Final Report: Inquiry into Victoria’s Criminal Justice System

On Thursday 24 March 2022, the Victorian Parliament’s Legal and Social Issues Committee tabled the Final Report of the Inquiry into Victoria’s Criminal Justice System (the Final Report).  

The Final Report is over 900 pages, and includes 73 findings and more than 100 recommendations – it’s a lot to take in.  

VCOSS has produced this member briefing to highlight parts of the report that are relevant to the community sector, and opportunities for further engagement with the Victorian Government on criminal justice system reform.   

Why the Final Report matters 

Over the nine months of this Inquiry, the Legal and Social Issues Committee (the Committee) received 170 written submissions and conducted 50 hearings with more than 90 witnesses.  

The Final Report synthesises this engagement and provides a significant body of research, evidence and expert opinion on criminal justice system issues and opportunities for reform.  

Although the Inquiry was not commissioned by the Victorian Government, the Government is required to respond to the Committee’s Final Report within six months, including whether it supports any recommendations in the report.  

The Final Report at a glance  

The Committee Chair, Fiona Patten, notes in the Final Report’s foreword:  

“We need urgent work to improve the way we deliver justice in Victoria, to ensure our community safety, and to find modern solutions to reduce offending and reoffending.” 

She emphasises that to achieve this, government must be focussed on:  

• Support for victims of crime  
• Rehabilitation of offenders  
• Circumventing recidivism  
• Ending overrepresentation of Aboriginal people in prisons  
• Ensuring early intervention for Victorians experiencing disadvantage.  

Many of the Committee’s findings reflect insights and evidence from the community sector. The impact of the sector’s advocacy is clear.  

In particular, the Committee acknowledges the link between socioeconomic disadvantage and increased risk of criminalisation and victimisation, and makes a number of recommendations aimed at prioritising early intervention, and providing social supports to divert people away from the system.  

The Committee’s findings identify a range of factors that contribute to the risk of criminalisation and involvement with the justice system – including poverty, housing instability, trauma, discrimination, unmet health and social support needs, disengagement with education and employment.  

Many of the recommendations to respond to the findings are sensible – expanding on, coordinating and monitoring existing programs and services, such as: 

• Long-term funding for community legal assistance and health justice partnerships  
• Expanding youth programs in primary and secondary schools  
• Investment in community-based social, health, legal and forensic services that address risk factors for criminalisation. 

These recommendations complement and, if adopted by government, can build on the Early Intervention Investment Framework introduced in the 2021-22 State Budget, as well as the Crime Prevention Strategy and the common clients reforms. However, there are some areas of the report where we would have welcomed greater specificity, stronger action and/or a more ambitious systemic solution put forward in place of a programmatic solution. Some recommendations, while sensible, would not be sufficient to deliver the transformational change required to reorient the system from one that unnecessarily criminalises and incarcerates people and entrenches disadvantage and exclusion to an approach that prioritises building strong and safe communities and resilient community members.    

For example, with regard to crime prevention and early intervention, the Committee notes “placebased early intervention initiatives which are community designed and led, and which facilitate collaboration between schools, social support and legal services, can effectively address socioeconomic disadvantage compounded within a geographical area, with flow on benefits for young people.” This is an excellent observation.  

In response to this finding, the Committee recommends that the Victorian Government extend the Youth Crime Prevention Grants to enable community led placebased early intervention initiatives which are achieving demonstrable benefits to continue, and to expand access to the Grants Program to additional communities (r 7).  

We see this as a missed opportunity to recommend a more ambitious solution: the establishment of a justice reinvestment strategy. While the Youth Crime Prevention Grants are a great initiative, and we are not opposed to their expansion, justice reinvestment is a more transformative approach.  

Like crime prevention grants, justice reinvestment supports community-led initiatives and strategies that aim to address the underlying causes of crime and stopping crime from occurring in the first place.  However, a justice reinvestment approach goes a step further than grant-making for one-off projects. Under a justice reinvestment approach, partners (including government) make longer-term investments in long-term change. Decisions and action are underpinned by new forms of community governance and funding structures. There is a strong focus on communities owning and controlling data and using that data to determine which interventions will deliver the best social and economic return on investment for their community. 

In Victoria, a justice investment strategy could also establish systems to ensure that shared learning and evidence can be derived from place-based programs.    

Crime prevention can also be facilitated by introducing wellbeing budgeting. Internationally, in jurisdictions where a wellbeing approach has been introduced,  governments are required to clearly articulate specific social goals, match them with concrete targets and timelines, and publicly report on progress at set intervals. Adopting wellbeing budgeting in Victoria would assist the state to address risk factors for criminalisation at the population level.  

