 21 days in the same year. 

Combined with what we know of the profile of children 

on remand, the service response to children must be of 

sufficient intensity to meet their multiple needs, and be 

able to provide continuity of care in and out of custody. 

How do we better respond 

As a community services organisation questioning how 

to better respond to children at risk of remand, Jesuit 

Social Services was continually drawn to the larger 

question of our underpinning values and approach to 

children in the justice system. Our decision to use the 

word children throughout the report rather than the 

more usual young people was part of our answer to 

this, for children they are as defined by law (Children 

Youth and Families Act 2005) and children they are 

developmentally, still maturing and vulnerable. 

A particular issue that arose is what we called ‘the 

paradox of remand’ – the observation that while 

children were placed in remand on the basis of 

decision makers’ beliefs about their ‘unacceptable 

risk’, in Victoria their indeterminate status as neither 

convicted nor sentenced effectively paralyses the 

system’s response to the underlying causes of that 

risk for fear of implying guilt. This itself surfaces an 

underlying tension in our approach to children in the 

justice system more broadly – the clash between what 

is commonly described as the justice model, favouring 

the impartial dispensation of laws aimed at ensuring 

efficiency and due process, and the welfare model 

which focuses primarily on behaviour change and 

crime reduction through interventions to address the 

underlying causes of offending. 

Through our increased understanding of the profile and 

experience of children on, or at risk of, remand, our 

resolution to these tensions was to underpin proposed 

reforms with a number of guiding principles. Integral 

to these was that justice interventions be as limited as 

possible, while welfare responses should be expansive 

as possible. 

From this position, key recommendations of Thinking 

Outside include: 

• Raise the age of criminal responsibility to 12 years, 

consistent with United Nations recommendations of 

the lowest acceptable age. 

• Introduce a legislative framework for diversion and 

child specific bail criteria. 

• Reduce Aboriginal over-representation. 

• Increase the capacity of after-hours services. 

• Introduce intensive, community based assessment 

and supports matched to the needs of children 

which are triggered by, but independent of their 

stage in the justice system. 

Julie Boffa is Policy Manager at Jesuit Social Services. 

Michael Livingstone is Policy Officer. Thinking 

Outside: Alternatives to remand for children can be 

found at http://www.jss.org.au/policy-and-advocacy/ 

publications-and-research 

5. Australian Institute of Health and Welfare 2012, ‘Juvenile Justice in Australia 2010- 

11’. Juvenile justice series no. 10, JUV 10, AIHW, Canberra.

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BERNIE GEARY 

INSIGHT 8 

Hearing the voices 

of young people 

Victoria’s Independent Visitor Program is providing 

independent ‘eyes and ears’ on the experiences 

of young people in custody in the state. Victoria’s 

Children and Young People’s Commissioner Bernie 

Geary describes its growing role, and moves to 

develop a charter for young people in youth justice 

custody that could be a national model. 

The Victorian Ombudsman’s 2010 report into 

the conditions at the Parkville Youth Justice 

Centre identified the need for more independent 

oversight of youth justice centres; similar to that 

which exists in prisons, disability services and 

mental health facilities. 

In response to the report, the Hon. Mary 

Wooldridge, MP, Minister for Community 

Services, requested an Independent Visitor 

Program be developed and managed by the 

Office of the Child Safety Commissioner, now 

the Commission for Children and Young People. 

In April 2012 our office established the 

Independent Visitor Program (IVP) at the 

Parkville Youth Justice Precinct. We are now 

broadening the program to the Malmsbury Youth 

Justice Centre, a facility for youth justice clients 

aged up to 21 years. 

The aim of the IVP is to improve the experiences 

of young people in custody, by providing a 

mechanism through which matters impacting on 

young people’s day-to-day lives at the centre can 

be identified and acted on. 

At the Parkville Centre on a designated day 

of each month, Independent Visitors visit all 

of the units to provide young people with an 

opportunity to talk about their experiences of 

being in custody and to raise issues of concern. 

The Visitors then seek to assist the young people 

to resolve their issues in a timely matter with staff 

and management at the centre. Exit interviews 

are also conducted with young people prior to 

their release from custody using Exit Interview 

Questionnaires. These provide young people with 

an opportunity to provide anonymous feedback 

about their experiences of being in custody. 

Independent Visitors are volunteers with a range 

of professional and personal backgrounds. 

They have been selected, trained, appointed 

and supported by the Commission. The Visitors 

bring ‘fresh eyes and ears’ and a community 

perspective to their visits to the centre, without 

having any pre-conceived or expert opinions. 

While the Visitors find the role extremely 

rewarding, for those who have never previously 

entered a custodial environment, a visit can 

sometimes be a little confronting. 

Young people have responded well to the 

program during its first year of operation. Their 

interaction with the Visitors has improved over 

time with many young people acknowledging 

and being able to identify them at the centre. This 

progress has been assisted by the consistency 

of the Visitors, who over time have got to know 

the young people and been able to slowly build 

a level of trust. Many young people have become 

more familiar with the role and functions of the 

Visitors, as word has spread about the outcome


INSIGHT 8 

of issues raised by the Visitors. These outcomes 

have given young people more confidence to 

seek out the support offered by the Visitors. 

Most issues raised by young people relate to their 

day-to-day living in the centre. For example, since 

the inception of the program, they have always 

talked about `food’, be it the quality or the quantity. 

This issue has always been at the `top of the 

list’ of issues raised each month, except during 

summer when the issue of air conditioning moved 

up. These issues and many others continue 

to be worked through in a timely manner with 

management and staff at the youth justice centres. 

The IVP has provided the Commission with direct 

insight into the experiences of young people 

detained in youth justice centres in Victoria. It 

has given us the opportunity to see and speak 

to some of Victoria’s most vulnerable children 

and young people; and provide them with 

an independent person able to express any 

concerns they may have during this time. It has 

also provided us with an opportunity to work 

closely with the Department of Human Services, 

through adding value to the work undertaken at 

the centre. 

