Andrew Leigh

Australian Crime Commission Amendment (Criminology Research) Bill 2015

10 November 2015

I note from the outset that Labor will not oppose the bill, which will be referred to the Senate Legal and Constitutional Affairs Legislation Committee for further scrutiny and to give stakeholders an opportunity to raise their concerns. We have taken at face value the government's undertaking that this merger is not a savings measure, but I do believe that, as the member for Perth has so articulately outlined, we are merging together two organisations which necessarily have very different cultures. The Australian Crime Commission must take secrecy and privacy seriously. Lives are at stake in their investigations, and it is absolutely vital that they are able to protect confidences. But the Australian Institute of Criminology, which will be known as the Crime and Justice Research Centre, must instead have a culture of openness, disseminating data and research as broadly as possible.

The member for Perth shares many of my heroes in the world of criminology and good, evidence led criminal justice policy. Don Weatherburn was a strong influence on me as a whippersnapper becoming interested in data and public policy. Mark Kleiman's book When Brute Force Fails: How to Have Less Crime and Less Punishmentreshaped my view on crime and punishment. Bruce Weston's work on US incarceration shines a light on a path that Australia should not go down. Reformers on both sides of politics—Paul Papalia and Greg Smith among them—have shown that it is possible to take Australia down a path where we have less crime and less punishment.

Labor has secured an assurance that the Crime and Justice Research Centre will continue to operate an open-access JV Barry Library, which is a vital resource for academics and criminologists, but I believe there are other issues that need to be taken up. To the extent that the proposed legislation for the formation of the Crime and Justice Research Centre takes the old legislation and simply incorporates a new framework, we are missing the chance for positive change. We should be opening up criminological such as is presently occurring in fields such as education and health. Principles of open data, open access to publications, transparency in methods and further collaborations with the academic sector will set a tone for a culture shift over time.

We know that academic researchers too often struggle to get access to good crime data. For research that I did when I was an Australian National University professor using crime statistics at the local government level on a monthly basis, I had to go to every state and territory police department in order to get those data. That does not make sense in the 21st century where we are talking about aggregated crime statistics at a local level. These should be available to everyone. Open data not only encourages better research but also allows us to weed out mistakes. The possibility of subsequent researchers replicating the data ensures that we are less likely to go down a path towards error.

If the government is serious about an evidence based response to crime, it should have a look at the model followed in the United States Second Chance Act of 2007 and, indeed, a range of other United States bills in which a small portion of funding—a percentage point or two—is set aside for the purpose of high-quality, rigorous evaluation. These evaluations—typically randomised evaluations but otherwise high-quality natural experiments—allow a better feedback loop, improving the quality of public dollars spent within an organisation such as the Australian Crime Commission. Unfortunately, this is not done at the moment. To take one example, a survey of juvenile arson intervention programs in Australia carried out by the Australian Institute of Criminology's researchers Damon Muller and Ashley Stebbins concluded in 2007:

Formal, independent evaluation of programs should now be undertaken to ensure that they are effective in stopping firelighting behaviour among young people.

I could pick a host of other examples where the evidence bar at the moment in our criminal justice interventions is too low.

I am also concerned that it is not clear under the new arrangements how academics and researchers could appeal if the Australian Crime Commission refused to provide data for academic research or to release research findings from a particular piece of research. The Australian Crime Commission routinely deals with a diverse range of sensitive information and it is experienced in ensuring that that information is appropriately secured and dealt with. As part of the merger, we understand that the Australian Crime Commission will put technical administrative mechanisms in place to ensure personal information collected for research purposes is stored appropriately. Beyond that, it would be of great benefit to researchers if the Australian Crime Commission was directed to publish a yearly list of its research projects and its data holdings. That could facilitate better use of data and better collaboration between the Australian Crime Commission and the academic community. Our law enforcement and protection agencies, and thus our researchers, are increasingly dependent on accurate and readily available data and intelligence. Many of the advances in policing, such as hot-spot policing, are driven by the better use of data. We should be pursuing that through the Australian Crime Commission as well.

We need to ask ourselves how these changes will help in finding ways to solve the problem that comes from Australia's rising incarceration rates. In the middle of 2014, the Australian incarceration rate reached a 10-year high of 33,791 people—that is, more than 185 prisoners per 100,000 adult Australians. The rising incarceration rate has not been principally caused by a rise in crime; indeed, the murder rate is now about half of what it was in the late 1980s. If you look across most violent crime categories, you see a reduction since the late 1980s but you see a rise in incarceration rates.

Australia may have started off European settlement as a nation of prisoners, but by 1905 we had 110 prisoners per 100,000. By 1920 that was down to 52 prisoners per 100,000 and it was only in 1998 that we hit 100 prisoners per 100,000. Now we are at almost double that with 185 prisoners per 100,000. Australian National University criminologist Adam Graycar notes:

… many of our prison population in 1900 were incarcerated principally as a result of their mental state … and in 2000 this situation has changed very little. In 1900 young males contributed significantly to criminal activities, and at the end of the century this continues to be the case.