At the other end of the spectrum, we agree with the Committee’s findings that the period when a person leaves custody is challenging. Where there is a lack of support to reintegrate after a period of incarceration, this renders people vulnerable to homelessness, health, mental health and other crises and, in some circumstances, reoffending.  

The Committee makes sensible recommendations to increase funding to Corrections Victoria for pre-release planning prior to reintegration, and for community-based services to provide mental health, alcohol and other drug treatment, disability support, education and training, and culturally appropriate support, as well as reiterating support for the establishment of a “no exits into homelessness policy”, consistent with a key recommendation of the Committee’s Final Report of the Inquiry into Homelessness in Victoria.  

While increased funding for reintegration supports is critical, VCOSS also continues to support a recommendation by Coroner Hawkins that the Department of Health should have formal responsibility for improving the health outcomes of people leaving prison and should coordinate housing and other social supports (including Commonwealth funded supports such as the National Disability Insurance Scheme and Centrelink). This approach would ensure the continuity of care that is critical for successful reintegration and recovery.  

Some of the highlights:  

The Committee recommends to raise the minimum age of criminal responsibility to at least 14.  

We welcome support for this critical reform.  

The Committee notes that raising the minimum age of criminal responsibility is crucial to:  

• ensure that children who are too developmentally immature to be justly held responsible for offending are not criminalised  
• align Victoria with international norms and human rights standards  
• reduce the early engagement of children experiencing disadvantage with the criminal justice system and therefore their risk of further offending  
• help address the overrepresentation of Aboriginal children in the criminal justice system.  

The recommendation echoes that made by the former commissioner for Aboriginal Children and Young People in the Our Youth, Our Way report, and the findings reflect many years of sector advocacy, led by Smart Justice for Young People and the national Raise the Age campaign coalition.  

We welcome recommendation 11, which calls for greater investment in community-based services that respond to risk factors underlying children’s offending, including services that are culturally specific for Aboriginal children. Ensuring children can access therapeutic supports early is critical to preventing children’s involvement with the justice system.  

While we welcome this recommendation, we note that the Victorian Government has only committed – through the Meeting of Attorneys-General – to developing a proposal to raise the age of criminal responsibility from 10 to 12, in line with an agreement made at that meeting in November 2020. We agree with the Committee that not raising the minimum age to 14 is a missed opportunity to achieve the benefits the Committee has noted.  

The Committee acknowledges that women, Aboriginal people and people from culturally and linguistically diverse backgrounds are overrepresented in the criminal justice system, and recommends targeted interventions to address their unique risk factors.  

We note that in recommendations to address the overrepresentation of Aboriginal and culturally and linguistically diverse communities, the Committee has prioritised community-led and controlled approaches, which we welcome. 

Sector advocacy to address the overrepresentation of women in the criminal justice system is reflected in recommendation 13, to increase funding and support to social support providers offering therapeutic interventions for alcohol and other drug use, sexual abuse, violence and trauma to: 

• Expand their services to women voluntarily seeking help and reduce wait times to access services 
• Develop gender‑specific, trauma‑informed and culturally safe therapeutic services  
• Enhance connectivity, collaboration and referrals between social support providers 
• Ensure women are provided with long‑term holistic support by enhancing screening programs to ensure complex and multifaceted support needs are identified and addressed. 

Importantly, the Committee makes a recommendation to address the misidentification of female victim survivors of family violence as the primary aggressor in family violence matters. Currently, misidentification is leading to criminalisation, family separation, and withdrawal of support services. We welcome the Committee’s recommendation that all Victoria Police members undertake regular training in responding in family violence incidences, including the nuances of misidentification.  

Preventing the use of punitive responses to health and social issues  

The Committee acknowledges that criminalisation can occur due to Victoria Police regularly being called upon to assist people experiencing health and social issues, such as mental health crisis, homelessness, or behaviours associated with cognitive impairment or disability.  

VCOSS agrees with the Committee’s finding that Victoria Police are not trained or equipped to provide appropriate assistance in these circumstances. We welcome recommendations that the Committee has made to improve Police, court and custodial responses to matters involving persons with disability or cognitive impairment, including:  

• Reviewing disability policies, training and specialist roles, and capacity for members to refer to specialist support.  
• Improving access to the Independent Third Person Program (Victoria Police), the Intermediaries Program (courts) and specialist victim support services for people with disability. 
• Conducting a trial screening program that would assess all people entering custody (both on remand and sentenced) for physical, cognitive and intellectual disability, to inform reasonable adjustments and support in custody and on release. Screening for disability provides an important early intervention to engage community-based services as a more appropriate alternative to custody.  

