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Build a fairer justice system


Build a fairer justice system

The Victorian justice system can do more to help people experiencing poverty and disadvantage. It can do more to divert people from the justice system and resolve problems before they escalate. An equitable justice system, when timely and affordable legal assistance is available to all, can help every Victorian resolve their legal problems and prevent them worsening.

Most people in prison have previously experienced several forms of disadvantage, including homelessness, abuse, drug and alcohol use, mental illness and unemployment.

Too often, people facing disadvantage end up in prison, instead of getting help at the right time. Victoria can do more to keep people out of prison and resolve the underlying issues leading to offending. Preventing people offending helps make the community safer and more secure for everyone.

Most people in prison have previously experienced several forms of disadvantage, including homelessness, abuse, drug and alcohol use, mental illness and unemployment.

“Few women in custody are serious violent offenders, most have caring responsibilities, many are the victims of violent relationships and offend under the influence of drugs or to support drug use.”[1]

Of those who serve time in prison, too many return repeatedly. Prisons can be a place to help offenders rehabilitate and transition effectively, with appropriate programs aimed at targeting the disadvantage that in the majority of cases, underlies offending. Prison is the most expensive response we have to criminal behaviour.[2] Alternatives to prison, such as diversion, cautioning and intensive community support programs can be more effective and less expensive than prison.

Victoria’s prisons now cost more than $1 billion per year, but increasing prison expenditure has not reduced crime rates or improved community safety.

Figure 4: Prevalence of legal problems, Victoria

diagram-prevalence-of-legal

Source information: C Coumarelos et al., Legal Australia-Wide Survey: Legal Needs in Victoria, 2012, p. 67.

Budget investments

Improve accces to legal assistance

The Victorian government can empower people to resolve their legal problems by investing more in community legal centres (CLCs).

Equal access to justice, when everyone receives adequate legal assistance and a fair hearing, protects human rights and reduces inequality. Legal assistance targeted as early as possible to people who need it, can resolve legal issues that otherwise lead to more problems and higher costs.

People facing disadvantage have a higher prevalence of legal needs. They experience legal problems more often, and may face multiple problems at the same time. They often cannot afford legal representation. People with disability, Aboriginal and Torres Strait Islander people, people experiencing homelessness and single parents experience legal problems at higher rates than the
general community.[3]

More than 80 per cent of people helped by CLCs earn less than $26,000 each year.

Addressing legal problems early can prevent them escalating into serious issues such as people losing homes through loan foreclosure, can prompt landlords to make reasonably required repairs, can protect women from violent partners, and challenge workplace bullying or discrimination.

However, a ‘justice gap’ is growing, between people able to recognise their legal rights and afford legal representation, and those who cannot. Too many Victorians forego their rights because they cannot access affordable, timely, appropriate legal assistance.

CLCs help people facing disadvantage or poverty, but who may not qualify for legal aid, mainly with civil and family law issues, including family violence. More than 80 per cent of people helped by CLCs earn less than $26,000 each year.[4]

Victoria has a strong CLC network providing location-specific generalist and specialist assistance. CLCs use on-the-ground experience to identify emerging issues and trends, and develop new ways of tackling disadvantage and unmet need. Twenty CLCs have duty lawyers for family violence intervention orders in 29 Magistrates’ Courts. They mainly assist victims to secure protection.

CLCs foster legal and non-legal service integration, such as the Eastern Community Legal Centre’s Family Violence Integration Project. Some work with health or maternal child health services to provide early, more effective support for women and children.

However, the legal assistance sector is under-funded and CLCs cannot meet the growing demand for their services. This is despite welcome Victorian government investment in the CLC Assistance Fund and family violence duty lawyer services. CLCs face a 26 per cent federal funding cut over the next three years.

A National Association of Community Legal Centres survey found 33,616 people were turned away from Australia’s 74 CLCs in 2012-13.[5]

The recent Access to Justice Review[6] recommended increasing state legal assistance funding, prioritising duty lawyer services, family violence legal services, Aboriginal legal services, and integrated service provision partnerships.

The Productivity Commission recommends closing “the most pressing gaps” with a national $200 million injection for civil legal assistance services.[7] It finds the Commonwealth can contribute 60 per cent, with the rest coming from state and territory governments.

Victoria receives about 23 per cent of national legal aid and community legal centre funding,[8] so meeting the Productivity Commission’s recommendation just for this “most pressing gap” would require the Victorian government to contribute an extra $18 million each year.

