JUSTICE

The Criminal Justice System in Australia

PETER NORDEN

On the 26th of January 1988, I was on the forecourt of the Sydney Opera House, to witness the re-enactment of the entry of the First Fleet into Botany Bay and Sydney Cove.

As we enjoyed champagne and chicken sandwiches, 40,000 Aboriginal Australians and non-indigenous supporters staged the largest march ever held in Sydney, highlighting the dispossession, suffering and injustice that the forced colonisation of Australia had caused the owners of this land.

In the following 30 years, the prison population of Australia began to increase at five times the rate of the national population, even though, from that time, statistically, serious crime began to diminish right across the country. How could this have happened?

On that 200th anniversary of the arrival of the First Fleet, I was attending an international criminology conference, which had gathered the most famous and most accredited criminologists from around the globe. The New South Wales Premier at the time, Nick Greiner, had tried to prevent this international conference being held because he wanted to avoid the world focusing on our prison settlement history. The Prisons Minister, Michael Yabsley, however, had his way and the international conference went ahead.

How is it that the criminal justice systems across the States and Territories of Australia could imprison so many more people with disability and social disadvantage, so many more Indigenous Australians, over the last 30 years, while the serious crime rate has been rapidly diminishing across the country?

Since 1988, I have had decades of direct experience working within the Australian criminal justice system and have shaped numerous community initiatives and innovative social service programs aimed at addressing the social determinants of imprisonment.

I have guided three major social research programs to interpret the growing social divide in Australian society and the entrenched disadvantage, and sense of alienation, experienced in the most disadvantaged postcodes across the nation. The research, which mapped social disadvantage by postcode according to more than 20 disadvantage factors, was led by the late Professor Tony Vinson AM.

The value of such research rests not in the published findings, but in the follow up: the dissemination and presentation of our findings to key decision-makers and policy-makers in the federal and state and territory governments across the nation. I always spend as much time and financial investment on the dissemination and promotion of the findings of such research, in meeting with political representatives and senior public servants, as on the research program itself. I was able to do this representing key peak bodies, such as the ACOSS (the Australian Council of Social Service), Catholic Social Services Australia, and Jesuit Social Services.

At that time, through these peak bodies, I had a voice, just like the mining industry has a voice, just like the Australian Medical Association, the Australian Pharmacy Guild, the housing construction industry, the armaments industry, the powerful international security organisations, the defence and armaments industry, and so on. They employ lobbyists at great expense who gain access both to the political representatives and to the senior federal and state public servants.

This is what is lacking for many of the most disadvantaged communities in Australia, and in particular the broad range of indigenous communities who live on the margins of Australian society. This is what has been appreciated by far too few of the broader Australian community, as evidenced in last year’s Voice to Government referendum deliberations.

The conclusions that we drew, reflecting on these decades of direct involvement, research and advocacy, at a local, state and national level of policy analysis and implementation, can be summarised in seven short quotations from my 2021 publication: Seeking Justice in the Criminal Justice System in Australia. I inserted these into the front and back covers.

• Prison walls serve a dual purpose: they keep prisoners from escaping and they keep the community outside, and ignorant, of what goes on behind those prison walls.
• Private prison operators are businesspeople who are more interested in doing well than in doing good.
• Let us hope that the future direction of the Australian criminal justice system will be founded on evidence, and not on a misguided model based on our past as a penal settlement.
• A significant change of direction is required to turn around this international scandal of the mass incarceration of Indigenous Australians.
• Through this publication I address the deficiencies of the retributive model of criminal justice and point to the future possibilities, if we were to consider a ‘restorative’ model of justice.
• I attempt to lay the foundations for a substantial change of direction for the future of our criminal justice system in Australia — a movement towards Justice Reinvestment.
• It is time for our community leaders to explore new paths in pursuit of true justice and greater community safety in Australia today.

But to date, we appear to be blindly following the public policy initiatives undertaken in recent decades by the United States and the United Kingdom. It is a policy of segregation and isolation, promoted no doubt by the powerful vested interests of multi-national private security and private prison industries. We can do better than this, if we can first understand the shortcomings of the present models of intervention, particularly in terms of social division.

