The indicators of women’s representation we should be worried about

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L-R Jill Prior, LACW, Magistrate Ann Collins, Elena Campbell, Facilitator and author of blog

This International Women’s Day, we will either sigh or celebrate over the progress in women’s representation across important institutions. ASX listed companies, the law, political life – we will interpret the number of women in these spheres as an indicator of how far we have come on the road to genuine equality.

There is one institution, however, in which women’s representation is rapidly rising. Across Australia – and, specifically, in Victoria – the number of women inside our correctional institutions has been on the rise for some time.

Rather obviously, this indicator is no cause for celebration. It does not tell us how many women commit crime, but instead shows us how many women the community has failed. Study after study has shown that the vast majority of women in any prison have been victims of family violence or sexual abuse, either as an adult, a child, or both. Often this experience propels women into poverty; homelessness; loss of children to out of home care; mental illness; or drug and alcohol addiction – all things we now understand can be drivers for offending.

What is less understood is that the violence that women experience can be a direct driver for criminalisation. Women can be coerced or threatened into offending or assume culpability for their partner’s offences. Women can be arrested for other, unrelated matters due to their poverty and homelessness when they call for police assistance. Women can also be wrongly identified as the primary aggressor at a callout – collateral damage of a zero tolerance approach intended to protect victims, not imprison them.

This week the Centre for Innovative Justice and the Law and Advocacy Centre for Women (LACW) invited an audience to hear from women with the grace to share their lived experience of this trajectory. The audience also heard from a LACW lawyer and a Magistrate who confirmed that they saw this story played out time and again in clients, or in parties before a court. The audience was privileged and devastated to hear accounts of how gendered violence can put women on a direct pathway from victim to criminal, and the repercussions that play out for rest of their lives.

This trajectory is well known to those who have worked with criminalised women for decades. Yet too often, it is not heard in court. Our system is still largely designed only to see the offence, not the offender. It does not always ask and women are often too afraid or ashamed to tell. Women can be arrested, charged, prosecuted and convicted without their experience of victimisation, and its compounding effects, relayed.

Meanwhile, recent reforms to bail and sentencing laws – ironically designed largely in response to acts of extreme violence against women – mean that more women are on remand than ever before. Sentencing options, too, have been curtailed. This means that women charged with a first offence can be just a few steps away from a custodial sentence if they’re unable to comply with other orders of the court.

And compliance with court orders can be incredibly difficult for women who are homeless; who have a mental illness or drug and alcohol addiction; or who have a cognitive impairment or Acquired Brain Injury, including as a result of the violence they have experienced.

Meanwhile, women funnelled along this violence to prison pipeline will too often be released into homelessness and without any support – despite all the programs we profess to offer. Women in this situation are then even more vulnerable to violence; offending and sometimes to loss of life.
This pipeline has devastating effects not just for the women concerned, but for their children who, once removed, are more vulnerable to violence or offending themselves. This means multiplying costs to the community down the track.

Yet the solutions are not rocket science. The provision of appropriate support; proactive justice interventions; safe and stable accommodation – all these cost less than it does to build more prisons. What’s more, they have far more positive results.

This International Women’s Day, we should examine all the meaningful indicators. Whether or not there are more women in ASX listed companies, the rising number of women in our prisons is a flashing light on the dashboard that something is seriously wrong. It means we have failed to respond appropriately to gendered violence; that we have failed to perceive the compounding impact of a gendered justice response.

Given what we know about the drivers for women’s offending, a truly positive measure of our progress towards gender equality will be if we can eliminate the need for a women’s prison at all.

Elena Campbell
Associate Director – Research, Advocacy and Policy
Centre for Innovative Justice

Towards a multidisciplinary future: Giving vulnerable clients what they want.

MDP 2By Kat Ogilvie, Social Worker, CIJ

It’s well known that people rarely present with an isolated legal issue. Legal issues are often intertwined with associated social issues, such as mental health issues, economic disadvantage, family violence, tenancy instability, homelessness, physical health, relationship breakdown, just to name a few. Modern services need to become more responsive to the complex situations that people present with.  Just as people don’t have neatly carved out issues, professions can’t have nearly carved out roles.

The movement towards services that look holistically beyond a single issue (known by many names, such as multidisciplinary practice, integrated practice, or health justice partnership) have been highlighted recently in forums such as National Association of Community Legal Centres (NACLC) conference, where countless presentations outlined successful partnerships between lawyers and social workers leading to better outcomes for people with legal and social support needs.

Importantly, discussions in these forums also focussed on the need for awareness of trauma informed practice for all professions working with people who have complex issues, in order to work holistically, not just addressing the presenting symptoms. Trauma informed practice also addresses the need for self-care and debriefing and an awareness of vicarious trauma for all that work with vulnerable people.

A number of developments this year have confirmed the increase in awareness of the importance multidisciplinary approaches, such as RMIT’s new dual qualification Master of Social Work/Juris Doctor. There is a slow but steady change in focus to placing the vulnerable people needing support at the centre of what we do, rather than asking our clients to fit in with the needs of the professionals providing a service to them.

The Mental Health Legal Centre’s Inside Access program supports women in prison and ensures that women exiting prison receive holistic support, addressing both legal and social support needs. More and more community legal centres are incorporating a social support element in their practice, particularly those with family violence or housing/homelessness programs.

There are many benefits to a multidisciplinary/integrated/partnership approach to supporting people with legal and health/social support needs. A few of the many benefits include:

Being responsive to the needs of vulnerable people. Sometimes a positive legal outcome for someone is addressing little more than the tip of the iceberg. Any ongoing underlying issues will continue to have a pervasive influence on client’s life.  We also know that people may not identify their problem as ‘legal’ in nature, so having multiple workers with various skills involved can help to identify issues and identify them early! The approach also stops people trekking from agency to agency, which increases risk of people falling through the cracks. Furthermore, trust gets established with certain agencies, so people are more likely to stay engaged with the service.

Skill match. Social work and lawyers have complementary skills and perspectives which ultimately leads to better outcomes for people using their service – social workers are taught to look through a structural lens, to look at systemic oppression, not just individual deficits. Lawyers are trained to solve the individual’s legal issue. Lawyers can be said to advocate for a person’s stated interests which may not necessarily be their best interests; where social workers can try to establish what is in the person’s best interests, taking into account their holistic circumstances. When these professions work together, we can find a more balanced approach.

Smarter ways. Approaches that look to provide holistic support to people for legal and social support needs will lead to timely identification of issues, which reduces the number of times people have to present to different services. This is a smarter and more cost effective way of working, leading to more long-term preventative solutions.

Professional Growth. A multidisciplinary approach means more professional satisfaction for those working in partnership. Social workers learn important skills around navigating the legal system and use of legislation. Lawyers can learn about the importance of self care, debriefing, supervision, trauma informed practice and ways of working with people experiencing emotional distress.