 

Provide ‘throughcare’ to people in prison

The Victorian government can help people avoid returning to prison by helping them find appropriate housing, healthcare and employment on leaving.

Unstable or inappropriate housing dramatically heightens the risk of people returning to prison soon after release. Less than two per cent of prisoners have access to designated transitional housing for the first year after release. Alcohol and drug treatment, mental health services and employment support help people transition safely and effectively back into the community.

Community support services can also start working with people well before they leave prison. In-prison support can transition into community support, providing stability for people leaving prison.

While the ReConnect program already supports outreach to serious offenders and people with high transitional needs, only a small number of people leaving prison can access this program.

 

Fund a Koori youth cautioning program

The Victorian government can divert young Aboriginal people from crime by funding a Koori youth cautioning project.

Aboriginal young people are about 11 times more likely to be under youth justice supervision than non-Aboriginal young people.[9] Cautioning can be used by police for less serious offending. It lowers the likelihood of repeat offending, especially when it involves referring young people to appropriate diversionary programs.[10]

Cautioning can be used by police for less serious offending. It lowers the likelihood of repeat offending.

A Koori cautioning pilot commenced in Morwell and Mildura in 2007. It worked to increase police cautioning rates for Aboriginal young people, and decrease future police contact rates using diversion strategies. The Victorian Aboriginal Legal Service followed up Aboriginal young people coming into police contact, to help divert them from the criminal justice system and link them with appropriate support.

The pilot concluded in 2008, resulting in a 45 per cent increase in cautioning in Mildura and a 32 per cent increase in Morwell.[11] Despite being a key initiative in the Aboriginal Justice Agreement Phase 3, the program has not secured ongoing funding or been expanded to other regions.

 

Provide women leaving prison with transitional beds

The Victorian government can help women leaving prison reintegrate into the community by providing them with transitional beds.

The Judy Lazarus Transition Centre provides beds for 25 minimum security male prisoners nearing prison release or parole eligibility. It helps these men reintegrate into the community with intensive case management, focusing on support for employment, accommodation, life skills and family relationships.[12] It reduces people’s likelihood of returning to prison and increases their likelihood of finding work.[13]

“The recidivism rate for people who have spent time in the Judy Lazarus Centre is about 10 per cent, compared to the overall rate of 44 per cent.”[14]

No similar facility is available for women leaving prison. Access to a transition centre would help women prepare for release, prevent reoffending and reduce homelessness and unemployment rates after release.

 

Fund organisations to help people with outstanding fines and debt

The Victorian government can help people with outstanding fines and debt by adequately funding community organisations to establish the Work and Development Permit program.

The Work and Development Permit program is being developed by the Victorian Department of Justice and Regulation. It allows people facing disadvantage to discharge outstanding fines and debt by volunteer work, or agreed programs, training and treatments. A similar scheme in NSW has been found to reduce reoffending, costs to government and feelings of stress and hopelessness among participants.[15]

The scheme involves community organisations acting as sponsors, helping to determine people’s eligibility, working with them to plan appropriate activities, and monitoring participation. However, VCOSS understands the Victorian plan does not include funding for community organisations to participate.

In NSW, Legal Aid NSW and the Aboriginal Legal Service NSW/ACT were funded to:

  • Produce information and education materials for potential participants and organisational sponsors
  • Advise people with fines and debt, and assist them to apply for the scheme
  • Promote the scheme and assist community organisations to register as sponsors.

The scheme will likely be more successful in Victoria if community organisations are provided funding to participate.

 

Expand the Drug Court and other problem-solving courts

The Victorian government can target the reasons people offend by expanding problem-solving courts. Problem-solving courts, or specialty courts, are designed to tackle specific problem behaviours, where traditional criminal justice responses have not worked. While models differ, problem-solving courts are often less adversarial and focus more on treatment and rehabilitation than punishment.

In Victoria, problem-solving courts include the Drug Court of Victoria, the Family Drug Treatment Court, Koori Courts and the Neighbourhood Justice Centre.

For example, the Drug Court in Dandenong sentences offenders with drug dependencies who have committed an offence under the influence of alcohol and drugs, or to support their addiction. It provides a collaborative, multi-departmental response to drug dependence and related crime. An evaluation of the Drug Court program found participants experience greater wellbeing and community connection, improving their chances of staying off drugs and alcohol, and substantially reducing their risk of reoffending.[16]

“The reoffending rate for [Drug Court] participants was 31 per cent lower within the first 12 months and 34 per cent within the first 24 months, than for the control group.”[17]

Most problem-solving courts in Victoria do not cover the whole state. The community can benefit from wider coverage and increased access to these court models.