From Pentridge to private prisons

My earlier years in the Australian criminal justice system were focused on the needs of younger offenders, those placed on community supervision, and later those placed in youth training centres, now known as juvenile justice centres. In 1977, after graduating in Social Work and Criminology from the University of Melbourne, I opened a halfway house for young people aged 17 to 21 upon their release from youth detention centres and adult prisons. Some were serious offenders; the majority were graduates from the welfare institutions of the Social Welfare Department: Wards of the State.

We used to use the term ‘The College of Knowledge’ to describe Pentridge Prison: where a young person without a formal education could learn a trade … how to hot wire a car, how to crack a safe, or, even worse, how to pull off an armed robbery. For some the experience was even more destructive. They experienced physical violence, from staff and other inmates, and far too often serious sexual assault and rape.

That half-way house became known as The Brosnan Centre, after Father John Brosnan OBE who retired as Pentridge Prison Chaplain in 1985, after a thirty-year period of service. I succeeded him as Catholic Chaplain to the Victorian prison system. In seven years in that role, I began to understand the absolute futility of imprisonment, for all but a small minority of offenders: those convicted of serious violent crime.

The majority, even back in 1985, were not convicted of violent or serious offences. They had dropped out of school early, had failed to obtain stable employment, and had no capacity for sustaining secure accommodation.

Following my seven-year stint working full time at places like Pentridge Prison in Coburg and the new maximum security Barwon Prison in Lara, I moved on to a deeper involvement in criminal justice reform and human rights advocacy, working for Catholic Social Services Victoria, as their Policy Director. It was then that I began to understand the significance of mental illness and various forms of disability in bringing younger people into contact with the criminal justice system. Current research indicates that around five per cent of the population has some form of significant disability. Within Australian prisons it is five times that rate.

I formed a Victorian network of around 50 organisations and agencies which we called The Victorian Criminal Justice Coalition. Over a period of 15 years, it became the ‘go to’ organisation for media comment on police accountability, prison justice issues, the courts, law reform and crime prevention. We also regularly made direct representation to senior Cabinet members. The network had high credibility because of the extensive experience of the membership base.

One of the key issues that we addressed during those years was the introduction and growth of the private prison industry, originally in Queensland, then New South Wales and later Victoria and across the country. The growth of this for-profit industry from that time has resulted in the little appreciated fact that Australia is leading the world in the proportion of its prison cells now operated by the private sector. The proportion of our prison cells in private hands is more than double that of the United States and significantly higher than the United Kingdom.

Another core focus of the Criminal Justice Coalition during those years was the dramatic increase in deaths resulting from police shootings. Between 1990 and 1997, 75 people were shot in incidents with police officers. Forty-one were shot by police officers and 33 died from gunshot injuries, self-inflicted.

In Victoria, in a period of just five months, there were seven deaths from the use of ‘deadly force’ by members of Victoria Police. Over a period of 20 years from 1986, there were more than 40 deaths in Victoria. How could this be explained, given that in New South Wales there had been only a fraction of this number over the same period?

Deadly force

During the late 1980s and early 1990s, whenever an operational member of Victoria Police was confronted with a citizen threatening them with any sort of weapon, be it a gun, a knife, a baseball bat or whatever, it was the formal practice first to extend a warning to the person to drop the weapon. If the person failed to drop the weapon and continued to present a threat, it was standard practice to shoot several times to the central body.

In effect this was a practice of shoot to kill, although the term was always avoided by Victoria Police. This practice had been implemented officially by the Police Training Academy in Victoria.

Of course, the general public did not have a lot of sympathy with persons committing serious crimes like armed robbery or assault. But the growing number of citizens shot dead by Victoria Police were those without a criminal record at all, but rather those burdened with serious mental illness.

After the shooting death of a young indigenous woman, Colleen Richmond, at Hanover Welfare Services in St Kilda in September 1994, the policy of police use of firearms in Victoria was changed by force command. Project Beacon retrained all members of Victoria Police in alternative conflict resolution methods. These placed the protection of human life as the number one priority: the lives of the police officers concerned, of the general public, and of the person attracting police attention. The number of deaths diminished dramatically over the following fifteen years.