Ultimately, the two professions have a common grounding in social justice. The Australian Association of Social Workers’ Code of Ethics outlines that social work is committed to three core values: Respect for persons; Social justice; Professional integrity. The fact that social justice is one of social work’s core values means that community lawyers and social workers are fundamentally aligned in this quest.

However it’s not all rainbows and lollipops and of course any new way of practicing and bucking tradition has its challenges. Some of these are outlined here:

There can be a risk of ethical conflicts, where lawyers may feel strongly about legal professional privilege and confidentiality, as well as their duty to the legal system. One context where these issues may arise is in the family violence space, where the safety of children may be a consideration. Lawyers and social workers have different reporting obligations and risk thresholds. In Victoria (in 2017), social workers are not mandatory reporters to Child Protection by virtue of their profession, however social workers may choose to report because of an ethical obligation, or because of organisational requirements of their employer. There are also important considerations around files and note taking – social work file notes can be subpoenaed (it’s not common, but it does happen), whereas legal notes cannot. For this reason, how files are organised will be a consideration.

The different approaches that are sometimes employed by each profession can be a challenge. For example, lawyers are often seen as problem solvers and social workers seen as ‘talkers’ and working the problem out over time, with an emphasis on building relationships. The legal profession can be at times siloed by nature and find it easier to co-exist with social workers, rather than to truly integrate. Further, how to prioritise the various aspects of the client’s issues can cause a tension – does the legal matter take precedence over other issues like the person’s acute mental health issue?

Another ongoing challenge is around professional Identity. Social workers are notorious for not being able to articulate what they do, or often lack confidence in asserting their expertise. There could be a lack of training, especially for lawyers, around engaging with other professions. There could be perceived hierarchies and power imbalances between the two professions. Some studies into the area of lawyers and social workers working together report a lack of mutual respect for the other profession, which can lead to an under-appreciation of workers from other professions, which can lead to under-utilisation of experience and expertise.

Earlier this year, at RMIT’s Juris Doctor 10th anniversary event, Bevan Warner, Victoria Legal Aid’s Managing Director, spoke about the partnership between lawyers and social workers. He noted the differing priorities of the professions; social work prioritises relationships, the law prioritises rights; social work demands engagement with the personal while the law requires depersonalisation. Bevan stressed that each profession has an ethical obligation to learn and understand more about the other, to ensure there is respect and an abiding curiosity for each with the other – to be a “social justice force to be reckoned with!”

There are some simple ways to overcome some of the challenges of a multidisciplinary approach to supporting people with legal and social support needs. Some small but important steps that services can take to smooth over tensions that inevitably arise where passionate professions partner together. Some of these include:

Establish a clear model for navigating the professional relationships with appropriate protocols. This takes planning, discussions, commitment and creativity. All players involved need to develop shared goals and expectations and constantly re-assess how the model is going, importantly incorporating feedback from people using the service. It’s important to make sure that staff at all levels in the organisation need to be on board as it’s ultimately a change management process. A non-hierarchical attitude is beneficial here, services could consider a no ‘lead’ discipline when working with vulnerable people, focussing on the person and what they need.

Developing a culture of open and regular communication. Clear and good communication is key – both with service users and between professionals. These are ongoing relationships that need nurturing.

Respecting each other’s specialised knowledge/professions. This can be achieved through training around the different professions, fostering mutual respect and a partnerships of equals. Including seeing beyond stereotypes and developing clear position descriptions. Set up an organisational culture of respect.

Multidisciplinary practices are here to stay, they are the way of the future for working with vulnerable people. As a sector, we need to find a way to best work together, embrace the challenges and bask in the benefits and most importantly provide the best service that we can for people that too often get stuck on a referral roundabout, or fall through the cracks of siloed services.

People receiving a service often don’t care what profession is helping them, as long as they are getting their needs met! Lawyers in a health setting, or social workers/youth workers/advocates/case workers in a legal setting, whatever it is called and wherever it happens, it’s time for smarter ways of supporting the people that need multidisciplinary approaches the most.

Integrating the indefensible.

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by Elena Campbell,  Associate Director, Research, Advocacy and Policy

The Victorian Government recently announced a new authority to oversee the management and supervision of serious offenders upon release. The reform stems from recommendations by the independent Harper Review which, when fully implemented, will go a long way towards improving our response to serious crime.

Certainly, there is room for this improvement across the board. Despite overwhelming evidence that sending more people to prison does not make us safer – that investing in health, education and social supports does more to prevent crime – we fall back on costly, punitive approaches which entrench criminal tendencies.

Despite the fact that we still know comparatively little about patterns of offending or the risk that individual – rather than typologies of – offenders might present, we persist in classifying them according to category, then wonder why they do not perform to type. We also fail to take account of other serious offending, such as longstanding violence against family members. So normalised is the experience and use of family violence amongst certain offender populations that it becomes perversely invisible to a system which needs to know.

Further, despite evidence that most (but certainly not all) who commit heinous crimes existed on the margins, we cling to the objective of re-integration following release. We cross our fingers and hope that the limited supports our system provides will be sufficient for offenders to establish a life in the community when some may have never been established or ‘integrated’ in the first place.

This task of re-integration – or simply integration – is the missing piece in the equation. As the Review itself noted, the reforms it has recommended will only achieve so much while they remain disconnected from what happens in the community. Social supports; employment; education; and positive social networks are just as crucial – including the capacity of an offender ‘to be viewed as a reformed…person by …the community’.

After all, it is in the community that an offender’s criminal tendencies have developed, though they may be honed in custody. It is in the community that an offender might start to envisage a different way to live. It makes sense, therefore, that the community bear some responsibility for the work to reintegrate – or simply integrate – people who have been so firmly on the outside.

Evidence points to the direction in which we should head, with studies confirming the value of practice which, amongst other things, intervenes early in an offender’s contact with the justice system; assesses and responds to ‘spikes’ in risk; is tailored to individual needs; involves multi-agency collaborations; fosters pro-social relationships; and provides a stable, ongoing contact in a client’s life.

A small number of dedicated community services – in Victoria and interstate – work to model this pro-social behaviour; to foster positive networks and provide this stable contact. This includes through case worker support for extended periods upon release, often functioning as the only continuous relationship for an otherwise isolated individual. It also includes provision of Circles of Support and Accountability – a group of trained volunteers who meet with an offender to encourage positive behavior and monitor any risk. Multiple studies have shown this to be effective in reducing reoffending and improving integration.

With the establishment of the new Authority, however, comes an opportunity to identify what more we can be doing as a community – to be recognising that this responsibility should be more substantially supported and shared.

This is a contentious suggestion. Nobody wants to think about the brutal offending of a hardened few. Nor do many wish to think about what is needed to reform these individuals because to do so is complex, protracted and exhausting. It is far easier and simpler to think about them safely locked away – unable to commit further crime purely because they are in a custodial environment.