VCOSS welcomes the recent expansion of the Drug Court to Melbourne, but Victorians living outside the Dandenong and Melbourne Magistrates’ Court catchments will still not have access to it.

Neighbourhood Justice Centre

The Neighbourhood Justice Centre (NJC) was established in 2007 and operates in the City of Yarra. It provides innovative ways of dealing with crime and other forms of social disorder, disadvantage and conflict in the local area.

The NJC works to create a more integrated, responsive and accessible justice system by engaging with the local community and addressing the underlying causes of offending.

Evaluation showed NJC offenders are less likely to reoffend than people appearing before other courts, have higher completion rates of community-based orders and unpaid community work, and greater confidence in the justice system.[18] The crime rate in the Yarra area dropped 12 per cent in the two years after the NJC commenced operation, making the whole community safer.

Further strategies

Develop a justice reinvestment crime prevention strategy

The Victorian government can address the underlying reasons people commit crime by adopting a justice reinvestment strategy. Justice reinvestment empowers communities experiencing disadvantage to find local solutions to the economic and social risk factors behind offending.

Most of Victoria’s prisoners have experienced significant disadvantage, including poverty, homelessness, intergenerational trauma and long-term unemployment. They are more likely to have an acquired brain injury, cognitive disability or serious mental illness. They are more likely to come from communities experiencing entrenched disadvantage. Half of all Victorian prisoners come from 6 per cent of Victorian postcodes.[19]

“63 per cent of male prisoners and 45 per cent of female prisoners were unemployed at the time they entered prison.”[20]

“Six per cent of male and 14 per cent of female prisoners finished high school.”[21]

A whole-of-government justice reinvestment crime prevention strategy can bring together work to reduce crimes involving family violence, as well as child protection, diversion programs and community engagement.

Addressing these disadvantages can prevent crime and reduce recidivism. Adopting a justice reinvestment approach can reduce offending rates, reduce spending on prisons and keep communities safer.

A whole-of-government justice reinvestment crime prevention strategy can bring together work to reduce crimes involving family violence, as well as child protection, diversion programs and community engagement.

Raise the age of criminal responsibility from 10 to 12 years

The Victorian government can prioritise supporting children’s development by developing age-appropriate justice system responses to child offenders, and raising the minimum age a child can be charged with a criminal offence to 12 years.

Neurologically, children under the age of 12 are yet to sufficiently develop the social, emotional and intellectual maturity necessary for criminal responsibility. Child offenders under 12 are likely to have experienced entrenched disadvantage, abuse and neglect, which links to their offending behaviour. Involvement in the criminal justice system at a young age can lead to further harm and repeated criminal behaviour, and can be a missed opportunity to intervene to address the underlying reasons for the child’s offending.[22]

Raising the minimum age of criminal responsibility to 12 years would bring Victoria into line with United Nations (UN) recommendations. The UN advocates for an absolute minimum of 12 years and supports a higher age of 14 or 16 as being a more suitable response.

Legislate to enshrine diversion for young people

The Victorian government can help steer young people away from the justice system by guaranteeing the youth diversion program long-term, and enshrining this in legislation. Youth diversion programs help young people address the underlying causes of their offending, by tackling issues including substance use, mental ill-health, educational disengagement and training.[23]

VCOSS welcomes the state government’s $6.7 million investment in expanding the youth diversion pilot program statewide. The pilot program, operating in seven Victorian courts, has received consistently positive feedback from Victoria Legal Aid, police prosecutors and the broader court network, with 94 per cent of participants successfully completing the program. Early findings indicate many positive effects for young people, including improved engagement in education, improved mental health, and better employment prospects.[24]

However, Victoria remains the only state without a legislated court-based youth diversion scheme. Legislating the scheme would provide greater certainty for the program.

Introduce recidivism reduction targets

The Victorian government can help prevent people reoffending and returning to prison by setting a target of reducing the reoffending rate by 15 per cent. Reducing high reoffending rates requires improved rehabilitation programs for people in prison, and improved reintegration support for people leaving prison.

Victoria’s recidivism rate is high, and is increasing. 2014-15 figures showed 44 per cent of people released from prison returned within two years, up from 34 per cent five years earlier.

Committing to a target to reduce reoffending provides transparency and accountability, encourages a collaborative approach across government and helps maintain the momentum for change. Other jurisdictions have been successful in reducing reoffending after

introducing recidivism targets. For example, New Zealand is on track to meet its public target of reducing reoffending by 25 per cent by 2017, achieving an 11 per cent reduction between 2010 and 2014.