Prison is expensive. According to the Productivity Commission, Australia spent $3.3 billion on corrective services in 2013-14. The amount we spend on locking people up has been growing at an average rate of 2.3 per cent a year since 2009, almost double the rate of growth in spending on student assistance schemes such as Youth Allowance and Austudy. We know that people who are dealing with poverty, unstable home lives and addiction are much more likely to have run-ins with the police and the courts and are more likely to experience the adverse consequences of imprisonment when they do. High-quality crime research can show us how to intervene early in order to save lives and to save taxpayer dollars at the same time. The research carried out by Australian criminologists is an important mission.

I want to offer a few more reservations and suggestions which might perhaps be taken up by the Senate Standing Committees on Legal and Constitutional Affairs as it scrutinises this bill. On privacy, the bill engages the right to privacy by inserting a new information disclosure regime into the Australian Crime Commission Act that supplements the existing information dissemination regime. The issue of privacy is particularly sensitive in the area of crime research. It is often used to prevent researchers getting access to criminal justice data. Perhaps what we need is a general statement that, notwithstanding the Privacy Act, the Australian Crime Commission will seek wherever possible to make data available to academics. The Australian Crime Commission is experienced in ensuring that information is appropriately secured and dealt with. I understand that as a part of this merger it will put technical and administrative mechanisms in place to ensure personal information is collected, stored and used appropriately so that it might better facilitate use of the data as a result of this merger.

Under the Criminology Research Act the Australian Institute of Criminology is limited to those objectives of promoting justice and reducing crime in performing those functions. The Australian Crime Commission's criminological research and related activities might continue to promote those objectives but it will not be limited to those objectives. I think it would be useful to know what this might mean and what might be included if the Australian Crime Commission's objectives become defined by their indefiniteness.

On the issue of oversight of the board, the Australian Crime Commission board already has the function of providing strategic direction to the Australian Crime Commission and determining its priorities. Following the broadening of the Australian Crime Commission functions under this bill, the board can provide strategic direction or it can determine the Crime Commission's criminological research priorities under its existing broad powers. In doing so, the board may take advice from a non-legislated advisory body that includes both justice and law enforcement representation. That 'may' does not go far enough. The board ought to be required, in my view, to seek this kind of advice in setting its research priorities. It is important that the board, a non-legislated advisory board, ought to meet at least twice a year, be focused on research and have at least half of its membership from the criminological research community. It would be useful if its minutes were published so that outside researchers can see that the Australian Institute of Criminology becoming part of the Australian Crime Commission has not reduced the quality of Australian crime research.

The Criminology Research Special Account will continue but the modifications required by this merger need to be monitored. The amendment to the bill appears to leave room for funds from the CR Special Account to be allocated for research or activities not tied to criminology research. I would hope that future amendments will limit the amount that can be spent on administration and ensure that the Crime Commission has no temptation to direct funds from the CR Special Account to research that is not solely criminology research.

This bill will enable the ACC to charge fees for services that it provides in performing any of its designated functions relating to crime research. It might be worth considering a specific out clause exempting academic researchers from charges for access to data, while leaving commercial consultancies liable for such charges.

Proposed new subsection 15B(2) provides that the fee must not amount to taxation. That means it must be reasonably related to the cost of providing the services. The government intends that the ACC will be able to charge for services relating to crime research on a fee-for-service basis, as the AIC currently does.

The AIC currently undertakes a significant level of commissioned work for Commonwealth, state and territory agencies and the private sector, including research projects, surveys, program evaluations and other administrative type services. The government proposes that this work would continue through the ACC post-merger but has not made it sufficiently clear, in my view, how it will deal with the potential for real conflicts of interest, how these transactions will be handled or whether the ACC is subject to the Public Interest Disclosure Act.

Finally, item 2 in the bill, the repeal of the Criminology Research Act 1971, will abolish the AIC as a statutory agency and remove the requirement that there be a director of the AIC. The Criminology Research Advisory Council will no longer be a statutory body, but it is not yet clear what its role will be in relation to the ACC.

Let's be clearer again as we go ahead here. The advisory council should continue its role as a non-legislated body providing advice to the Australian Crime Commission's CEO and the Australian Crime Commission Board. If that is not the case, we will lose effective oversight of the criminology research funds. That advisory council needs to meet, publish minutes and have appropriate representation—preferably 51 per cent crime researchers—to maintain appropriate oversight.

The issues that the Australian Institute of Criminology deals with are fundamental to tackling crime and disadvantage in Australia. It ought not be beyond our wit to do both—to see an Australia that locks up fewer citizens and provides more opportunities to disadvantaged Australians, where people are safer in the streets but where lives are not blighted by incarceration.

I mentioned at the outset the United States path, where the odds of a black American high school dropout going to jail by their 35th birthday have gone to two in three. America now incarcerates over one per cent of its adult population, a level higher than in all other developed countries. This is not a path we want Australia to go down, and good crime research can help us avoid it.