With the exception of a limited few, however, most of these offenders will eventually be released. Unless we lock more and more people away at greater and greater expense, we cannot just wash our hands once someone is in the system and out of view. Nor can we expect government or the legal system to carry the entire burden, as the Harper Review rightly noted.

As unpalatable as it may seem, the community needs to step up. From the moment an offender has contact with the system we must start thinking about the task of integration, and allocate resources and energy to it. We must get smarter about understanding what drove people to offending – not to make excuses, but to understand the risk they may continue to pose and how it may be reduced. We must work out how to integrate often seriously damaged people who have caused so much damage themselves – if only to prevent them from causing it again.

 

Review: ‘The Storyteller,’ a co-production between prisoners in the Dame Phyllis Frost Centre and Somebody’s Daughter Theatre Company

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By Defah Dattner, Master of Social Work student

The Dame Phyllis Frost Centre (DPFC), women’s prison sits within the flat endless landscape of outer Melbourne where the last remaining gum trees hold on to the edges of creek beds rapidly being replaced by freeways, new suburbs and…prisons. Inside the walls of DPFC last night, a little bit of magic took place amongst tight security and a mixed audience of dignitaries, family, justice sector employees and prison staff. Somebody’s Daughter Theatre Company, and the women of the DPFC collaborated to create what can only be described as remarkable musical theatre, accompanied by a pre-show art exhibition.

The production which was titled ‘The Storyteller,’ allowed for a unique insight into the intimate and personal experiences of the women at DPFC. It is not possible in so few words to do justice to the efforts, talent and open-hearted performances of the women on stage. The main narrative guided the audience through the individual journeys of the women’s lives; from homelessness to sexual exploitation, unwanted pregnancies and family breakdown, escalating debt, mental health challenges and addiction. The underlying theme was one of loss and grief.

The women conveyed their feelings of disconnection from their innocent childhood selves, where, as young girls they had all the same life dreams as any of us. They then guided the audience through their difficult journeys to incarceration, highlighting the intersections of crime and justice, discrimination and disadvantage.

An often, at once funny and emotional performance involving an array of story-telling methods, including the infusion of diverse cultural and spiritual practices, was underpinned by a critical and honest portrayal of the realities of being homeless and relying on crime to survive. The evening was not without political messages which were consistently woven throughout the narrative. Their meanings were clear, and presented the perspectives of those impacted by the ineffectiveness of social policy, and politicians who are ‘out of touch’ with the needs and lives of those living on the streets.

The play told a story of a mayor who was conflicted about her soon-to-be-announced infrastructure policy and the lack of consideration for the impact on homeless people’s lives. The mayor, very distressed, at one point walks out of a media interview and finds herself cold and confused sitting on a street corner. An elderly homeless woman places her blanket around the shoulders of the mayor who open’s her eyes to the women around her who all have voices and opinions to add to the debate.

In the final scenes of the play, the women find solidarity in their collective stories, and through more songs, rap, monologues and poignant disclosures of hardship they convey their ultimate strength, hope and vision for their futures as residing in their connection to the land and each other. The play was rich with symbolism, irony and above all, showed the very real experiences of these women and their individual stories of courage.

Drug Law Reform

Drugs on Dark

by Stan Winford, Associate Director, Research, Innovation and Reform.

Since the mid-80s—on paper at least—Australian drug policy has been based on the principle of ‘harm minimisation’. Harm minimisation is an overarching framework, intended to guide drug policy responses to the harmful use of licit and illicit drugs. Set out in the National Drug Strategy, the framework is underpinned by the ‘three pillars’ of ‘supply reduction’, ‘demand reduction’ and ‘harm reduction’. Supply reduction refers to law enforcement activity aimed at reducing the supply and availability of drugs.  Demand reduction encompasses treatment services and preventative strategies that aim to prevent or delay the uptake of drugs, or stop or reduce drug use once it has commenced. Demand reduction is usually thought of as a continuum that ranges from prevention and education through to treatment interventions for people who use drugs. Harm reduction, the third pillar, accepts that despite the existence of the other two pillars drug use occurs, and aims to reduce its harmful consequences.

Harm minimisation should reflect a balance of all three of these approaches. This all makes sense: drug-related harms occur in a variety of contexts, so responses need to be multi-faceted. The reality, however, is that each of the pillars attract vastly different levels of funding and support. In Australia, approximately 66% of funding is spent on law enforcement activities. Spending on treatment attracts 21%. Only 9% is spent on prevention, with just 2% spent on harm reduction. Harm reduction is the poor cousin, while supply reduction takes the lion’s share, despite little evidence of its success.  In fact, while ‘record seizure’ announcements are made with increasing frequency—with police and customs proudly displaying the ‘massive drug haul’ at photo opportunities engineered to demonstrate their successes and return on investment for government—recent studies indicate that Australia has one of the highest usage rates of illicit drugs in the world, with methamphetamine usage in particular experiencing strong growth, and price and availability suggesting an illicit drug market without significant supply side challenges.

Harm reduction strategies, by contrast, seems to be withering on the vine. Some argue that as long as harm minimisation policy remains lop-sided, harm reduction will be undermined by the focus on enforcement. There are those who also argue that enforcement and supply reduction activity is becoming a source itself of substantial drug-related harm.

There are many examples which can be cited in support of this argument. One such example is the use of drug detection dogs in nightclub precincts or at music venues. Such highly visible policing operations have followed well-publicised incidents of drug-related harm such as multiple overdoses and emergency admissions to hospitals associated with particular events or venues. To what extent is the use of dogs reducing drug-related harm? One might think that they may serve as a deterrent, reducing the overall use of drugs and prompting drug users to decide the risk of apprehension outweighs the benefit of a high. Research involving drug users, however, indicates that they are employing a range of adaptive responses to avoid detection which themselves may be particularly risky and lead to additional adverse health impacts. Drug users have described resorting to ‘gobbling’ or rapid consumption of large quantities of drugs, pre-loading, inherently dangerous methods of drug carriage and concealment practices including bodily secretion.

Another example, critiqued along similar lines is the intermittent use of police operations in drug ‘hot spots’. These operations often follow media coverage of complaints about loss of amenity associated with overt dealing: disturbingly drug-affected people on the streets, discarded needles, and overdoses.  The police responses are intended to disrupt street-based drug-related activity, targeting street-level drug trafficking and use. They often cause a cessation of activity in a location for a period of time. However, the adverse effects for drug users can include impeding access to important health and other social supports, such as needle exchange programs. Intense policing activity in the form of temporary operations can also break links built carefully by street-based outreach support and treatment referral services. These are aimed at transient populations, such as people experiencing homelessness, and are designed to intervene in devastating cycles of disadvantage associated with drug use. Such policing activity may also be counterproductive from a supply reduction perspective. One effect is the displacement of drug trafficking activity to other locations, creating new challenges for monitoring and enforcement of drug related crime. This displacement effect may also undermine planning and resource allocation for harm reduction programs and services and local targeted initiatives.