We continue to support a recommendation first made by this Committee in the Final Report of the Inquiry into Homelessness in Victoria to develop and implement a protocol for Victoria Police and other enforcement agencies when responding to people experiencing homelessness, that prioritises a health and social response to people experiencing homelessness.    

However, while the Committee acknowledges that public order offences are also a contributing factor in the criminalisation of homelessness, no new recommendations to address this issue are made in the Final Report and the Committee instead anticipates the Government response to the Final Report of the Inquiry into Homelessness in Victoria.  

The Committee also looks to recommendation 10 of the Royal Commission into Victoria’s Mental Health System as the principal means by which to address the need for health system reforms to establish health-led emergency responses to people experiencing mental health crisis   

Other positive recommendations:  

• Recommendations 23, 24, 25 and 62, which all seek to increase the use and effectiveness of cautions and diversion, including facilitating access to appropriate community-based supports.  
• Recommendation 85: That the Department of Justice and Community Safety ensure that all incarcerated people – whether held on remand or serving a custodial sentence – in both publicly‑ and privately‑operated prisons, have access to forensic rehabilitation programs and supports which are aimed at addressing the factors underpinning their criminal behaviours. 
• Recommendation 48: That the Victorian Government redesign Victoria’s existing victim of crime services model in line with the model proposed in the Government‑commissioned Strengthening Victoria’s Victim Support System: Victim Services Review. This should be done in conjunction with the Committee’s additional recommendations around legal support and entitlements for victims of crime (Recommendation 44, 45 and 46). 

• Recommendation 57: That the Victorian Government consider amending the Residential Tenancies Act 1997 (Vic) to explicitly provide that a person cannot be evicted from a rental property for ‘illegal purposes’ if that person has not yet been convicted or sentenced. 
• Recommendation 61: That the Victorian Government continue to support the expansion of the Court Integrated Services Program to additional court locations including in rural and regional Victoria and increase funding to enable the program to meet increases in demand. 
• Recommendations 64, 65 and 66, which seek to expand on specialist courts including the Assessment and Referral Court, the Koorie Court and the Drug Court. 
• Recommendation 69, which seeks to increase uptake of community corrections orders for therapeutic outcomes.  
• Recommendation 71: That the Victorian Government amend the Sentencing Act 1991 (Vic) to require, for the purposes of sentencing, courts to take into consideration the unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples.  
• Recommendations 97 and 98, to establish a judicial recruitment process to ensure accountability, transparency and diversity amongst judicial officers.  

Some areas for further consideration:  

Critical housing and homelessness system reforms are yet to be delivered.  

The Committee note that many of the recommendations they made in the Final Report of the Inquiry into Homelessness in Victoria aimed at breaking the link between housing insecurity and justice involvement remain an urgent concern.  These include:  

• Adequate provision of transitional housing, housing support and legal assistance for people leaving custodial settings 

• Greater access to supported accommodation for people seeking bail  
• Adopting a “no exits into homelessness” policy for institutional settings including custody.  

These are important reforms that would protect people against homelessness when leaving custody and support people to reintegrate and recover from a custodial experience.  

However, while the Committee acknowledges that access to secure and affordable housing is part of an early intervention approach to reduce the risk of engagement with the criminal justice system, the Committee misses an opportunity to make additional recommendations that would support this approach – for example, we would have welcomed a recommendation to establish measures that can support a long-term pipeline of new social housing stock over ten years, leveraging Victoria’s nation-leading Big Housing Build, with a proportion of appropriate stock allocated for people at risk of or involved with the criminal justice system.  

A missed opportunity to reform harmful bail laws  

The Bail Act 1997(Vic) reforms introduced a reverse onus test, intended to capture serious, violence offenders. Instead, the changes have had a disproportionate impact on women who have engaged in low-level, non-violent offending, in particularly Aboriginal and Torres Strait Islander women, and people experiencing homelessness, and has resulting in an alarming increase in the number of people incarcerated on unsentenced remand.  

While the Committee recommends that the Victorian Government review the operation of the Bail Act (r 52), we think this recommendation does not go far enough.  

Consistent with a long-standing recommendation by the Victorian Law Reform Commission, our continued position is that the Victorian Government should repeal the reverse onus test and replace it with a presumption in favour of bail unless there is a specific and immediate risk to the safety of another person. 

For further information or to share your feedback, please contact: 

Deb Fewster 

Director Policy and Advocacy 

Email: Deborah.fewster@vcoss.org.au 

Karen Taranto  

Policy Advisor  

Email: karen.taranto@vcoss.org.au