This change in policy was one of the most successful outcomes of the work of the Victorian Criminal Justice Coalition at the time. We had similar success in changing Victoria Police policy on high-speed police pursuits.

The then Chief Commissioner of Police, Ken Lay, invited me to undertake a consultancy at the Victorian Police Academy at Glen Waverley, on the current policy of high-speed police pursuits. I met with the senior training officers who were preparing recruits for work on the streets and with the senior officers responsible for overseeing such pursuits via radio while they were taking place.

I attended a very detailed presentation, focusing on several different factors, such as the speed of the chase, the amount of nearby traffic, the condition of the road, the weather and any possible nearby vehicles or pedestrians. At the conclusion, I asked the key question: what about the identity of the driver of the car being pursued?

The senior officers responded, “Oh, we never know the identity of the driver, almost without exception.” I replied, “So such a pursuit could be chasing a prison escapee or an armed robber, or it could very well just be a 14-year-old boy, driving his father’s car at night without permission?”

“Yes”, they admitted.

My conclusion was: is not the identity of the driver the key consideration for whether a pursuit should take place in the first place? This omission proved the absolute fallacy of the then accepted policy. Soon afterwards, Victoria Police changed their policy and again established that the key priority in determining whether a pursuit should take place must be the protection of human life.

Serious offenders cause most of the crime

My direct exposure to the Victorian prison population over those years meant that I had close connections with more serious criminal offenders as well. Over more than a decade of the Gangland Wars in the late 1990s, I was increasingly called upon to deal with the grief and loss of many of the family members associated with that conflict, in which 36 underworld figures were killed.

These were serious criminal offenders, engaged in organised and often violent crime. I understood, however, that this type of offender represented less than ten per cent of the total prison population, not only in Victoria but throughout the country.

Serious and violent crime began to decrease during those years across all States and Territories of Australia. This was clearly confirmed by various bureaus of Crime and Statistics in their annual reports every year. The murder rate decreased from around 1990, armed robberies decreased over the following years and serious violent crime overall decreased as well. This is confirmed by the accurate recording of crime figures by the Australian Institute of Criminology in Canberra and the official State and Territory crime statistics agencies.

Unfortunately, ninety per cent of the community follow daily tabloid newspapers for their information, instead of the actual facts. Statistically, violent crime rates have been falling across the country for more than twenty years. If you follow the daily news outlets, you would not get that impression at all.

Three decades of these experiences convinced me that imprisonment should be used only to deal with serious violent offending.

Social determinants of crime

The criminology literature identifies four key social determinants of imprisonment: housing, education, health and employment. These are the areas that must be adequately resourced if we are to stop the size and expense of our criminal justice systems from continuing to grow. The best place to start is good social planning. The goal must be to develop and strengthen social cohesion and a sense of belonging. Allocating adequate resources in these critical areas has been found to be the most effective form of crime prevention internationally.

It seems remarkable, at the present time, that governments across the country have failed to resource the expansion of housing adequately, especially for low-income and middle-income households. This will have its consequences over the coming decade.

Access to health services, in particular outside of the capital cities, is another area where there is evidence of neglect, and failure to provide adequate financial and professional services. In many parts of the country, there simply are not enough teachers being trained, and many are not prepared to work in socially disadvantaged communities. This too will have its social consequences.

From 1995–2002, I was the Chief Executive Officer of Jesuit Social Services, and their Policy Director from 2002–2008. During these years, my focus was much more about establishing crime prevention programs, in the housing, employment, mental health and disability fields. These initiatives were directed towards addressing the social determinants of imprisonment and were largely focused on disadvantaged cultural groups and disadvantaged neighbourhoods.

The most successful programs were those where we were able to attract independent funding, not from government sources. These programs were well designed and carefully evaluated, and the results found their way to Spring Street in Melbourne, Macquarie Street in Sydney, and to the Australian Capital in Canberra.

I stepped aside from the position of CEO after several years, to focus more fully on policy and advocacy in the housing, mental health and employment fields. During these years, I also had positions on the National Board of ACOSS, the Australian Council of Social Services, and Catholic Social Services Australia.