Another phenomenon which some say can be directly traced as a response to supply reduction strategies is the emergence of new psychoactive substances such as so-called ‘synthetic’ drugs in existing drug markets. ‘Legal highs’ such as the synthetic cannabinoid ‘spice’ began to emerge, and many variations followed after regulators responded. The appearance of other psychoactive substances such as NBOMe as analogues for more well-known illicit drugs such as LSD in response to changes in regulation, price and availability adds to the suggestion that some forms of supply reduction activity may function as a stimulus for the rapid evolution of the drug market. Changing patterns of use are also seen in response to enforcement strategies. In 2016, a NSW Ombudsman report indicated that some drug users were switching consumption from MDMA/ecstasy to GHB—a colourless and odourless drug which is difficult for users to accurately dose, and has been linked to many overdoses—purportedly because they believed it was harder for drug detector dogs to detect. Finally, some argue that increasing potency of some illicit drugs is a response to the need to reduce the risks and cost associated with the movement of larger quantities of drugs between manufacturer and consumer. In short, these unintended consequences of supply reduction strategies are thought by researchers to represent responses of drug users and drug markets to variations in regulation, availability and detectability of alternatives.

Whether these concerns are warranted is difficult to assess, since the debate about the most effective way of responding to drug-related harms tends to be one-sided.  Just as certain supply reduction strategies are pursued uncritically in the face of mounting evidence of failure, claims about their arguably counterproductive consequences for some reduction strategies are rarely examined in the cold light of day. The overwhelming focus on law enforcement inhibits meaningful public conversations about harm reduction. Because politicians and police—and particular elements of the media to which they respond—are so focussed on sending an unequivocal message about the harmfulness of drugs, it seems impossible to publicly admit that people continue to use drugs and that things can be done to reduce harms associated with drug use. This nuance, apparently, is not compatible with the message which must be sent, and the perceived political risk of deviating from it. Any possibility of a response to drug-related harm that acknowledges the fact that people continue to use illicit drugs is ruled out both rhetorically and practically.

This also means that new measures designed to reduce harm can be quickly discounted despite compelling evidence and widespread community support. Medically supervised injecting rooms are a good example of this phenomenon. There are now more than 100 of these facilities in existence around the world, and positive evaluations provide evidence that they reduce overdose-related deaths, connect drug users with support and treatment where needed, and reduce the spread of blood borne viruses such as hepatitis. There is no evidence that they lead to an increase in crime or drug use in and of themselves. In Victoria, a recent coronial inquest into an overdose death in the Richmond area following a spate of similar deaths led to a recommendation that a medically supervised injecting facility be established. A coalition of local supporters including ambulance and firefighters’ unions, local traders and community members and councillors called on the State government to establish such a facility. A private member’s bill has been introduced into the Victorian Parliament. The possibility has nonetheless been ruled out by the Victorian Government. There remains only one such facility in Australia, established in Kings Cross in 2001.

Similarly, governments in Australia could begin testing drugs as part of a drug monitoring system aimed at reducing harm and increasing safety. Despite numerous calls and the success of programs in Europe and the United Kingdom, properly implemented ‘pill testing’, which studies have shown can reduce drug-related harms and change patterns of use in a positive way has failed to attract support from Australian governments. Part of the reason for the reluctance to allow for the possibility of ‘pill testing’, once again, is the problem authorities seem to have with communicating a message that involves harm reduction. How can we support testing drugs to make their use safer, they say, when our message is that people should not use drugs because they are unlawful? Instead, the unsubtle imagery used in public education campaigns is that of grotty clandestine labs and unhygienic chemistry involving solvents and drain cleaner. In fact, police have information about the composition of seized and forensically tested drugs, but it is not made available to the public in ways which could change patterns of consumption, and reduce harm. To try to do so in the absence of official support, communities of drug users have established their own early warning systems, posting images of pills and descriptions of their composition and effect.

This unwillingness to address harm reduction also means that little heed is paid to the voices of people who actually use drugs, and what might change their behaviour. While public policy innovations like ‘nudge theory’ are beginning to influence approaches in other contexts, governments maintain an entirely unsophisticated approach to service and program design when it comes to harm minimisation. For example, one strand of the opposition to ‘pill testing’ proceeds on the premise that drug users are too unsophisticated to distinguish between information warning them about the chemical composition of a drug they plan to consume and will read testing as a green light for drug use. In fact, there is research evidence to demonstrate that this is clearly not the case, and plenty of evidence that could underpin a more effective response if only there were the will to do so.

Meanwhile, a wilful blindness, officially, to the reality that drug use occurs in prison amongst prisoners is partly to blame for the absence of needle and syringe programs in Australian prisons. Prison needle and syringe programs are endorsed by Australian health and medical peak bodies, as well as global bodies like the WHO, UNAIDs and UN office on Drugs and Crime. This state of affairs presents a significant public health risk, since almost all prisoners eventually return to the community. There are some promising signs in some Australian jurisdictions that this may change, with the ACT government in particular expressing support for a trial. On the other hand, other examples suggest that it might not be wise to hold our breath. The extraordinarily drawn-out struggle of Victorian parents using cannabis oil to treat their epileptic children seeking law reform that would permit limited use of cannabis for medical purposes is an episode that shows just how cautious politicians feel that they need to be to avoid exposing themselves to the risk of being associated with policies that could be interpreted—however absurdly—by political opponents as the beginning of the slippery slope that leads to legalisation.

As well as making good policy difficult politics, an overt focus on supply reduction measures creates an environment conducive to discrimination against drug users. Stigmatisation means drug users are less likely to identify themselves as drug users and drives them away from accessing treatment and support. Discrimination against drug users has a long history in Australia. In 2003, for example, attempts to change the Disability Discrimination Act to permit discrimination against drug users were introduced to the Australian Parliament but did not become law after a concerted community campaign. Another example that can still be found in Victorian statute books is the Victims of Crime Assistance Act, which enables a court to take evidence of previous unrelated illicit drug use into account to exclude victims of crime from access to assistance. Only last month, the Commonwealth budget included a proposal to drug test NewStart recipients without a clear policy objective and no evidence base, amid concerns from experts about the harmful consequences of withdrawing financial support from people with substance use disorders. Indeed, some believe that an evidence base or policy objective are unnecessary when illicit drugs are involved.  The mere involvement of illicit drugs is apparently sufficient to justify disproportionate or inconsistent responses. For example, drug driving laws penalise drivers merely for the presence of certain illicit drugs in their bodies, rather than a level demonstrated to result in impairment. Drink driving laws by contrast require a blood alcohol content consistent with impairment before a driver may be sanctioned. In Australia unlike in the United Kingdom or New Zealand, drugs are not classified as more or less serious for the purposes of the criminal law and sentencing.  The curious effect of this, among other things, is that when sentencing a drug trafficker, a Victorian judge is not permitted to distinguish the penalty imposed on the basis that the drug in question was, say, cannabis rather than heroin.

