Access to Justice

Background

In 2014 the Liberals came into office with a ‘tough on crime’ agenda.[1] These sorts of policies have been long understood to be populist and ineffective.[2],[3]

Unsurprisingly, after 7 years of ‘tough on crime’ policies, the system is at breaking point. Figure 3.7.1 shows that the imprisonment rate has increased by 33% on 2013-14 levels. As a result, prison design capacity utilisation in 2019-20 averaged at 93%, up from 77% in 2013-14.[4] This has had flow-on effects, including time out of cells decreasing from 9 hours per day to 7, and an increase in assaults.[5]

Figure 3.7.1: Imprisonment rate per 100,000 adults[6]

The prison system has been plagued with problems. Prisoners are ‘double bunked’ when space is limited, with no formal risk assessment taking place.[7] There are poor behavior management practices, and no dedicated facilities for the protection of prisoners.[8] sentences are calculated incorrectly, resulting in some prisoners being released early and others being incarcerated longer than their lawful sentence.[9] This is just a sample of the 90 odd issues identified in one inspection report of Tasmania’s custodial services.[10]

The punitive response to crime has significant negative financial implications as well. In real terms (excluding indexation), prior to 2014 the costs of corrective services were increasing by, on average, slightly over 2% per year. Since then, the average increase has been 6% per year.[11] Annual expenditure on corrective services has increased from $56 million in 2013-14 to $81 million in 2019-20. The costs per person are also increasing – figure 3.7.2 shows that since 2013-14 the cost per person per day in the corrections system has increased by almost 70%.

Figure 3.7.2: Real net operating expenditure, per day, per offender[12]

The increase in expenditure – although significant – has been inadequate. A 2019-20 audit by the Tasmanian Audit Office on the use of resources in the prison system found that the Tasmanian Prison Service failed to accurate predict, and allocate, appropriate resourcing to meet the needs of in increasing inmate population.[13]

All of this points to an unsustainable system that is needlessly costing the community.

Restorative Justice

The tough-on-crime approach adopted by the government has virtually eliminated restorative justice efforts, with one audit noting –

“activities directed at rehabilitation of prisoners were almost non-existent in all facilities.”[14]

Putting the lack of programs aside, many fundamentals are not occurring. For example, correctional staff are neither trained for case management, nor have to time to provide case management. The result is prisoners do not have assistance for basics, including preparation for work when they leave prison.[15]

Unsurprisingly, adult recidivism has increased from 39.1% in 2014[16] to 47.1% in 2020.[17] In the same time youth recidivism has increased from 29.8% to 58.3%.[18]

Restorative Justice Policies and Programs Division

 

We will provide additional resources, and integrate existing resources, including the Programs Unit and Therapeutic Services, to establish a Restorative Justice Programs and Policies Division. This division will develop and deliver programs and policies, and monitor outcomes, with the objective of reducing reoffending and promoting successful reintegration into society.

Bail Hostel

A lack of stable accommodation can contribute to a court declining to grant bail for an individual.[19] This means a defendant without stable housing – who has not been convicted of a crime – would be imprisoned on remand.

A person on remand is someone that has yet to be found guilty of a charge. Remand can fundamentally invert the principle of innocent until proven guilty. In a justice system struggling to meet increased pressures, this issue can be exacerbated. In 2020, 9% of remandees were in remand for over a year – prior to 2014, this rate was 0% (figure 3.7.3).

Figure 3.7.3 shows that the number of prisoners on remand has increased since 2014, and the duration of remand is also increasing.

Figure 3.7.3: Unsentenced Prisoners on Remand, total number and duration of remand[20]

Imprisonment is costly; in 2020 the operational expenditure per prisoner was $334.64 per day.[21] Based on the data presented in figure 3.7.3, this has likely cost around  $7.7 million in 2020 – an increase on an estimated $3.2 million in 2014, at present costs. The is ignoring the significant infrastructure costs that have gone into upgrading remand facilities in recent years to cope with increased utilisation, estimated to cost $85 million.[22]

Bail hostels have been muted as a possible means to address some of the issues surrounding bail,[23],[24], [25],[26] with the added benefit of reducing costs.[27]

A bail hostel provides for secure hostel-like accommodation, with support staff visits to assist in the maintenance of bail conditions. They are generally not used as an option for people charged with serious violent or sexual offences.

A Bail Hostel

 

We will fund a Bail Hostel in Hobart, and will monitor and evaluate its effectiveness.

Alcohol and Drug Related Offending

In 2006 the Tasmanian Law Reform Institute undertook research into the desirability of establishing a pilot drug court in Tasmania. The assessment found that establishing a drug court could reduce recidivism, produce cost-savings, and have broader community benefits.[28]

While Tasmanian doesn’t have a drug court, we do have a specific program from drug-related offending.

The Court Mandated Diversion is a sentencing option for offenders where their drug use is linked with their offending.[29] It is one of the few options that can effectively break the cycle of addiction-related offending.[30] The program is so successful, that even amongst those who do not successfully complete the program recidivism declines.[31]

In 2016 the Sentencing Advisory Council recommended that the Court Mandated Diversion program be extended to cover alcohol-related offending.[32] This recommendation was supported by Community Legal Centres Tasmania,[33] and was echoed by the Alcohol, Tobacco and Other Drugs Council of Tasmania in 2019.[34]

In 2017 the Court Mandated Diversion program was expanded from 80 to 120 places due to the expansion of Drug Treatment Orders as a sentencing option in the Supreme Court.[35] In 2012, when the cap was at 80 participants, an analysis suggested that demand for the program was about twice as high as the availability.[36] Under current conditions, it is difficult to image demand has done anything other than grow since this time.