CHARTER FOR YOUNG PEOPLE 

IN CUSTODY 

Understandably, young people are not always 

sure about their rights and entitlements while 

incarcerated. To assist with this challenge, the 

Commission is now considering the development 

of a charter for young people in youth justice 

custody, similar to a charter in place for children 

and young people in all forms of out-of-home 

care. We hope to undertake this project in 

collaboration with young people in custody and 

other key stakeholders. It is then proposed to take 

a draft charter to the national forum of Australian 

Commissioners and Guardians in late 2013, for 

discussion and consideration of a model that 

other states and territories may wish to emulate. 

In the near future a Commissioner for Aboriginal 

Children and Young People will be appointed. 

It is envisaged that the new Commissioner will 

provide assistance with the development of a 

culturally appropriate component of the IVP that 

specifically assists Aboriginal young people in 

custody at the Parkville and Malmsbury facilities. 

While the IVP has been in place for only 14 

months, we believe that its independent oversight, 

engagement of the community in a closed 

custodial setting and the provision of supported 

access to issue resolution has contributed to 

the enhanced safety and wellbeing of vulnerable 

young people in custody. 

As part of the Commission’s broader mandate 

to monitor the lives of vulnerable children and 

young people, we are interested in promoting the 

development of an Independent Visitor program 

for children and young people living specifically in 

residential care out-of-home settings. 

Bernie Geary OAM is Principal Commissioner at 

the Commission for Children and Young People.


DAVID BROWN 

INSIGHT 8 

Justice reinvestment: the circuit breaker 

The term Justice Reinvestment was first coined only 

10 years ago, in an article for George Soros’s Open 

Society Foundation in 2003. In the decade since it 

has shot to prominence in the United States, United 

Kingdom and now Australia. Professor David Brown 

outlines the principles, practices, and politics of 

Justice Reinvestment, here and internationally. 

Justice Reinvestment involves the redirection of 

resources from Corrections budgets to various 

forms of community provision such as education, 

housing, drug and alcohol, employment, healthcare 

and other resources in high crime communities from 

which many prisoners come and to which many 

prisoners will return. Its growing popularity stems 

from a range of factors, including recognition across 

the political spectrum that increasing imprisonment 

rates and populist law and order strategies have 

failed to prevent crime and ensure public safety. 

Indeed the criminogenic, or crime producing nature of 

imprisonment is being recognised as recidivism rates 

have become a political issue. 

A characteristic of Justice Reinvestment is its appeal 

across the political spectrum; indeed many of its major 

proponents in the US are moral, religious and fiscal 

conservatives, who increasingly view imprisonment 

and constant prison building as hugely inefficient 

and wasteful of public resources. Some but not all 

progressives have welcomed its potential to shift 

resources from ‘lock em up’ responses after the event 

to social democratic community and solidarity building 

which may help to reduce crime and reoffending and 

increase public safety. It is this ability to attract bipartisan 

support that may enable Justice Reinvestment 

to become somewhat of a circuit breaker out of the 

‘who is toughest on crime’ law and order auction 

approach to criminal justice policy which has been 

dominant in many jurisdictions since the mid 1980s. 

Features of Justice Reinvestment 

Justice Reinvestment relies on several features: justice 

and asset mapping, budgetary devolution and localism. 

Justice mapping involves compiling and analysing 

data on the geography of criminal offending – 

identifying high risk, high crime neighbourhoods to 

which many criminal offenders return after prison. 

Asset mapping involves identifying the various 

community assets in those neighbourhoods which 

are a source of strength and social cohesion, be 

they governmental, non-government, civic, cultural, 

sporting, or religious. Consideration is given to how 

these assets might be strengthened through policies 

and programs which engage with offenders, such 

as job creation programs, mentoring schemes, 

educational or drug and alcohol programs. 

Depending on where they are, Justice Reinvestment 

schemes typically involve some form of budgetary 

devolution to the local level. In the US this is 

typically from federal or state levels down to county 

administrations; in the UK from central to local 

government. Budgetary devolutions can take various 

forms: block grants, fiscal incentives, and the 

use of social bonds by trusts, local businesses or 

social entrepreneurs. For example incentives might 

be offered to local businesses which employ exprisoners. 

2 The budgetary allocations might be fresh 

seed money or real or notional reallocations produced 

by reduced use of imprisonment and the consequent 

budgetary savings. 

International approaches 

To support the world’s highest imprisonment rates the 

US Corrections budget is more than $60 billion per 

year. Spending on prisons over the last 20 years has 

increased more than 300 per cent, compared with 125 

per cent on education. 3 Sixteen US states have signed 

1. S Tucker & E Cadora, Justice Reinvestment: To invest in public safety by 

reallocating justice dollars to refinance education, housing, healthcare, and 

jobs, Ideas for an Open Society, 3; For a range of assessments of Justice 

Reinvestment, see a special issue of the American Society of Criminology 

Journal, Criminology and Public Policy (2011) Vol 10(3). In the Australian context 

see: D Brown, Melanie Schwartz and Laura Boseley, ‘The Promise of Justice 

Reinvestment’, Alt LJ Vol 37:2 2012 96-102. 

2. See TR Clear, ‘A private-sector, incentives-based model for justice reinvestment’, 

Criminology and Public Policy 10(3) 606, 2011. 

3. The Council of State Governments, the National Summit on Justice Reinvestment 

and Public Safety, January 2011, 2-3.


INSIGHT 8 

+ 

_ 

up with the Council of State Governments Justice 

Centre, the Justice Reinvestment coordination body, 

to investigate or apply Justice Reinvestment schemes 

and other states have followed Justice Reinvestment 

through different avenues. Results have been very 

promising in some states. A 2004 pilot scheme in 

Connecticut resulted in a cancellation of a contract 

to build a new prison, resulting in savings of $30 

million, more than one third of which was reinvested in 

community and neighbourhood-based programs, postrelease 

assistance and reduced parole and probation 

caseloads, which have reduced technical violations 

and lowered re-imprisonment rates. Similar savings 

have been made in other states, including Texas. 

