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Monday, 14 May 2012, Indaily (online)

Des Ryan

ABORIGINES are the victims of a “terrible social experiment” by federal and state governments that has led generations of them to a prison cell, South Australian Attorney-General John Rau says.

In a blunt assessment, Mr Rau says the failure of government bureaucracies to handle indigenous affairs has its “final expression” in the Corrections system, where the incarceration rate of young Aborigines is 25 times the national average.

“If there was ever a terrible social experiment which demonstrated the need for programs that address the cause of problems rather than the consequences, the incarceration rate demonstrates that,” he told Indaily.

The Attorney-General’s comments came with his official release today of the long-awaited SA government response to the “Smart Justice” report by Thinker  in Residence, US judge Peggy Hora, who delivered her reform package in February last year.

Of the 48 recommendations in Smart Justice, Rau said the government supported 80 per cent of them and more than 50 per cent were already in progress. It did not support 10 recommendations, including a proposal to force offenders to directly reimburse victims for any financial loss they suffer from the crime.

Rau told Indaily that some of Hora’s recommendations were not being adopted simply because the state could not afford them, including the proposed $19 million Southern Community Court  at Christies Beach.

“I think it is unfortunate [that] some perhaps of her more innovative thoughts, because of the financial implications attached to them, are not practicable here and now,” he said.

“I think that unfortunately is where we are. We can’t imagine ourselves into a position where we have more money than we do.”

Hora – a former judge in the California Superior Court – visited Adelaide twice in 2009-10 as part of the Thinker in Residence program, at the suggestion of senior members of the SA judiciary who were concerned about the rising cost and workload pressures in the courts system.

The underlying thesis of Smart Justice is Hora’s belief that the $200 million spent on SA prisons does little to reduce the crime rate or to make the community safer. She suggests the money would better be directed towards programs that supported prisoner rehabilitation.

A key component of her thinking is Justice Reinvestment [JR], the idea that prison budgets should be reduced and the money instead spent on community-based programs aimed at breaking the crime cycle. JR has led to dramatic declines in offences in some crime-riddled areas of the US.

The A-G said he was a big supporter of JR, saying it was “difficult to argue against”.

The problem was to determine which particular programs were going to work in specific communities, he said.

“What might work example in an Aboriginal community in Port Augusta may have little or no application in Hackham West or in Enfield or somewhere else.

“I think the challenge with that Justice Reinvestment approach, which conceptually I think is really on the money, is to find examples of programs which will actually resonate with the people you are attempting to target.”

Given the poor track record of government intervention in Aboriginal communities, Rau was wary.

“Successive governments, state and federal, at least since 1967 have been chucking money and bureaucracy at Aboriginal communities across this country.

“I don’t think there would be any single group in this community who have had more bureaucrats focused on them than Aboriginal people.

“Perhaps an outside-the-box way of looking at a current problem is to say, well, perhaps part of the problem has been that very mode of intervention by government.

“I can’t help but feel that if you had to strip everything away, the fact that Aboriginal people, for whatever reason, have not been encouraged or enabled to have a sense of their own self-determination as individuals.

“But rather [they] have through no fault of their own largely been characterised as clients of a government agency, whatever it might be, is in some respects one of the causes of the problem we are looking at now.”

Rau conceded that in political terms the Smart Justice concepts of prisoner rehabilitation and JR community programs were harder to sell than the “zero tolerance” approach towards law and order.

He said the complex subtleties of rehabilitation were hard to explain to the public and became lost amid accusations that the government was soft on crime.

At the same time, though, he believed some prisoners were beyond redemption.

“There are some people within the justice system … where quite frankly the protection of the public is the number one issue. Whatever might be said about rehabilitation or something else has to come second.

“Now I put serious and organised crime figures in that category. To be perfectly frank I’m not much interested in expending time and effort on Justice Reinvestment programs for those people.”

But hardened criminals were a tiny percentage in the system and Rau said “timely intervention” may make a significant difference for the other, much larger group.

He said that trying to draw a distinction between the two groups was easily misrepresented, however.

“Because if I go out there and try to explain this, somebody who wished to make mischief with what I am saying would say, well, he’s just going to have bikies let out to go off and learn macramé because it will make them feel better.

“It’s easy to misrepresent that. There are some subtleties here than unfortunately are easily lost, difficult to convey and very hard to drop into a four second [TV] grab.”

Meantime, the A-G said he had been having discussions with the SA Legal Services Commission – the provider of legal aid – about restructuring fee payments to lawyers to encourage early pleas of guilt by their clients.

Instead of giving lawyers a “reward payment” for a guilty plea on the first day in court, the reward should apply at the very start of the prosecution process long before it got to court, he said.

“The reason is that a guilty plea on the day of trial, particularly in the District Court, delivers no dividend at all for the court other than you could say, perhaps, a victim or a witness was not put through the tedium or a trauma of having to give evidence.

“Sure, there is that element. But can that court backfill for another case that day? No, it can’t.

“Because … nobody has had any notice that the case would be on that day. So nobody is ready: counsel aren’t ready, prosecutors aren’t ready, defence people aren’t ready and witnesses are not ready.

“So in practical terms for that plea of guilty to yield a dividend in that court it needs to occur at a time substantially earlier than the day when the trial commences.”

He was critical of the state Opposition for blocking legislation last year that would have cut prison sentences by up to 40 per cent in exchange for an early guilty plea within six weeks of arrest or summons.

The Opposition Liberals said shorter sentences did not deliver better justice.

But Rau said an early guilty plea was an intrinsic component of Smart Justice and the defeat of the legislation was in his words “a tragedy”.

“It means that my job in trying to give effect to the aspirations contained in Hora’s report about the speedy disposition of justice has been set back, so that instead of me being able to approach that on five fronts simultaneously, one of them has been closed off to me.

“Now I am intending to put that legislation back in to the Parliament to have another crack but it is very disappointing that we don’t have support from the group of people who would be the alternative government when we are trying to achieve an important outcome like that.”

Rau said it had taken 15 months to pull together a formal response to Hora because Smart Justice involved a joint approach by many government agencies, such as justice, health, welfare, education and indigenous, and it took a while to bundle together those different analyses.

He said no costing had been done on the implementation of Smart Justice and it may not be possible to come up with a figure owing to the multi-agency nature of the recommendations.

“What turns up as a debit in the ledger of one agency might end up being a credit in the line of another. So unless you do a global analysis of the thing you won’t get the correct answer.

“For instance, if you achieve a cost in Courts you may at the same time achieve a better outcome in Corrections. The question is are they equal? Or do you get leverage out of that process delivered by the change in the courts area?

“These are difficult issues and I suspect the reality is there is no mathematical formula by which you can make those assessments. You just have to do it and see what happens.”

Rau said the Response to Smart Justice would be kept under review. “We’ll do an audit at the end of the year perhaps to see how we’re getting on with it.”

To view a video of John Rau discussing Aboriginal incarceration, click here.

To read the full South Australian Government Response to Smart Justice, click here.

To read the original Smart Justice report, click here.


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