Progress the Access to Justice Review

The Victorian government can help people resolve legal problems and close the justice gap by making it easier for people to get legal assistance.

In particular, VCOSS welcomes the Access to Justice Review’s recommendations to close the funding shortfall for legal assistance services and to expand collaborative partnerships between legal and community sector organisations. Health-justice partnerships are an example of this kind of integrated approach to service delivery, seeking to jointly tackle both legal and health and wellbeing issues.

Community sector submissions to the review highlighted the large numbers of people unable to access legal assistance services, and the need for targeted services for priority populations, including Aboriginal and Torres Strait Islander people, rural and regional Victorians and people with disability.

Provide alternative avenues for resolving disputes and complaints

The Victorian government can help people resolve disputes and complaints and protect their rights by expanding ombudsmen and alternative dispute resolution schemes. Industry ombudsmen, and other external dispute resolution processes, resolve people’s complaints with low-cost, informal pathways.[25]

These schemes can be expanded to industries with limited access to dispute resolution, such as Vocational Education and Training, taxis and retirement housing. In its submission to the Review of the Residential Tenancies Act 1997, VCOSS recommended the introduction of a Housing Ombudsman to mediate disputes between tenants and landlords.[26]

The Victorian complaints landscape is complex and confusing. Many people are not aware of ombudsmen and dispute resolution schemes, and how to access them.

“Less than 40 per cent of people surveyed said they would bring a complaint to the Ombudsman.”[27]

The government can assist with investment to provide resources that help people understand the operation of these schemes, and pathways for accessing them, at the times they are most likely to experience problems.

 

[1]      Victorian Ombudsman, Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria, September 2015, p. 2.

[2]      Ibid.

[3]      C Coumarelos et al. Legal Australia Wide Survey; legal need in Australia, Law and Justice Foundation of NSW, 2012, p. xxiii.

[4]      Community Law Australia, Unaffordable and out of reach; the problem of access to the Australian legal system, 2012.

[5]      National Association of Community Legal Centres, Memorandum to the Productivity Commission: Access to justice arrangements inquiry, December 2013.

[6]      Department of Justice and Regulation, Access to Justice Review: Summary report, September 2016, p. 38.

[7]      Productivity Commission, Access to Justice Arrangements, Inquiry Report Overview, 2014, p. 741.

[8]      The Allen Consulting Group, Review of the National Partnership Agreement on Legal Assistance Services, Working paper two: Evaluation of legal assistance services, p. xiv and p. 22.

[9]      Australian Institute of Health and Welfare, Victoria; youth justice supervision in 2014-15, 2016.

[10]    Jesuit Social Services, Thinking Outside; Alternatives to remand for children, 2013.

[11]    Victorian Aboriginal Legal Service, Practical Recommendations for Diversion, March 2016.

[12]    Victorian Ombudsman, Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria, September 2015, p. 126.

[13]    M and P Henderson and Associates, Evaluation of the Judy Lazarus Transition Centre; Final Report, 2009, p. 4.

[14]    Victorian Ombudsman, Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria, September 2015, p. 127.

[15]    NSW Law Reform Commission, Penalty Notices Report 132, 2012, p. 9.

[16]    KPMG, Evaluation of the Drug Court of Victoria; Final Report, prepared for the Magistrates’ Court of Victoria, December 2014, p. 4.

[17]    Ibid.

[18]    Department of Justice, Evaluating the Neighbourhood Justice Centre in Yarra, 2010.

[19]    Catholic Social Services and Jesuit Social Services, Dropping off the Edge 2015, 2015.

[20]    Victorian Ombudsman, Reintegration and Rehabilitation of prisoners, 2015, p. 32.

[21]    Ibid, p. 150.

[22]    Jesuit Social Services, Too much too young: Raise the age of criminal responsibility to 12, October 2015.

[23]    Smart Justice for Young People, Diversion factsheet, July 2014.

[24]    Jesuit Social Services, To address youth offending, we must look to the evidence of what works, 25 July 2016.

[25]    Productivity Commission, Access to Justice Arrangements Overview Report, September 2014, p. 11.

[26]    Victorian Council of Social Service, Regulation of property conditions in the rental market; Submission to the issues paper for the Residential Tenancies Act 1997 review, 2016.

[27]    Victorian Ombudsman, Annual Report 2014-15, p. 21.

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