In the UK the concept has been promoted in a range 

of political forums and research reports, including the 

House of Commons Justice Committee Report, Cutting 

crime: The case for Justice Reinvestment 4 ; a Green Paper, 

Breaking the cycle: Effective punishment, rehabilitation 

and sentencing of offenders 5 ; and the Institute of Public 

Policy Research Report, Redesigning crime through 

Justice Reinvestment. 6 As yet few Justice Reinvestment 

schemes have been put into operation in the UK. 

Applicability in Australia 

There are around 30,000 prisoners in Australia at any 

one time, with approximately 50,000 cycling in and 

out of prison each year, at a cost of $3 billion per 

annum or over $300 per prisoner per day. Roughly 

40,000 Australian children have a parent in prison and 

20 per cent of Aboriginal children have a parent or 

carer in prison. 7 Indigenous prisoners make up 26 per 

cent of the total, an over-representation of 14 times 

for adults and 24 times for young people in juvenile 

detention centres. A New South Wales Bureau of 

Crime Statistics and Research (BOCSAR) study found 

that one in four young Indigenous men are being 

processed through the criminal courts every year. 8 

Another BOCSAR study estimated that a 10 per 

cent reduction in the Indigenous re-imprisonment 

rate would result in savings of more than $10 million 

each year. 9 High imprisonment rates in Aboriginal 

communities break down family and social bonds, 

contribute to social dysfunction, normalise the prison 

experience and arguably increase the likelihood of 

crime. Recidivism rates in such communities are very 

high; three quarters of Aboriginal prisoners in 2008 

had previously been imprisoned. 10 

Justice Reinvestment has attracted increasing interest 

and support in Australia in recent years. The call has 

been led by the current and immediate past Aboriginal 

and Torres Strait Islander Social Justice Commissioner 

beginning with the 2009 Social Justice Report. It 

was echoed in the Legal and Constitutional Affairs 

Committee in its inquiry on Access to Justice, where it 

recommended the commencement of a pilot of Justice 

Reinvestment strategies and exploration of its potential 

in regional and remote Indigenous communities. The 

NSW Greens have adopted Justice Reinvestment as 

part of their justice policy platform; a strategic review 

for the Minister for Juvenile Justice recommended it be 

implemented for juveniles in NSW 11 ; and NSW Attorney 

General Greg Smith has expressed support and 

proposals for pilot projects are under consideration 

by the NSW Coalition Government. Unfortunately the 

Victorian Government seems headed in the opposite 

direction, buying heavily into the discredited law and 

order approach finally being abandoned in NSW. 

The current Senate Legal and Constitutional Affairs 

Committee Inquiry is galvanising interest and support. 

One of the terms of reference is ‘the scope for Federal 

Government action which would encourage the 

adoption of justice reinvestment policies by state and 

territory governments.’ 12 

4. UK House of Commons Justice Committee, 2010. 

5. UK Ministry of Justice, (2010) 

6. Institute for Public Policy Research (IPPR) Redesigning Justice: Reducing Crime 

Through Justice Reinvestment, June 2011. 

7. M Levy, ‘Children of prisoners: An issue for courts to consider in sentencing’, 

Presentation to Federal Criminal Justice Forum, 29 September 2008, Canberra. 

8. D Weatherburn, B Lind, and J Hua, ‘Contact with the NSW Court and Prison 

Systems: The influence of age, Indigenous status and gender’, Crime and Justice 

Bulletin 78, NSW BOCSAR, Sydney, 2003. 

9. D Weatherburn, G Froyland, S Moffatt and S Corben, ‘Prison populations 

and correctional outlays: The effect of reducing re-imprisonment’, Report on 

Contemporary Issues in Crime and Justice No 138, NSW Bureau of Crime Statistics 

and Research, December 2009 1. 

10. D Brown, ‘The limited benefit of prison in controlling crime’, Current Issues in 

Criminal Justice, 22(1), 2010, pp 137-148; D. Rose and TR Clear, ‘Incarceration, 

social capital and crime: Implications for social disorganisation theory’, 

Criminology 441, 1998; D Stemen, Reconsidering Incarceration: New directions for 

reducing crime, Vera Institute of Justice,2007. 

11. Noetic Solutions, A Strategic Review of the New South Wales Juvenile Justice 

System, Report for the Minister for Juvenile Justice, April 2010. 

12. http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_ 

Committeesurl=legcon_ctte/justice_reinvestment/info.htm


INSIGHT 8 

_ 

+ 

A recent report by Deloitte Access Economics for the 

National Indigenous Drug and Alcohol Committee, 

Australian National Council on Drugs, highlighted the 

economic, social and health benefits of diverting nonviolent 

Indigenous offenders into community residential 

rehabilitation services instead of prison. They included: 

• total financial savings of $111,458 per offender as 

well as improvements in health and mortality 13 

• savings of $340 million per year for state and 

territory governments if 1,600 non-violent Indigenous 

offenders were treated for addictions instead of 

being jailed 

• sufficient funds to run 20 rehabilitation centres from 

diverting just 100 non-violent offenders. 14 

These are the sorts of projects and results that 

might follow from a serious take-up of Justice 

Reinvestment approaches, particularly in relation to 

Indigenous communities. 15 

A key issue here in building the momentum is to 

identify who would co-ordinate, fund and operate 

such diversion schemes and particularly what agency 

could take on a co-ordination role, similar to the 

Council of State Governments (CSG) in the US. The 

Australian Greens have proposed an independent 

National Centre for Justice Reinvestment (NCJR) 

which would provide technical assistance, policy 

advice and financial support for states and territories 

wanting to establish pilots. Such a centre could also 

collect data, liaise with local communities, assist the 

development of plans and engage in evaluation. Local 

community consultation, control and development 

would be crucial to the viability and success of 

particular projects and it is important that justice 

reinvestment not be used as a screen behind which 

a strategy of disinvestment in prison programs and 

services takes place. 

Given the right political conditions, Justice 

Reinvestment approaches could see a shift from the 

increasingly discredited and hugely expensive resort 

to imprisonment as the default response to social 

marginality, dysfunction and crime. 