What, then, does all of this tell us? If the eminently sensible principles of ‘harm minimisation’ are to be effective in reducing harms associated with drug use, then a number of changes must occur. First, there must be a more balanced approach to funding and support for the ‘three pillars’ of Australian drug policy.  Secondly, balance must also be returned to the debate about how best to respond to drug-related harm. This balance can only be achieved if strategies linked to each of the pillars are actually assessed on the evidence, and given the opportunity to operate effectively without being undermined by poorly targeted enforcement strategies. It should no longer be enough for politicians to be satisfied with being seen to be ‘tough on drugs’, whether or not this response is actually effective. Thirdly, we need to be grown-up enough to admit that illicit drug use occurs, and recognise that we can reduce associated harms without undermining the enforcement message. People can cope with more than one message, and attempts to reduce drug-related harm are not the same thing as condoning the use of illicit drugs. Finally, if our responses are to be effective, it is critical that the missing voices of those who are closest to the problem—and with the greatest stake in its resolution—are heard. If we are not listening to them, how can we expect them to heed the messages travelling in the other direction? If we do not make these changes, we cannot expect to see changed outcomes, and can rightly be accused of standing by while discrimination, disadvantage, ill-health and entirely preventable deaths continue to occur.

This blog post was inspired by a Wheeler Centre event – Question Time: Drug Laws, on 16 May 2017 at which CIJ’s Stan Winford was a panel member

A podcast of this event can be found here at the Wheeler Centre website.

Family violence: responding to the next generation

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PIPA Forum panel members left to right: Jo Howard, Kildonan, Lily Anderson, Step Up Program USA, The Hon Gavin Jennings, Special Minister of State, Jamie Marloo Thomas, Wayapa Wuurrk Aboriginal Wellness Foundation, Elizabeth Grawe, parent with direct experience of AVITH , Elena Campbell and Rob Hulls.
by Elena Campbell, Associate Director, Research, Advocacy and Policy, CIJ

Amidst the array of family violence reform across Australia, how does an issue like adolescent family violence rate? Is it really something on which we can afford to focus, when we already have so much work on our policy plates?

Far from peripheral, adolescent violence in the home (AVITH) is a very real issue for many working in and around the broader response to family violence. Certainly, throughout the development of the CIJ’s 2015 report, Opportunities for early intervention: bringing perpetrators of family violence into view, the CIJ heard consistently that (a) adolescent violence was a huge concern; (b) there was no considered response to it and (c) there was no opportunity to shape such a response.

Accordingly, the CIJ decided to develop a project which created this opportunity – the chance not only to understand the challenge, but to work towards a considered solution. In collaboration with colleagues across the sector and in other jurisdictions, the CIJ applied for and received funding under the Perpetrator Interventions Stream from ANROWS, Australia’s National Research Organisation for Women’s Safety.

The result is the PIPA Project, or Positive Interventions for Perpetrators of Adolescent violence in the home (AVITH). This two year project involves dual strands – the first conducting research across Victoria, Tasmania and Western Australia which will enable us to understand the prevalence and contributing factors, as well as the kinds of responses that it currently receives in different legislative and regulatory regimes. This includes the Tasmanian regime, which currently only recognizes intimate partner violence. Meanwhile, the second strand focuses on the relevant recommendations of the Victorian Royal Commission into Family Violence – their implementation and relevant barriers; and the opportunities which need to be seized in order to work towards a considered response.

As part of this project, the CIJ recently hosted a public forum at the State Library of Victoria, the details of which can be found in our newsletter, with a link to the audio provided here. Over 100 people turned out on a freezing Melbourne night and heard this expert and diverse panel paint a vivid picture of what Special Minister Gavin Jennings remarked at the time was ‘as complex a challenge as you can imagine’.

This complexity derives in part from the fact that the primary victims of violence in this context are also the primary carers for those using the violence. What’s more, these carers are not only responsible for the welfare of the adolescent using violence, but for the welfare of their other children. In this equation, it is not surprising to hear that parents put their own welfare last – only resorting to calling the police after months or even years of violent behavior – simply because they want the violence to stop.

What happens in this situation, though? What prompts a family to call the police? What happens when they do? Answers to these questions remain regrettably elusive across jurisdictions. Police face tough judgment calls when they respond to an incident in which a parent does not want their child arrested. If the police do remove the child, there are few places to take him/her, and often the police response may involve simply sitting at the police station ringing around relatives just to find somewhere to place the child for the night.

If the child has committed chargeable offences, bail or diversionary options may not be available simply because the family does not feel that it is safe to have the young person home. This means being remanded and exposed to the criminogenic environment of custody. If children attend court as respondents to an intervention order, the programs which are available to help them and their family are confined to specific locations, with Magistrates also unable to mandate attendance for a cohort which is already incredibly difficult to engage.

Back home and feeling isolated and often ashamed, meanwhile, parents can now access more support than in the past, but support for their other children appears sorely lacking, as are opportunities for simple respite – a chance for families to catch their breath before their challenging adolescent returns home.

Without a doubt, implementation of the relevant Royal Commission recommendations will make a difference in Victoria – recommendations which include expansion of behavior change programs, increases in accommodation, support for victims and perpetrators at court, and expansion of diversion amongst others. These will also function as an example for other jurisdictions.

What the PIPA Project aims to do, however, is anticipate how these will work in practice, what the gaps are and how they can be more effectively linked. Using the findings from the first strand, the Project will feed this expanding evidence about prevalence and contributing factors up to senior levels and keep the issue of AVITH firmly on the policy radar.

In doing so the project aims to remind us that, amidst all the current policy frenzy, we have an obligation to respond to the next generation – adolescents who, in many cases may be using violence against their families simple because that is what they have learned; adolescents who are experiencing other challenges and who have not received appropriate support; adolescents who may well hit the service system as more entrenched offenders, unless we learn how to step in earlier and effectively respond.

Accessing justice through technology

Technology and the Law

by Mark Madden, Deputy Director, RMIT Centre for Innovative Justice

I have a confession to make. I am not a lawyer — but have worked with and around lawyers and justice systems for a fair bit of my working life. I have unmet legal need — after being knocked off my bike last year, I am writing off the costs to replace my bike because the time and process required to take the person to a tribunal to get justice makes it simply not worth it.

I am also passionate about building a fairer community and — and I am grateful for those who work in the legal assistance sector and lawyers who do pro bono to help get people justice.

