Andrew Leigh

E&OE TRANSCRIPT
RADIO INTERVIEW
2SER THE DAILY
THURSDAY, 29 AUGUST 2019

Subject: New research on Australia’s incarceration rates.

HOST: Now with much talk about Closing the Gap, into the well-being of our First Australians, a new report into Indigenous incarceration suggests as a nation that the number of Australians incarcerated has radically increased over the last three decades. Now on the line we have the Shadow Assistant Minister for Treasury, Dr Andrew Leigh, whose report discusses the drivers behind the sharp increase in Indigenous people being placed behind bars and what can be done to rectify this issue. Welcome to the show.

ANDREW LEIGH, SHADOW ASSISTANT MINISTER FOR TREASURY: Thanks, Stephen. Great to be with you.

HOST: Now this report you've authored suggests that currently 2.5 per cent of Indigenous Australians are incarcerated, which is a higher share than among other disadvantaged comparable ethnic groups like African-Americans. Now if crime rates are substantially dropping among developing nations, what accounts for this rapid increase in the amount of First Australians being imprisoned?

LEIGH: It is worth just pausing on that figure, isn't it? Two and half per cent means that if you count up 40 Indigenous Australians adults, one of them will be behind bars today. It’s even worse over in Western Australia, where the indigenous incarceration rate is over 4 per cent, meaning that one out of every 25 Indigenous Australian adults are incarcerated now. Over a lifetime, that means that more than a quarter of Indigenous men end up spending time behind bars. Incarceration is becoming an almost normal life event. Among the factors driving it are that police are more likely to press charges, and courts are more likely to convict. The sentences tend to be longer, and while awaiting trial people are more likely to be behind bars rather than out on bail.

HOST: You talk about Australia moving into a second convict age. Now, while there’s the substantial rise in sunk costs, all this increased expenditure on prisons, what would you say are the biggest costs on this decision by governments to increasingly employ custodial sentences?

LEIGH: It is a massive fiscal cost. Incarcerating one person for one night costs $302 according to the Productivity Commission. You could get yourself a pretty nice hotel room, a five star hotel in a capital city, for that amount of money. So, is expensive. But it's also costly to offenders and their families. We know that half of offenders say that they will be homeless when they’re released, that a significant proportion say that they shared needles while they’re in jail. And we also know that people are attacked – 11 per cent say they've been attacked by another prisoner while behind bars. There's not a great acquisition of skills. Only 17 per cent come out with a formal qualification. More often prison tends to serve as a university of crime, where people turn away from the formal economy and towards recidivism.

HOST: Now, in the modelling for your paper you suggest that there are two big factors that account for the increase in the indigenous population - the increase in the longer sentence length and also the changing of bail laws with state governments. That factors in for 77 per cent of the increase in the prison population. Do you think that with this increase, there should be the ability through COAG and instrumentalities of government to look at ways of dealing with alternative sentencing?

LEIGH: Yes, I think it certainly should be. There's been a rise in drug courts, in Koori courts, and a focus on justice reinvestment in some jurisdictions. But all of that has been accompanied by a rise in incarceration. What's really interesting is that we've had a big improvement in the technology for monitoring people outside prison, but yet Australia seems to be using the old fashioned technology of locking up behind bars far more than we did back in the past. I'm not saying that it's perfect to have an ankle bracelet, but it allows you to maintain your friendships, it allows you to maintain your job in many cases. Looking at those alternatives is an important way of moving forward.

HOST: Now, with Indigenous Australians, there are so many aspects of systemic disadvantage that are contributing to the overrepresentation within the prison system. Do you think an increased focus on meeting the Closing the Gap targets would at the same time substantially reduce the expenditure we currently spend on this sort of custodial programs?

LEIGH: Yes. I mean, for me it's not so much about how much we spend - although I think we're spending too much – it’s more about how we ensure that people live meaningful lives. We know that locking people up is a short term solution which can create long term problems .When you're talking about somebody who is living from day to day and wondering whether or not to commit an armed robbery, increasing the maximum penalty from 10 years to 20 years isn’t going to have twice the deterrent impact. So we need to be smarter on crime, and recognize that we can actually have lower crime rates and lower incarceration rates at the same time. I should stress that my study focused on overall incarceration rates, which I estimate to be the highest that they've been in Australia since 1899. And I think to a great extent, Indigenous Australians have been swept up in changes which have affected Indigenous and non-Indigenous offenders alike. Often, acts that would have seen someone receiving a non-custodial sentence in the 1980s would see them locked up now.