Our advocacy and lobbying were based on years of grass roots experience and of carefully planned and evaluated community initiatives aimed at keeping vulnerable young Australians connected and participating in education and training, with a view to stable employment and housing in the future. These are the areas where good government investment will pay dividends. The results will not be seen in the very short term. The need is for sustained investment in particular localities over several years, longer than the normal Federal or State electoral cycles.

This brings me to the important area of work initiated at that time and completed over more than a decade with the late Professor Tony Vinson AM, originally from the University of New South Wales, and later from the University of Sydney.

After focusing on those whose lives had been increasingly marked by their association with the criminal justice system (not to mention the lives of their victims), it was certainly time to spend more time looking for more substantial solutions: system changing solutions. Solutions that would change the structures of our communities. Some might call it crime prevention. I tend to use a much broader term: community planning and strengthening.

I had first met Professor Tony Vinson in Sydney, ten years prior to this, during the mid-1980s. We had been on a television panel talking about the shameful aspects of Australia’s prison systems. The audience was divided down the middle: serving and former prison officers and police officers on the one side, former prisoners, academics and social reformers on the other.

Tony and I teamed up that evening and maintained contact ever since, until his passing a few years ago. His professional career began as a Parole Officer in the mid-1950s within the NSW Department of Prisons. In the early 1970s he was the Foundational Director of the NSW Bureau of Crime and Statistics and Research. From 1979 to 1981 he headed the NSW Department of Corrective Services. This was a time of intense reform following the Nagle Royal Commission into the NSW prison system.

It had been several years since I finished my term as prison chaplain. I had recently completed my term as Policy Director for Catholic Social Services Victoria and had taken on the leadership of the newly named Jesuit Social Services. Our policy and research arm, The Ignatius Centre, was ready for a major project.

Tony and I put our heads together to shape a study that would measure disadvantage by postcode according to many factors. Our focus at this stage was on New South Wales and Victoria alone.

From anecdotal experience we had seen a growing concentration of disadvantage in a small number of neighbourhoods. Even at that stage it was showing signs of becoming more and more entrenched from the cradle to the grave.

We initially chose thirteen different measures of social disadvantage that are correlated with overall disadvantage, according to the research literature: low birth weight, child abuse or neglect, child injuries, early school leavers, unskilled workers, unemployment, long-term unemployment, low income, emergency assistance, psychiatric hospital admissions, court defendants, court convictions, and mortality.

From State and Federal government records, and from Census Data, we obtained the figures on each of these thirteen factors, according to each postcode area in both Victoria and New South Wales.

The first report of these studies: Unequal in Life, the distribution of social disadvantage in Victoria and New South Wales (August 1999) was launched in both Melbourne and Sydney. It received widespread print, television and radio coverage in each state.

This very first study was part of a series of four completed by Tony Vinson. It set the scene for the raised awareness and then the proposed policy and program changes we were trying to bring about. If we could show to a wider sector within Australian society, and in particular to the State and Federal governments and their leaders in social policy implementation, that the social divide was increasing, we believed that there would be a greater political will to address that divide.

Increased public resources were already at that time being directed towards massive prison construction, and to reactive services such as child protection and mental health critical incident responses. These could all be redirected towards more effective early intervention forms of prevention, in those very places where they were most needed.

The concept of justice reinvestment

What we were doing through the 1990s set the scene for what later became known as ‘Justice Reinvestment’.

A word of warning: not all things that dress themselves up as Justice Reinvestment can seriously claim that identification. Too many people, within Australia and beyond, are claiming it falsely. Within Justice Reinvestment programs you must be able to see hard evidence of resources being redirected back into the most disadvantaged communities and a gradual lowering of the imprisonment rate from those specific neighbourhoods. This is simply not happening at present within Australia.

The second, follow up report was completed in March 2004: Community Adversity and Resilience: the distribution of social disadvantage in Victoria and New South Wales and the mediating role of social cohesion.