I am sceptical about the ‘innovation’ agenda — sceptical, not cynical — but I am open to the great potential of innovation as a process, particularly in the justice space, and I have been involved in some major technology ‘disasters’, and have learned a few lessons as a result.

Today, I want to start a conversation about innovation and what it means; talk about the potential to deliver greater access to justice and maybe even end the need for pro-bono lawyers; and suggest that the future of law and justice is ‘T-shaped’ or multi-disciplinary and invite you to become involved if you aren’t already.

A basic definition of innovation is a ‘method, idea or product that is new or perceived to be new’. It is important to add ‘perceived’ because sometimes in the innovation space, what was old can be new again! It is important to understand that innovation is a process — and that the quality of the process will be a key factor in the success of the innovation.

We often think of innovation as a product or a piece of ‘hard technology’, usually IT, rather than a new idea or new way of doing or looking at things. We also often think of technology in terms of products, apps for example, when ‘technology’ can be a process. Indeed, at the Centre, our approach to innovation is informed by a method or process, or ‘soft technology’, called ‘human-centred’ or ‘impact-centred’ design, which puts the needs of users at the centre of the process.

What is it that they need, whether as victim or perpetrator, as applicant and respondent or simply someone who just wants an issue resolved, even before its gets into the formal system? Restorative justice, for example, is a method or process or ‘soft-technology’, as is therapeutic jurisprudence and multi-disciplinary practice. It is arguable that ‘adversarial justice’ is ‘old technology’, unsuited to many areas of justice including sexual assault.

This ‘user-centred’ approach can deliver new and challenging insights: in the UK a few years ago they took a user-centred approach to produce a digital map of what they thought was their justice system.

A key outcome was that the justice system was not by any definition a system at all.

That was and remains a powerful insight if you are serious about the task of improving or indeed creating a genuine justice system and delivering greater access to justice.

What is innovation: the available technology?

When it comes to ‘hard technology’, however, there is plenty out there that can be and is currently being used in the justice sector, from mobile phones to artificial intelligence and machine learning. If you have a modern mobile phone with a virtual assistant you have both.

Many of you may have heard about ROSS, based on IBM’s Watson artificial intelligence platform, sometimes called the world’s first robot lawyer. Indeed, if you are a user of e-bay, either as a buyer or seller, and have had a dispute, your dispute has essentially been resolved by similar technology. This technology allows e-bay to resolve millions of disputes across the globe every year. You may also be aware of the use of so-called ‘chat-bots’ to help people deal with a range of issues from parking fines to applications for asylum.

However, this technology is only as good as the process of innovation that has influenced its design and deployment.

Access to justice, meeting unmet legal need

My interest in innovation in the justice sector is not driven by the need to make law firms more profitable or predict the likelihood of particular judges making particular decisions in particular cases. It is motivated by the desire to improve access to justice for those who currently have little or no access.

We know from the NSW Law and Justice Foundation Report of 2012 that there is a huge unmet legal demand in Australia; that legal problems are widespread and impact on many other areas of peoples’ lives.

We also know that a sizeable proportion of people take no action to resolve their legal problems and consequently achieve poor outcomes; that most people who seek advice do not consult legal advisers, and if they can resolve their legal problems, they do so outside the justice sector — perhaps, reflecting the comments I regularly hear from lawyers that you should do everything you can to avoid going to court!

We also know the criminal justice sector is under great stress and strain, with growing demand, limited resources and longer waiting times.

In my view, innovative thinking that drives the smart deployment of ‘hard technology’ has the potential to dramatically improve this situation, with some important caveats, which I will come to later.

For example, in civil justice, a report on OnLine Dispute Resolution by HiiL Innovating Justice based in The Hague, suggests that the clever use of ODR makes the promise of 100% access to justice possible. The report says ODR has the potential to solve the internal dilemma of courts (and governments) that goes something like this — if we offer more effective and fair procedures, we will be overburdened with cases for which we have no funds.

A structured and intuitive ODR process can help the vast majority of people resolve their own disputes and be costed in such a way that most litigants can afford the necessary fees, as well as enable greater co-operation between courts and tribunals.

And while it may change the role of lawyers — and indeed potentially make their work more interesting — it won’t necessarily change the need for lawyers, and it opens up a whole new — and affordable — legal services market. Imagine that.

An ODR court is underway in British Columbia, the UK is moving in this direction and the recent Victorian report on Access to Justice canvasses ODR. Digital technology is also already transforming our courts in other ways, which I haven’t gotten time to go into here.

However, this is where my scepticism, and the caveats, comes in.

This ‘hard technology’ has great potential to improve access to justice, but the effects will be limited it we don’t take the opportunity to deploy ‘soft technology’ like human-centred, or ‘impact-centred’ design to see the sector with fresh eyes, seek the views of users and take the opportunity to re-think and potentially re-create a system for the 21st century.

If we don’t do this — as Sir Ernest Ryder (President of Tribunals in England and Wales) has said, we simply risk fossilising old and out-dated processes and practices in a layer of ‘hard technology’. 

The existing approach and solutions has the potential to be very expensive and therefore unlikely to be embraced by governments. If we don’t take this opportunity, to rethink and redesign, if the solutions are not scalable and if it outcome is not going to be embraced or responded to by users’ (because they weren’t involved) then it is unlikely to succeed.

So governments, courts and organisations in the justice sector need to take the opportunity to rethink and redesign the delivery of justice — and their own internal systems — from the users’ perspective — from the laws and rules we created to the processes we support and fund — and then decide what solution will deliver better outcomes, which surely must be greater access to justice.

And in doing so, they need to invite new partners from outside, including from the innovation, technology and particularly the design communities — as well as their ‘clients’— to help them and jointly start to think genuinely outside the box.

This process of ‘co-design’ may have to be pro-bono, of course, — at the start!

T-shape justice reform

In short, justice reform needs to be multi-disciplinary, or ‘T-shaped’.

Two years ago, the Centre embarked on the Access to Justice through Technology stream (A2JTC) of RMIT’s Fastrack Innovation Program with the support of Victoria Legal Aid and the Federation of Community Legal Centres.

This is a program where the best and brightest students from across the University are given the opportunity to tackle an access to justice issue. While mentors from the legal assistance sector support the students, there were doubts at the start about whether it would work.  And, for good reason. We would be asking undergraduate students in teams of three, with no legal background, to use their design thinking skills and the skills and knowledge from their various disciplines to tackle complex social and legal issues. And to do it in 13 weeks!

This was no theoretical exercise. Their solutions had to be desirable, feasible and viable.

The outcomes were beyond expectation. The mentors were amazed by how quickly the students grasped the issues and just as importantly challenged the way they had thought about the issues.

Two of the projects on family violence were sent for consideration to those implementing the Family Violence Royal Commission and another two, addressing fines and infringements we hope to get to the market, although finding the resources in the sector to do this is another major challenge.