The more that Justice Reinvestment approaches 

can be removed from partisan politics, the better the 

prospects for more rational uses of the resources 

poured into the criminal justice sector. They are not 

a panacea 16 but, given the right political conditions, 

they could see a shift from the increasingly discredited 

and hugely expensive resort to imprisonment 

as the default response to social marginality, 

dysfunction and crime. Concrete projects, run in 

high crime neighbourhoods by a diverse range of 

local government, non-government, community 

organisations and businesses, might not only turn 

out to be far cheaper, but also far more effective in 

reducing crime and re-offending, and in increasing 

public safety and social cohesion. 

David Brown is Emeritus Professor at the Law Faculty, 

University of New South Wales 

13. National Indigenous Drug and Alcohol Committee, Australian National Council on 

Drugs, An economic analysis for Aboriginal and Torres Strait Islander offenders: 

prison vs residential treatment, August 2012 at X1 

14. AAP, ‘Rehab cheaper than jail for indigenous offenders –report’, Sydney Morning 

Herald, February 5 2013. 

15. See M Schwartz, M, ‘Building communities, not prisons: Justice Reinvestment 

and Indigenous over-representation’, 14(1) Australian Indigenous Law Review 2-17, 

2010. 

16. For a range of other conceptual and practical difficulties associated with Justice 

Reinvestment see: D Brown, M Schwartz and L Boseley, ‘The Promise of Justice 

Reinvestment’, Alt LJ Vol 37:2 2012 96-102.


CHÉ STOCKLEY 

INSIGHT 8 

THE ROLE OF OUT-OF-HOME CARE 

IN CRIMINAL JUSTICE OUTCOMES 

Children and young people in out-of-home care have 

experienced profound trauma and face a lifetime 

of consequences, including trouble with the justice 

system. Ché Stockley looks at where and how out-ofhome 

care and schools can step in to break the nexus. 

The connection between childhood abuse and 

neglect and adult contact with the criminal justice 

system is well documented, not least in the report of 

the recent Protecting Victoria’s Vulnerable Children 

Inquiry 1 which found: 

‘…child abuse and neglect are associated 

with many adverse outcomes for the people 

concerned and for society more broadly… poor 

health; poor social functioning and participation in 

society; poor educational attainment and labour 

market outcomes; homelessness; delinquency 

and crime; adult victimisation and early death.’ 2 

What is less clear about this pathway is the role of the 

child protection system – in particular out-of-home 

care – as an agent and when it fails to intervene at the 

right time and the right way to break this nexus. 

Childhood links with criminal justice 

Research undertaken with a sample of adult women 

prisoners at the Victorian Metropolitan Women’s 

Correctional Centre 3 found 76 per cent had 

experienced physical, emotional and/or sexual abuse 

in childhood or adolescence. 

In 2012, the Australian Institute of Criminology 4 

reported that victims of childhood sexual abuse were 

almost five times more likely than their peers to be 

charged with an offence. Childhood sexual abuse 

victims were more likely to offend, had more charges 

brought against them, had more guilty verdicts, 

experienced more custodial sentences and, as they 

grew older, continued to offend. 5 

Neither study explored whether the offenders had been 

in out-of-home care as children. 

Clearly a complex interplay of factors contributes to 

criminal behaviour in adulthood. Increasingly, however, 

the link between the out-of-home care experience into 

which a number of these vulnerable young people are 

placed and their later adult contact with the criminal 

justice system is now being made. Some argue that 

the progression of the abused child into the child 

protection system, and then into the justice system, 

becomes pronounced when the child enters out-ofhome 

care. 6 One study found that the longer period of 

time in which abuse is sustained, the sooner the young 

person will come into contact with the criminal justice 

system. Another identified a connection between 

the number of placements in out-of-home care and 

offending, finding that for young people with a higher 

number of placements, there was a corresponding 

higher number of juvenile arrests. 7 

In research conducted in Victoria, 21 per cent of a 

sample of children aged over 10 years and living in 

out-of-home care in 2007 had had contact with the 

police in the previous six months. This included being 

charged with a criminal offence or being cautioned or 

warned by the police. 8 

Researcher Kath McFarlane takes this thesis further. 

Her examination of New South Wales Children’s Court 

criminal files found that 34 per cent of young people 

appearing before the court were, or had been, in outof-home 

care, and that children in care were 68 times 

more likely to appear in the Children’s Court than other 

children. She also identified that many of these children 

and young people were charged with assault against 

out-of-home care staff or damage of their out-of-home 

care property. 9 

1. P Cummins, D Scott, B Scales, Reports of the Protecting Victoria’s Vunerable 

Children Inquiry, State of Victoria, 2012. 

2. Cummins et al, ibid, page 48. 

3. J Pollard, D Baker, ‘An analysis of coping resources, trauma and significant 

life events in a sample of female prisoners,’ Paper presented at the Women in 

Corrections: Staff and Clients Conference, Australian Institute of Criminology, 31 

October 2000, availalbe at http://www.aic.gov.au/media_library/conferences/ 

womencorrections/pollbak.pdf 

4. JRP Ogloff, MC Cutajar, E Mann, P Mullen, ‘Child sexual abuse and subsequent 

offending and victimisation: A 45 year follow-up study’, in Trends and issues in 

crime and criminal justice, No 440, June 2012. 

5. Ogloff et al, ibid, page 4. 

6. See, for example, P Mendes & S Baidawi, ‘Pathways into youth justice: 

Strengthening policy and program supports for young people in the youth justice 

system who are transitioning from out-of-home care’, Children Australia, 37. 

7. DeGue & CS Widom, ‘Does out-of-home placement mediate the relationship 

between child maltreatment and adult criminality’, 2009 Child Maltreatment 14, 

page 345. 

8. S Wise & S Egger, The Looking After Children Outcomes Data Project: Final 

Report, Australian Institute of Family Studies, prepared for the Department of 

Human Services Victoria, 2007, page 15. 

9. K McFarlane, K., ‘From care to custody: Young women in out-of-home care in the 

criminal justice system’, Current Issues, p346.


INSIGHT 8 

Treatment for trauma in a residential setting 

may assist with addressing mental ill-health and 

prevent or minimise other risk factors. 