A Tasmanian Alcohol and Drug Court

 

We will establish an alcohol and drug court. We will expand the Court Mandated Diversion program to include alcohol-related offending, and fund additional counselling and therapeutic staff for the purposes of removing the cap of the program.

Legal Advice

The Federal Government has issued successive cuts to Community Legal Centres, and State funding, while increasing slightly[37] has failed to keep pace. Community legal centres provide critical, free legal advice, and can be particularly critical for people in vulnerable circumstances.

Legal aid is desperately underfunded. In 2013-14 legal aid received $5.9 million in State funding,[38] this has increased to $8.3 million in 2019-20.[39] In a climate of significantly increased demand[40] this is not nearly enough. In addition, the Liberals have continued to provide no funding at all to the Environment Defenders Office, which is also a recognised Community Legal Centre. This is a manifestly ideological decision, and leaves the EDO dependant on philanthropic support for its crucial work in legal advice and representation in relation to environmental and planning public interest matters.

Free Legal Advice

 

We fund all 7 CLCs an additional $400,000 per year, with an additional $400,000 per year for the Women’s Legal Service, who have a particularly critical workload. This grant funding will be indexed annually at 3% to ensure service levels can stay the same in real terms.

We will also increase base funding for Legal Aid by $2 million per year, indexed at 3% per year.

 



[1] Tasmanian Government, Getting Tough on Crime, 2014.

[2] Mauer, M, Why Are Tough on Crime Policies So Popular, Stanford Law & Policy Review, Vol 11, no. 1, 1999.

[3] Hickman, M, Crime in the streets — A moral panic: Understanding “get tough” policies in the criminal justice system, American Journal of Criminal Justice, Vol. 7, 1982, 2016.

[4] Productivitiy Commission, Corrective Services, Report on Government Services 2021, Part C, Section 8, 2021.

[5] Ibid.

[6] Ibid.

[7] Office of the Custodial Inspector Tasmania, Inspection of Adult Custodial Services in Tasmania, 2018.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Productivitiy Commission, Corrective Services, Report on Government Services 2021, Part C, Section 8, 2021.

[12] Ibid.

[13] Tasmanian Audit Office, Tasmania Prison Service: use of resources, Report of the Auditor-General No. 3 of 2019-20, 2019, p. 3.

[14] Office of the Custodial Inspector Tasmania, Resources and Systems Inspection Report, Inspection of Adult Custodial Services in Tasmania, 2019.

[15] Office of the Custodial Inspector Tasmania, Rehabilitation and Reintegration Inspection Report, Inspection of Adult Custodial Services in Tasmania, 2018.

[16] Department of Justice, Annual Report 2013-14, 2014.

[17] Department of Justice, Annual Report 2019-20, 2020.

[18] Productivitiy Commission, Youth Justice Services, Report on Government Services 2021, Part F, Section 17, 2021.

[19] Willis, M, Bail support: A review of the literature, 2017.

[20] Australian Bureau of Statistics, Prisoners in Australia.

[21] Productivitiy Commission, Corrective Services, Report on Government Services 2021, Part C, Section 8, 2021.

[22] Tasmanian Government, Budget Paper No 1, 2020-21 Tasmanian Budget, 2020.

[23] Magistrates Court of Tasmania, Hobart Specialised Youth Justice Court Pilot, Evaluation Report, 2013.

[24] Commissioner for Children, Alternatives for Secure Youth Detention in Tasmania, 2013.

[25] Willis, M, Bail support: A review of the literature, 2017.

[26] Australian Law Reform Commission, Bail, 2019.

[27] BBC News, Ministers plan to send more prisoners into bail hostels, 2010.

[28] Tasmanian Law Reform Institute, The Establishment of a Drug Court Pilotin Tasmania, 2006, p. 79.

[29] Magistrates Court of Tasmania, Doing a drug treatment order, n.d.

[30] Tasmanian Government, Submission to the Parliamentary Joint Committee on Law Enforcement Inquiry Into Crystal Methamphetamine (Ice), 2015.

[31] Moore, L, Tackling drug crime the TJ way: Report on therapeutic jurisprudence and the Tasmanian Court Mandated Diversion program, Department of Justice, 2012.

[32] Sentencing Advisory Council, Phasing out of Suspended Sentencing, Final Report, 2016.

[33] Community Legal Centres Tasmania, Re: Phasing out of Suspended Sentences Consultation Paper, 2015.

[34] Alcohol, Tobacco and Other Drugs Council of Tasmania, Strengthening Tasmania’s justice response to problematic alcohol and other drug use, 2019.

[35] Guy Barnett, Increased cap for Court Mandated Diversion program, 2017.

[36] Moore, L, Tackling drug crime the TJ way: Report on therapeutic jurisprudence and the Tasmanian Court Mandated Diversion program, Department of Justice, 2012.

[37] Tasmanian Government, Budget Paper No 2, 2020-21 Tasmanian Budget.

[38] Legal Aid Commission of Tasmania, Annual Report, 2014.

[39] Legal Aid Commission of Tasmania, Annual Report, 2020.

[40] Ibid.