The solutions in the 2016 program were just as impressive with challenges including a solution to end the referral roundabout in the sector but track unmet legal demand in real time, provide legal education and advice in visual form for CALD communities,and helping to prevent young people being exploited at work.

I realised after the first year that we had created what has been referred to as T-shaped justice reform.

That is, the skills and knowledge of the teams combined deep knowledge of an area (represented by the vertical) with cross-disciplinary thinking (represented by the horizontal). I think this is the way of the future, and the lawyers and the organisations who can combine these, either internally or by co-opting and embracing others are also the lawyers and organisations of the future.

Conclusion

This brings me back to an interesting point that emerged during a series of discussions I had last year around design, technology and access to justice and in particular a Dutch online dispute resolution system, called Rechtwijzer.

The system development was informed by design thinking. Despite the fact that it was ‘humanising’ dispute resolution by empowering people to resolve their own disputes — it was in some instances referred to negatively as a ‘robot-law’.

However, as one participant reflected later ‘what could be more robotic than the way we lawyers currently work in a system that for most people does not compute.’

It is an interesting idea that good design coupled with the right ‘hard technology’ could help us bring more of the human element into our justice sector and deliver greater access to justice and indeed create a real system.

It is an idea or innovation worth pursuing, and you can start the journey, by walking a mile in the shoes of your clients or users of the justice sector by asking simple questions, ‘what are your needs? What was your experience?’ You can also think about how much of what you do is administrative and repetitive and takes you away from what you would prefer to be doing.

For centuries, justice has resisted or at least failed to embrace change. It has fought to keep pilot programs at the periphery and to insist that this is the way it has always been done.   Today, with technological innovations there is real potential to address access to justice as never before.  The process is challenging and rewarding but if we don’t take the opportunity to rethink, reshape and innovate, the header image accompanying this blog may be the future we face.

A call for innovative responses to youth justice

web_child-in-jail

By Stan Winford, Principal Coordinator, Legal Programs

The history of youth justice in Australia over the last 200 years or so is characterised by the failure of punitive detention to impact on recidivism or to address at an individual or systemic level the underlying issues which have propelled many young people into the justice system and into custody. Across Australia, youth detention facilities house a disproportionate number of detainees with mental health issues and cognitive impairments, limited educational attainment, and histories of abuse, trauma and victimisation. Detention facilities have effectively become warehouses for vulnerable and disadvantaged young people, failing to effectively support education and rehabilitation, instead engendering criminogenic relationships and behaviour.

Aboriginal people have been more exposed to this failure than any other group, and are devastatingly over-represented in the youth justice system, particularly in the Northern Territory. Not enough has been done by successive governments to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Aboriginal people represent approximately 30% of the population of the Northern Territory, but 96% of children and young people in detention in the Northern Territory are Aboriginal.

Jurisprudence, criminology and behavioural science all tell us that children and young people have a greater capacity for rehabilitation than adults. Yet the evidence shows that detention facilities provide an education in crime, and children who have been detained are more likely to re-offend in future. Detention is also the most costly form of responding to youth offending. Last year, governments across Australia spent $698 million on youth justice, and most of it (62.8 per cent, or $438 million) was spent on detention rather than community based responses. Detaining children and young people in closed environments is inherently unsafe. In the last five years, there have been investigations into youth detention facilities in almost every Australian state and territory. Violence and the use of excessive force appear to be endemic.

The documented backgrounds of children and young people in detention include very high rates of family violence, parental drug and alcohol abuse and contact with child protection systems. Rather than addressing this deep-seated trauma, however, youth detention exacerbates it by imposing additional trauma in the form of an uncompromising and authoritarian environment where violence – from other detainees and from authorities – is a constant threat.

If these costly facilities are not reducing re-offending and are harming young people, the question must be asked: why do we persist with this approach? Can we respond to trauma with trauma informed practices that address the underlying issues rather than their symptoms? Are there innovative alternatives?

It may be that the continued existence of youth detention centres themselves – with their consumption of a disproportionate share of juvenile justice budgets, and their tendency to present a deceptively appealing ‘out of sight, out of mind’ solution to a complex problem – create the greatest barriers to the development and adoption of alternative responses.

Despite this, alternative responses do exist, and demonstrate a path forward for youth justice. In Victoria, for example, Parkville College incorporates culturally appropriate and trauma informed practices, and establishes safeguards for young people in detention. Parkville College is a school within a detention facility in Melbourne.  Parkville College employs a therapeutic and trauma informed approach to learning and teaching. It aims to create lasting change for incarcerated students by establishing positive relationships and addressing the impact of trauma. It offers cultural connections to Koorie students and incorporates effective pathways for young people to maintain their education without interruption while transitioning out of detention.

Critically, it also helps create a safe environment for young people, and treats education as a right not a privilege. In many youth justice facilities, detainees frequently miss out on education because of the unavailability of custodial staff to supervise them, or because the ‘good order and security’ of the facility is prioritised above all else.  Normally, when education meets custody, custody wins. By contrast, if a young person is not available to participate in a class at Parkville College, education staff – having an obligation to teach them – can ask where they are, and for custodial staff to make them available.  Even if there is some valid reason for the absence of the student, the ability for teaching staff to ask the question provides an important measure of accountability. The learning environment established by the presence of teaching staff creates a fundamentally different culture, while the physical presence of teaching staff alongside custodial staff minimises the risk of inappropriate treatment.

Nationally and internationally, there are many other examples of innovative approaches to youth justice like Parkville College. Other jurisdictions are successfully harnessing the opportunities offered by restorative justice, therapeutic justice, justice reinvestment, culturally informed justice approaches, and solution-focussed courts to create more positive outcomes for young people.  Many of these responses are based on ‘user-centred’ approaches to designing solutions to entrenched and systemic problems. They recognise that to have the best chance of identifying opportunities for early intervention and diversion, the trajectory of people’s journeys through justice systems and processes must be understood. These are responses that focus on reducing trauma, and are informed by the people who have the most at stake in seeing them adopted. These responses focus on the power of education to transform young lives, disrupting the ‘trauma to prison pipeline’ and putting young people back on track. Innovative responses like these represent the best opportunity we have to change our approach for the better, so that another generation of young people are not lost to a system that fails to responds to their needs and the needs of the community.

The CIJ has formally provided the Royal Commission into the Protection and Detention of Children in the Northern Territory with a submission on innovative responses to youth justice.  Keep an eye out for the full submission on the Royal Commission website here.

When compulsion becomes crime

gambling

By Rob Hulls, Director, Centre for Innovative Justice

This week is Responsible Gambling Awareness Week, a chance to reflect on how gambling has embedded itself into our culture, and whether the extent to which some participate in it is causing more harm than we currently realise.

Criminal behaviour is one of those potential harms. For a time, it was even a criteria in clinical tools used to diagnose gambling addiction. Whether a symptom of disorder or a consequence, however, the relationship between problem gambling and offending is not well understood.