McFarlane argues that particular elements of care are 

responsible for fast-tracking children and young people 

from out-of-home care into the youth justice system, 

with carers in residential care, in particular, likely to call 

the police when faced with challenging behaviour. Half 

of the young women in McFarlane’s research identified 

as being in care and were facing court for property 

damage offences – all committed in foster care or 

against the group home or other ‘specialist’ facility in 

which they lived. ‘Almost half the male care cohort had 

been charged with similar offences’. 10 

As well as the lower threshold for contacting police, 

research has identified other key issues within the 

culture of residential care that may contribute to these 

outcomes. These include: 

• peer pressure and negative social learning, and 

• poor support resulting in young people leaving care 

unprepared and at the earliest possible age (16 years). 

Absence of positive role models or positive 

connections with mainstream community (for example, 

sport, recreation, education) can also contribute to 

poor outcomes for young people in residential care. 11 

Whether or not out-of-home care plays a direct or 

incidental role in the connection between abused young 

people and the criminal justice system, it is clear that 

the nexus is too often not broken by the out-of-home 

care experience, nor through contact with universal 

services, such as the education system, despite the 

opportunities for positive intervention that arise. 

Therapeutic care 

MacKillop Family Services recognises that children 

and young people in out-of-home care have 

experienced the most profound trauma, and are likely 

to have experienced chronic and severe sexual and 

physical abuse or have lost parents and caregivers. 12 

Residential care homes typically house children and 

young people with the most complex needs of the 

out-of-home care cohort. Residential care has been 

described as a ‘last resort’, housing those who have 

highly challenging and disruptive behaviours, conduct 

disorders, neuro-developmental problems, mental 

illness and who are a risk to themselves and others. 13 

The language of prevention, originally adopted in 

the public health sphere, provides a useful prism 

for interventions in child protection, 14 incorporating: 

• a primary/universal approach that has its ‘focus 

on whole communities in order to reduce risk 

factors and strengthen protective factors that 

contribute to child abuse and neglect’ 

• secondary or early interventions that ‘focus on 

vulnerable children and families who are ‘at risk’ 

of child abuse or neglect’, and 

• tertiary interventions that ‘focus on children 

and families where abuse or neglect has 

already occurred or children are at risk of 

significant harm’. 15 

In response to that trauma, MacKillop is currently 

engaged in providing therapeutic residential care 

(TRC) in Geelong. TRC has been defined as: 

‘…intensive and time-limited care for a child or young 

person in statutory care that responds to the complex 

impacts of abuse, neglect and separation from family. 

This is achieved through the creation of positive, safe, 

10. Ibid p347 

11. P Mendes, S Baidawi, op cit, pp14-16 

12. S Yampolskaya, M Armstrong, R McNeish, ‘Children placed in out-of-home 

care: Risk factors for involvement with the juvenile justice system”, Violence and 

Victims, Vol 26, No 2, 2011. 

13. S McLean, R Price-Robertson, E Robinson, ‘Therapeutic residential care 

in Australia: Taking stock and looking forward’, National Child Protection 

Clearinghouse Issues No 35, 2011, Australian Institute of Family Studies, 

Melbourne, p 1. 

14. P Holzer, P, Defining the public health model for the child welfare services 

context, resource sheet no. 11, National Child Protection Clearinghouse, 

Australian Institute of Family Studies, Melbourne, 2007 

15. Cummins et al, ibid, p124 

16. As published in McLean et al, ibid, p2.


INSIGHT 8 

More therapeutic care places and a greater 

emphasis on education will bridge the gap between 

children and young people in care and their peers 

healing relationships and experiences informed by a 

sound understanding of trauma, damaged attachment 

and developmental needs.’ 16 

Across Australian states, the practice of TRC is based on 

attachment theory, trauma theory, the neurobiology of 

attachment and trauma and/or the concept of resilience. 17 

Evaluations of TRC point to better outcomes including 

in stability, achievement of developmental milestones, 

better continuity of care and greater opportunities 

for family reunification. 18 Treatment for trauma in a 

residential setting may assist with addressing mental 

ill-health, and prevent or minimise other risk factors 

(low education, low employment, substance abuse). 19 

There is enormous potential for the out-of-home care 

system to provide a more healing environment for the 

children and young people in its care, and therefore 

to break that nexus between abuse and neglect 

and criminality. In addition to providing TRC and 

therapeutic foster care, MacKillop is implementing the 

Sanctuary Model of care, which is a trauma-informed 

method for creating a culture of hope and innovation in 

organisations that work with vulnerable people. 

While many models address the individual and 

group treatment needs of vulnerable clients, 

Sanctuary also provides leaders and community 

members with a framework for creating safer, betterfunctioning 

organisations. Properly adopted and 

implemented, MacKillop anticipates that it will lead 

to improved outcomes for clients, improved staff 

satisfaction and retention, and decreased violence 

and stress in the workplace. 

However universal services, like the education system, 

must also identify opportunities for more effective and 

positive interventions that aim to impact on a range 

of outcomes, including involvement in the criminal 


In response to recommendations of the Protecting 

Vulnerable Victorian Children Inquiry, the Victorian 

Government acknowledged that while most residential 

staff try to create a home-like environment for young 

people, many lack the specialised skills to work 

effectively with severely traumatised children. 20 It 

agreed to develop a five year plan for out-of-homecare 

and a complementary plan for Aboriginal 

children in out-of-home care. Government agencies 

are working on the plan in consultation with the 

community sector. 

The Inquiry also noted the ‘considerable gap’ between 

children and young people in out-of-home care and 

the general school population. Unfortunately Victoria’s 

Out-of-Home Care Education Commitment 21 does little 

to overcome structural barriers of access to education 

for disadvantaged children and young people, while 

the more recent Towards Victoria as a Learning 

Community education policy fails to address the issue 

of disadvantage in a convincing way. 

More therapeutic care places and a greater emphasis 

on education will bridge the gap between children 

and young people in care and their peers. This will go 

some way to improving outcomes across a number 

of domains, including the over-representation in the 

criminal justice system of adults who, as children, 

experienced abuse and neglect. 

Ché Stockley is Senior Policy Officer at MacKillop 

Family Services 

17. McLean et al, ibid p 7. 

18. Department of Human Services, Evaluation of the Therapeutic Residential Care 

Pilot Programs: Final Summary and Technical Report, Verso Consulting, 2011. 