The focus on the mediating role of social cohesion was a very significant development of our previous work, Unequal in Life. It was an acknowledgement that many of the most disadvantaged communities identified in our earlier study were in fact strong communities with much higher levels of social cohesion than some much wealthier areas. Take Toorak in Melbourne, and Vaucluse in Sydney. Lots of wealth, but very high fences!

Following the release of this second report, Tony Vinson and I once again had extraordinary access to Federal Ministers and Shadow Ministers in Canberra in order to give personal briefings. At a state level we met personally with the Premier and the Treasurer in Melbourne and were very strongly supported by the Minister for Local Communities, John Thwaites.

In New South Wales, Tony and I presented to all the Heads of every State Government department for a full morning’s briefing. Not just Community Services, Health, Education and Justice, but also Treasury, Transport, Planning and so forth. It was a unique experience. We could not have had greater access to senior political representatives and their senior public servants and policy advisers across both Sydney and Melbourne.

I was also involved in managing the third stage of the postcode studies completed by Tony Vinson, the third report being published in 2007: Dropping Off the Edge, the distribution of disadvantage in Australia. This third report was a national study, extending beyond the scope of the two previous reports which covered Victoria and New South Wales alone. By this time, our work was getting very widespread recognition and use throughout the country. One area where this was so well illustrated was local government submissions for funding from the Federal Government. Another was that the available statistical data that we drew up was used by a broad range of non-government agencies in presenting their case for further financial support.

The report was launched in February 2007 in The Great Hall in Parliament House, Canberra. That location succeeded in ensuring the attendance of numerous Federal political representatives and again widespread and very balanced media coverage: print, television and radio across the country.

These postcode studies, which mapped the increasing concentration of social disadvantage in particular localities across the country, sounded a warning at that time. That is why the repeated, frustrated calls for a change in approach that I have been arguing for more than two decades should be reconsidered today. We need an approach that redirects resources from the construction and ongoing operation of a rapidly expanding prison estate. It needs to draw on the evidence, and to redirect a percentage of those resources to those communities that have been ‘mined’ more and more deeply by the instrumentalities of the criminal justice system. This is Justice Reinvestment.

In April 2021, to mark the 30th anniversary of the Royal Commission into Aboriginal Deaths in Custody, the Australian Labor Party announced the establishment of a National Justice Reinvestment Unit and an initial $79 million of funding for justice reinvestment sites around the country.

For the first time in recent history, this proposed initiative represents a possible beginning and a change in direction from the prison expansionary policies that have marked the last two decades in all States and Territories across Australia.

Let us hope that the future direction of the Australian criminal justice system will be founded on evidence and not on a misguided model based on our past as a penal settlement.

The future

My experience shows that positive, radical change can be achieved by listening, asking the right questions, being open to solutions that challenge conventional thinking and advocating fearlessly and effectively. But the job is never finished.

A significant change of direction is still required to turn around the international scandal of the mass incarceration of indigenous and other disadvantaged Australians.

It will not happen without a serious commitment from community leaders and political representatives. We will need to take risks, and there will be resistance from vested interests. But more of the same is simply not good enough.

The role of the community sector and its relationship to government is far more complex today, and there is less freedom and scope for non- government representatives to help bring about the required change.

It is not easy to be an advocate for the disadvantaged or for people with different forms of disability. At times it is lonely work. Those committed to such a task can be left quite isolated and unsupported at times.

We have learnt a lot about this in the recent campaign surrounding The Voice to Parliament.

It is critical that those individuals or organisations intent on bringing about policy change or working towards the defence of human rights establish networks of support to sustain such efforts in the medium to long term.

The Australian Fabian network is just such a network of support and encouragement and affirmation.

Peter Norden AO is an Honorary Fellow in Criminology at Deakin University. As a young graduate he established a half-way house for high-risk young offenders in 1977. He was later appointed Chaplain to Pentridge Prison (1985-1992), where he worked in high security settings. He then established the Victorian Criminal Justice Coalition in 1992 which acted as a Peak Lobby Group in Victoria for criminal justice reform. Peter is a member of the Australian Fabians Victorian branch executive. This article is a synopsis of: Seeking Justice in the criminal justice system in Australia (Norden, P, Norden Directions, 2021).