HOST: One aspect that which Australians particularly suffer from is access to all diversionary programs, particularly people from rural and regional areas. There really isn’t the amount of early intervention and pathway programs to siphon individuals away from crime and into other activities. Now according to Eileen Baldry, postcode remains a significant influence on being imprisoned, in particular with issues like cognitive disability and mental illness. Do you think improved services in some of these areas would significantly address the amount of Indigenous people being incarcerated?

LEIGH: We need to do better in ensuring that when people go into jail that they come out with better skills. That might be formal qualifications - currently four or five come out without a formal qualification they’ve obtained in prison. It might also be bettering your anger management skills. We're learning quite a bit now about the benefits of cognitive behavioural therapy and I know that some institutions are using cognitive behavioural therapy quite effectively. Basically what that's doing is to help people break out of automatic patterns, so that when someone shoves you, you don't immediately strike back. You assess the situation and work out what the next best response is. When there’s an escalation of conflict, you don't necessarily go to make the conflict physical, but you look at ways to diffuse the situation. So cognitive behavioural therapy might be one of the ways of turning this around. We also need to reconcile ourselves to the fact that, as you said in your introduction there, the crime rate is down yet the incarceration rate is up, and that's largely because we're imposing much higher penalties than we did in the 1980s.

HOST: Now in the US, we've actually seen some bipartisanship in regards to justice policy, with libertarians and liberals sort of cooperating to drive down costs and confront the social issues that drive crime. Is there a possibility of a similar consensus being reached in any Australian jurisdictions? Can you see that possibility?

LEIGH: I certainly hope so. We've seen a little bit of movement from the right wing thinktank, the Institute of Public Affairs, which has looked at that the cost of incarceration. But in general, those on the conservative side of the political spectrum in Australia haven't followed the same path as conservatives in the United States, where for example the Koch brothers - who are largely a force for funding conservative causes – blocking action on climate change campaigning against public transport. But in criminal justice, they’ve decided they’re going to be part of a movement to reduce incarceration rates, and in states like Texas that's been pretty effective.

HOST: I mean, a lot of it is also involved in the complexity of structuring the Criminal Code. So, whenever there is a major crime, there is this idea that we require longer sentences for public security. Do you think with improved communication on the sort of complexities that resulted in a lot of particularly petty and not nonviolent crime, particularly those things like drug offences, that could actually bring the public along with this issue?

LEIGH: I think so. It's important to bring together the best evidence, so we're making decisions based not on our guts but on our heads. The Washington State Institute for Public Policy, for example, did an exercise some years back where they drew together all of what they saw as the best evidence for reducing crime. We can do an exercise like that in Australia, which would be fruitful in avoiding the law-and-order auction that we sometimes see in state and territory elections. We should raise the quality of evaluation of criminal justice programs, making more use of randomised trials. We also want to think about the impact of incarceration on children. The average prisoner has 1.8 children, which means that for the 43,000 Australians behind bars today, there’s 77,000 Australian kids who have an incarcerated parent and who will suffer the mental anguish, the decline in school performance, the increased risk of dropping into poverty while their parent is incarcerated.

HOST: And finally, just one more question. There's actually quite a lot of prisoners on remand at the moment. Do you think that are states and federal governments have done enough in their investment in the court and justice system? As it seems to be some pretty substantial waiting times for getting people getting access to the day in court.

LEIGH: It's really important to ensure that’s a top priority. I was an associate to Michael Kirby the High Court in the late-1990s, and I remember every time we would be thinking about the order in which cases would come up in the High Court, he’d always say ‘we have to prioritise any cases which involve people who are in jail’. Because the reason the case is coming to us is that that person is claiming they're innocent, and if there's an innocent person languishing in jail, they shouldn't be there a day longer than necessary. But we have an awful lot of people sitting behind bars right now who haven't been sentenced. Back in the 1980s, that was 13 percent of the prison population. Now it’s 32 per cent of the prison population who are unsentenced. So this use of prisons as a holding pen for people awaiting trial is one of the drivers of rising incarceration.

HOST: OK. Well, thank you for being on the show.

LEIGH: Absolute pleasure, Stephen. Thanks for the conversation.

HOST: That was Dr Andrew Leigh, the Member for Fenner and Shadow Assistant Minister for Treasury.

ENDS

Authorised by  Paul Erickson, ALP, Canberra.