19. Centre for Excellence in Child and Family Welfare and La Trobe University, Report: 

The Circle Program: an evaluation of a therapeutic approach to foster care, Centre 

for Excellence in Child and Family Welfare, 2012. 

20. Ogloff et al, ibid, page 5. 

21. Department of Human Services, Victoria’s Vulnerable Children: Our Shared 

Responsibility, 2012, Victorian Government, p 23 

22. Cummins et al, ibid, page 250. 

23. Endorsed in 2011 by the Secretaries of the Department of Human Services and 

the Department of Education and Early Childhood Development, along with the 

Catholic Education Commission and Independent Schools Victoria.


ALISON MACDONALD 

INSIGHT 8 

New risks in 

family violence 

reforms 

Victoria has led the way nationally on family violence 

reform but, warns Alison MacDonald, the momentum 

has stalled and is putting women and children at risk. 

There is no doubt that justice system responses 

to family violence have come a long way in recent 

decades, and most dramatically so during the past 

10 years in Victoria. Where, in the past, the prevailing 

paradigm within justice systems was of family violence 

being a private relationship matter or ‘just a domestic’, 

it is now ‘an Australasian policing priority’ 1 and core 

business for our Magistrates’ Courts. This reflects a 

shifting community expectation that it is clearly the 

State’s responsibility to respond to the prevalence 

of violence against women and children in our 

communities. However, as the true rate of violence 

within families increasingly manifests across justice 

and human service systems, we have to question our 

capacity to effectively deal with the demand it presents. 

The Victorian family violence reform of the past 

decade was in many ways ground-breaking for the 

unprecedented collective efforts of non-government 

and government agencies to improve the system for 

victims of family violence. Reform was premised on 

integration between crisis-focused elements of the 

system including police, family violence services and 

the court system. But is the family violence reform now 

victim of its own success Do we have the safety net for 

victims of family violence that we were aiming to achieve 

when we embarked on these ambitious reforms 

In 2006 the Victorian Law Reform Commission 

published an extensive report proposing the drafting of 

new legislation governing the family violence intervention 

order system, along with a suite of accompanying 

non-legislative recommendations. In subsequent years, 

the Victorian Government established pilots of two 

Family Violence Divisions in Heidelberg and Ballarat 

Magistrates’ Courts and specialist Family Violence 

Services in Melbourne, Frankston, Sunshine and 

Werribee courts. Key elements of these models include 

having Applicant and Respondent support workers 

available at court to provide advice, make referrals, and 

explain the legal process. 

The two Family Violence Court Divisions are the closest 

example of a ‘one stop shop’ model for victims of family 

violence in Australia. As it is a pilot, however, access is 

available only where victims or offenders are residing 

in, or the family violence was committed in, postcodes 

specified by a gazetted notice. Funding for the specialist 

courts has continued beyond the pilot terms; however 

despite the early intention to roll out the specialist model 

across the state, they have not been adopted in the 

50-odd other Magistrates’ courts in Victoria, effectively 

creating a two-tiered level of service provision. 

In late 2008 the Victorian Parliament enacted the 

Family Violence Protection Act 2008. This Act was the 

result of an extensive consultation process which is 

widely recognised as enshrining family violence best 

practice into law; indeed it has been identified as the 

benchmark in family violence protection in Australia 2 . 

1. Australian Police Leaders, Australasian Policing Strategy on the prevention and 

Reduction of Family Violence, Commonwealth of Australian and New Zealand, 

Sydney, 2008. 

2. Australian/NSW Law Reform Commissions, Family Violence, a national legal 

response, Commonwealth of Australia, 2010.


INSIGHT 8 

At the same time, Victoria Police implemented its 

Code of Practice for the Investigation of Family 

Violence and has subsequently introduced other 

targeted and effective initiatives such as police powers 

to issue Family Violence Safety Notices which have 

dramatically improved policing responses to family 

violence in Victoria. 

We are now several years down the track and the early 

work of the family violence reform is now manifesting in 

incredible demand on all parts of the system. Victoria 

Police responded to over 50,000 family violence 

incidents last year, a 24 per cent rise on the previous 

year, and expects those figures to continue to rise to 

64,000 3 this year with no indication they will plateau 

any time soon. Applications for Family Violence 

Intervention Orders and related hearings make up a 

huge proportion of cases in the Magistrates’ Court 

jurisdiction with, we understand, some of the state’s 

busiest courts hearing 60–70 family violence matters 

per day. There were 31,332 family violence intervention 

granted orders across the state last year, an 89 per 

cent increase over 10 years 4 . 

This demand on the justice system was not 

unpredicted. In undertaking the ambitious family 

violence reform agenda and implementing the 

recommendations of the VLRC Report the members 

of the then Statewide Steering Committee to Reduce 

Family Violence understood that a significant increase 

in family violence reporting and intervention order 

applications was to be expected. The inadequate 

response to these figures are now not only threatening 

to unravel the advances that have been achieved, but 

increase risk to women and children in often extremely 

dangerous situations. We make assurances that the 

system will provide the safety net they need, and then 

fail to deliver because its resources are spread so thin. 

Recent Domestic Violence Victoria research 5 with a 

group of women who had experienced family violence 

and had been through the justice system elicited 

extensive recommendations about the need for further 

reform to improve safety for women and children and 

the accountability of perpetrators. The work found 

that individual experiences of the justice system are 

inconsistent and highly dependent on circumstance; 

while a number of women in the group reported positive 

interactions with the justice system in line with the 

reform objectives, others found the process confusing, 

unsupportive and in a number of cases contributed 

to their feelings of vulnerability and victimisation. One 

of the group’s key recommendations was a roll-out of 

specialist family violence models, including support 

workers across all courts. Last year, following an inquest 

into the death of a perpetrator, then State Coroner 

Jennifer Coate recommended all courts hearing 

family violence matters include support workers. The 

Department of Justice responded that this would 

require ‘policy and associated budget commitments 

from government that are currently not available’. 