Certainly, we see the occasional media story about corporate players who, to fund their high stakes habit, help themselves to funds which did not, strictly speaking, belong to them. We may also hear about more ordinary individuals who – perhaps working as a bookkeeper or in a bank – embezzled from their employer to fund a pokies habit and then were sentenced to jail. When we do hear these stories, most likely we think, ‘serves them right’, assuming it is just a consequence of greed.

What we don’t hear about is what might have driven them to obsessive gambling in the first place, or kept them there when it was no longer much fun – about the way in which mental illness or family violence, for example, can drive people to seek solace in bright, warm environments like gaming venues.

Similarly, we don’t hear about how gambling interacts with other factors which drive people into criminal behaviour, or how it might prevent them from getting out again. For, though it may be the primary cause of crime in only a small number of cases, research indicates that gambling can be a significant cause of re-offending. After all, even if an offender has been rehabilitated through their contact with the justice system – receiving effective treatment for mental illness, substance abuse or gambling addiction itself – gambling debt may await them upon release. Often the quickest way to repay that debt, especially for those accustomed to offending, is to commit another crime.

These are just some of the stories emerging from the Centre for Innovative Justice’s research into the intersection of problem gambling and the criminal justice system. Others concern vulnerable people, particularly women, coerced into offending – much of it drug related – as a way of repaying loan sharks from their particular community, or because their partner has spent their Centrelink benefits to fund a pokies habit and left them with no option but to steal to feed their kids In fact, a disproportionate number of inmates of Victoria’s women’s prison are there for offences that can be traced back to gambling debt, whether theirs or their partner’s – women whose children may then be removed and become vulnerable to crime themselves.

This seems a puzzling situation. Nobody benefits, including the community, if vulnerable people with no prior history of offending end up in prison. After all, we know that there is no better training ground for crime. On a cost-benefit analysis alone, therefore, the income we may be deriving from the gaming industry must be weighed up against the other costs.

The legal system needs to understand this issue better if it is going to respond effectively – including by engaging with growing evidence about changes to the neural pathways that can occur as a result of habitual and compulsive behaviour, and the cycle of anticipation and reward in which people can find themselves trapped. Knowledge about neural pathways should then converge with knowledge about offending pathways – the trajectories which can lead problem gamblers into crime, or in which gambling can entrench, or be entrenched by, other forms of anti-social behaviour.

Every case should be viewed independently, of course, and we should certainly guard against gambling becoming an excuse for crime. Courts rightly look for a nexus between an addiction and offending – but they are not currently supported with adequate information about more recognised forms of addiction. Knowledge is further curtailed by the failure of the system to gather any data about gambling, meaning that other factors which may be at play in offending are not addressed in a holistic way.

Our project is about bringing understanding across disciplines together – not to let anyone off the hook, but to seize the chance that contact with the legal system represents to set people on a different path. This therapeutic intervention can come from lawyers, from services, from the judiciary and ideally from all of the above – but it must be supported with shared knowledge across the board.

Whether it is the primary cause of offending by otherwise well-functioning individuals, or just present in the cocktail of chaos in which so many are caught, contact with the criminal justice system is an opportunity to address problem gambling. We must not let this opportunity go to waste.

System which entrenches disadvantage is poorly designed

JUG artwork 1

If we were asked to design a legal system from scratch, it’s unlikely that we’d craft it to increase reoffending. In the way that our justice system responds to certain members of the community, however, that’s exactly what we’ve done. From cops, through courts to Corrections, our legal processes are shaped in ways that entrench disadvantage and make it almost impossible for particular people to establish a life beyond the cycle of disadvantage and crime.

No group could be more vulnerable to this design flaw than people with Acquired Brain Injury. As Brain Injury Awareness week rightly highlights, ABI is often known as the ‘hidden disability’, acquired at some point in a person’s life after birth – either through traumatic injury, such as a car collision or violent assault – including family violence, or through chronic problems such as substance abuse.

Manifesting in a range of ways, ABI is one of a range of factors which make people more likely to come into contact with the criminal justice system and less able to comply with its directions once they do. In fact, research commissioned by Corrections several years ago revealed that 44% of men and 33% of women in Victoria’s prisons have an ABI – an extraordinary figure which should tell us that something is terribly wrong under the metaphorical bonnet of the justice system.

Few among the general population, after all, have a hope of understanding the complex processes and language of a courtroom. Few would not be intimidated by an interaction with police or frightened when flung into a cell. When the experience is compounded by cognitive impairment, by potential mental illness, or by the prior experience of victimisation to which we know that people with ABI are vulnerable, then this experience becomes even more alienating.

Yet many police do not ask or even understand what an ABI is; most courts lack flexible or appropriate sentencing options; and our prisons systems – confirmed by last year’s Ombudsman’s report as effectively operating in a disability environment – are ill equipped to respond effectively. As a result, people with ABI, like people with other forms of disability, are cycled in and out of the prison system – unlikely to comply with orders, unable to understand the process, released to homelessness and inadequate support which means they turn to offending to get by.

Governments are recognising that this makes no fiscal or social policy sense but they struggle to grapple with how to begin to undo this mess. This is why our Enabling Justice project – a partnership between the Centre for Innovative Justice and Jesuit Social Services – is using the voices of people who have an ABI and who have experienced the criminal justice system, to design better responses. Their stories – and their participation in a Justice Users Group (JUG), which puts their voices front and centre – help to identify tangible ways to make each interaction more constructive and effective.  A podcast with JUG members Kerry and John can be found here.

Many of these suggestions are specific to people with ABI. As Brain Injury Awareness week also highlights, however, only a small proportion of ABI is identified. This means that we have to design the entire system differently – assuming that, if someone has come into contact with the criminal justice system, they are potentially already vulnerable.

Yes, there are a small number of hardened offenders in our prison for whom there seems no other option but incarceration. The majority of those in our prisons, however, are likely to have come from one of only a few Victorian postcodes and a background of intergenerational unemployment. They are unlikely to have completed their education. They are likely to have a substance abuse problem or mental illness. They are likely to be homeless. If they are a woman they are likely to have experienced family violence or childhood sexual assault. They may have a gambling addiction and be coerced into crime to pay off their debts. What’s more, by coming into contact with the criminal justice system, their situation is likely to have been made significantly worse.

Given that we know this, we have to design a system that takes this knowledge into account. Doing so is not about making excuses or letting people off the hook. It is about recognising that the community is losing money from a system which, in far too many cases, cements the commission of further crime, rather than prevents it.

It is also about recognising that people with ABI need justice to function as a positive, rather than a negative, intervention in their lives – treating them with the dignity and offering them the hope that the rest of the community rightly expects.

Rob Hulls                                                                Julie Edwards
Director                                                                  CEO
Centre for Innovative Justice                           Jesuit Social Services