The Victorian family violence reform was extremely 

ambitious: working together to improve the system 

for victims of violence, hold perpetrators accountable 

and, in time, prevent violence from occurring. Strong 

leadership and political will was instrumental in 

achieving this vision. Many of the critical legislative 

changes and policy drivers have been put in place, 

but addressing such a complex social problem as 

family violence takes time and many more years of 

work remain. Unfortunately the wheels have come 

off the momentum for change and the system is 

faltering in the face of unparalleled demand. It is 

critical that the Victorian Government does not back 

away from ongoing reform now and instead opt for 

solutions that dampen ‘demand’, and put women and 

children at risk. We must continue to build stronger 

systems accountability for violence that creates such 

disadvantage for women and children in Victoria. 

Alison MacDonald is Policy Officer at Domestic 

Violence Victoria 

3. N Bucci, Police Chief Warns on Rising Cases, The Age, 22 April 2013. 

4. Magistrates’ Court of Victoria, 2011- 2012 Annual Report 

5. Domestic Violence Victoria, Women Steering Justice Reform Report, 2013.


ANTHONY KELLY 

INSIGHT 8 

An end to racial profiling 

in sight 

In a landmark settlement to a racial 

discrimination claim brought by 

six young African-Australian men, 

Victoria Police this year agreed to a 

public inquiry aimed at stamping out 

racial profiling in police practices. 

Anthony Kelly outlines the case and 

its implications. 

The case 

Haile-Michael and Others v 

Commissioner of Police and Others 

was a public interest litigation involving 

a claim of racial discrimination by racial 

profiling against several members 

of the Victorian Police, the Chief 

Commissioner of Victoria Police, and 

the State of Victoria. The case was the 

first time police have faced allegations 

of racial profiling – the targeting of 

people because of race or colour – 

under the Commonwealth Racial 

Discrimination Act. 

The six young African-Australian men 

who brought the case to the Federal 

Court alleged that they were stopped, 

harassed and racially abused by 

several individual police officers 

between 2005 and 2009. Their legal 

argument was that these incidents were 

part of a pattern of racial profiling that 

contravened the Racial Discrimination 

Act. They alleged that they were 

disproportionately targeted, stopped, 

questioned, and searched because of 

their race. In doing so, they claimed 

the police unlawfully discriminated 

against them in contravention of the 

Commonwealth Racial Discrimination 

Act 1975 and engaged in offensive 

behaviour based on racial hatred in 

breach of the Act. 

Following an unsuccessful mediation 

in the Australian Human Rights 

Commission, the Flemington 

Kensington Community Legal Centre 

took action on the young men’s 

behalf in the Federal Court in 2010 

with the backing of Peter Seidel from 

Arnold Bloch Leibler, Emrys Nekvapil, 

Phoebe Knowles and eminent QC 

Jeremy Rapke. 

The case was one of many such 

civil litigation cases brought by the 

Legal Centre as part of its Police 

Accountability Project, which has 

used public interest civil litigation 

strategically in the absence of effective, 

independent police accountability 

mechanisms in Victoria. 

The agreement 

In February 2013, six years after the 

case began, on the eve of an eightweek 

trial and as Victoria Police Chief 

Commissioner Ken Lay was expected 

to give evidence, it was settled. 

Victoria Police acknowledged, in a 

joint statement read out in the Federal 

Court, that it had received many 

complaints of racial discrimination, 

including the complaints filed by 

the six applicants who alleged they 

were targeted for arbitrary stops 

(also known as street checks or ‘field 

contact’), police searches, assaults 

and racial abuse. 

Under the agreement, Victoria Police 

agreed to a public review of: 

• field contact policy 

• the collection of data about field 

contacts, and 

• Victoria Police’s current crosscultural 

training program. 

It will report on the results and its 

intended response by the end of 2013. 

This agreement has other important 

aspects: it allowed the young men to tell 

their stories in public, saw the release of 

crucial research commissioned for the 

applicants, and provided public access 

to internal documents discovered 

during the long lead-up to the case. 

Racial profiling 

As Commissioner Lay has said, racial 

profiling describes the targeting 

by police of members of an ethnic 

group based on race 1 . It means an 

individual’s race or ethnicity is used by 

police as the primary factor in deciding 

whether to stop and search someone, 

to ask for their name or to question 

them. This is not because they have 

committed a crime, but because 

police have wrongly assumed that 

they are more likely to be involved in 

criminal activity because of their actual 

or perceived race, ethnicity, national 

origin, or religion. 

Racial profiling is not confined to 

Victoria, nor indeed to Australia 2 , 

however the United Kingdom, Canada, 

Spain and France are considering or 

implementing legislation and policy to 

combat the practice. Despite years of 

reports and research by Community 

Legal Centres and human rights bodies, 

the Victorian police continue to deny 

that any racial bias occurs. 

‘I do not believe our members 

would identify people and harass 

or continually check them simply


INSIGHT 8 

‘‘I myself have been beaten 

up but… it is not a personal thing. 

We understand it is a systemic issue and 

that is why we are trying to address it in 

a systemic way. It’s not about one police 

officer, it’s about changing a whole system.’’ 

Daniel Haile-Michael, 18 February 2013 

because of their ethnicity,’ 

maintained Chief Commissioner Lay 

on the day of the settlement. 

Victoria Police Law Enforcement 

Assistance Program (LEAP) 

data from Flemington and North 

Melbourne (2005–2008) was 

analysed during the case by leading 

statistician, Professor Ian Gordon, 

from the University of Melbourne. 

The results confirmed what young 

people had been reporting to our 

Legal Centre for years, showing 

young African people were about 2.5 

times more likely to be subject to an 

arbitrary ‘stop and search’ relative to 

their numbers in the area. 3 

Police and media commentators 

justify high rates of ‘stops’ among 

African people as related to their 

alleged high representation in crime in 

the area. In fact, the same LEAP data 

shows that young African Australians 

were actually under-represented in 

the local crime figures. 

Thirdly, defenders of racial profiling 

argue that simply stopping and 

searching someone who ‘has 

nothing to hide’ does no harm. 

But numerous studies report that 

being subject to law enforcement 

scrutiny because of race reduces a 

person’s sense of safety and equal 

citizenship. Such treatment can 

cause psychological, social, financial 

and physical harm as well as distrust, 

paranoia, alienation, suicidal and 

self-harming behaviour and the 

development of depression and 

post-traumatic stress disorders. 4 

Racial profiling is known to be 

ineffective: Police waste much time 

stopping and searching people with 

no justification. The ill-judged use 

of stop and search damages the 

reputation of police and undermines 

community trust in law enforcement. 

It can lead to antagonisms and deep 

resentment. Racial profiling violates 

our fundamental rights to privacy, 

freedom of movement and the right 

to be treated equally before the law. 

Non-discriminatory treatment by the 

law is a bedrock of our society and 

enshrined in the Racial Discrimination 

Act and the Charter of Human Rights 

and Responsibilities Act. Nondiscriminatory 

policing plays a critical 

role in ensuring these protections. 

‘Implicit’ racial bias 

The unconscious belief that, somehow, 

a black person is more likely to commit 

a crime is known as ‘implicit’ racial 

bias – shown by considerable research 

to produce biased policing and racial 

profiling on a systemic scale. 5 

The Haile-Michael case provided 

insights into implicit bias in the Victoria 

Police, through redacted versions of 

police documents, including police 

diary notes. 

‘‘Checked loitering around park bench 

near basketball court. High criminal 

area of robberies and assaults. All 

wearing ‘home boy/gangster’ clothing’’ 

was one comment. Young black men 

did not talk or meet in a street – they


INSIGHT 8 

‘‘loitered’’. Another note referred to 

‘criminals loitering in the area’, although 

none had been charged with or 

committed an offence. Police that 

rely on stereotypical assumptions or 

indirect markers of race such as colour, 

neighbourhood, dress, music, manner 

of walking cannot produce informed, 

accurate or just results. 

This implicit racial bias is fed in 

Victoria by a daily diet of media 

headlines referring to ’African gangs’ 

or ‘Sudanese crime’, and reinforced 

by police spokespeople highlighting 

dubious ‘African crime’ statistics. 6 

Politicians play the race card with 

equal guile. 

The way ahead 

This case has been a powerful example 

of the strategic use of public interest 

litigation as an advocacy tool and 

demonstrates the positive role antidiscrimination 

legislation can play in 

addressing broad community concerns. 

The forthcoming Victoria Police enquiry 

provides an opportunity for police to 

explore where racial bias can and does 

occur in policing and to implement 

clear unequivocal training, policy and 

practice reforms to prevent it in the 

future. The Chief Commissioner can 

use it to institute ‘root and branch’ 

change, based upon best international 

experience and practice, and vastly 

improve the way police work with new 

and culturally diverse communities. 7 

The Flemington Kensington 

Community Legal Centre believes 

racial profiling must be specifically 

trained against – otherwise implicit 

racial stereotyping will occur. Policy 

must reflect the fact that racial 

profiling of any type is unlawful and 

contravenes basic human rights. 

Practice must ensure that any racial 

profiling be identified through the 

collection of statistics and a ‘stop and 

search’ receipting system such as was 

implemented in the United Kingdom 

and elsewhere. Victoria Police would 

be required to collect demographic 

data, develop procedures to respond 

when racial bias appears, and 

introduce policies to discipline officers 

who engage in the practice. 

Further, the Victoria Government 

should take the lead and introduce 

specific anti-racial profiling legislation. 

This would create an enforcement 

mechanism to ensure that police 

anti-profiling policies are being 

followed and victims of profiling can 

seek redress. 8 Unless racial profiling 

is specifically made unlawful, as it is 

in other countries, incidents such as 

those that prompted the Haile-Michael 

case will occur again and again. 

We owe it to the courage and tenacity 

of the six young men involved in this 

case to put an end to racial profiling 

once and for all. 

Anthony Kelly is the Executive Officer of 

the Flemington Kensington Community 

Legal Centre. 

The Victoria Police announced its 

public review in late May. It is inviting 

submissions by 31 July 2013 at 

http://www.police.vic.gov.au/content. 

aspDocument_ID=39350 

1. K Lay, ‘Police committed to focusing on crime, not 

race’, The Age, 26 February, 2013, available at http:// 

www.theage.com.au/comment/police-committedto-focusingon-crime-not-race-20130225-2f1ue. 

html#ixzz2PKj1AJuO 

2. See the Racial Profiling Resource Centre at http://www. 

racialprofilinganalysis.neu.edu/index.php; Reducing 

ethnic profiling in the European Union: a handbook of 

good practices, Open Society Foundations, New York, 

2012; Ontario Human Rights Commission, Paying the 

price: the human cost of racial profiling, Inquiry Report, 

Canada, 2003. 

3. I Gordon, Statistical Commentary on Federal Court of 

Australia Proceeding VID No 969 of 2010, Melbourne, 2012. 

4. S Crengle, E Robinson, S Ameratunga, T Clark, D 

Raphel, Ethnic discrimination prevalence and 

associations with health outcomes: data from a nationally 

representative cross-sectional survey of secondary 

school students in New Zealand, BMC Public Health, 

Auckland,2012,available at http://www.biomedcentral. 

com/content/pdf/1471-2458-12-45.pdf; N Priest N, 

YParadies, B Trenerry, M Truong, S Karlsen, Y Kelly, ‘A 

systematic review of studies examining the relationship 

between reported racism and health and wellbeing 

for children and young people’, Social Science and 

Medicine. 2; Stopwatch: research and action for fair 

and accountable policing, London, at http://www.stopwatchorg/experiences/ 

5. See http://fairandimpartialpolicing.com/ 

6. T Hopkins, How to beat up Sudanese crime stats, 

newmatilda, 2012, available at http://newmatilda. 

com/2012/08/23/how-beat-sudanese-crime-stats 

7. For example, the Ottawa Police Service in Canada 

developed a strong racial profiling policy after similar 

litigation, see http://www.ottawapolice.ca/en/community/ 

diversitymatters/racialprofiling.aspx 

8. See http://www.communitylaw.org.au/ 

flemingtonkensington/cb_pages/racialprofiling.php 

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