Working Group 4 - Alternatives to Traditional Approaches in Criminal Law
Unlike the civil jurisdiction, the criminal justice system does not offer people a choice of whether to participate or not—they are compelled to. This working group focused on alternatives to traditional approaches in criminal law. The participants defined traditional approaches loosely as the adversarial process, and a preference for custodial sentencing as penalty. They took a broad view of ‘alternatives’ that encompassed police practices, other than charging; alternative processes and alternative penalties.
The working group progressed by first identifying ‘alternative’ mechanisms that currently operate in NSW, followed by the relevant strengths and weaknesses of the various options. The group also briefly discussed strategies for improvement. There were some recurrent themes that related to discretion, greater accountability, procedural fairness and the cultural insensitivity involved in the blanket application of alternatives.
The overarching agenda of the working group was to identify issues in common. It was hoped that these points of connection might lead to joint strategies to improve the system. Due to the constitution of the group, discussion centred on young people, Indigenous people, people with disabilities and people who live in rural, regional and remote areas.
Policing: alternatives to charging
During the roundtable, there was extensive discussion about the exercise of police discretion where it falls short of charging a suspect with an offence. The options open to police were identified as: directing a person to move on,1 and issuing warnings, cautions and on-the-spot fines. These were envisaged as alternative approaches because, to a greater or lesser extent, they have the potential to divert people away from the criminal justice system.
However, move on powers, warnings and cautions have been known to invite and escalate conflict and have failed to be applied in a neutral way. It was suggested that police powers have not been used impartially, particularly in relation to certain groups. The working group participants noted this problem:
The data is really clear that indigenous people are least likely to benefit from cautions.
Aboriginal kids are equally likely to be dealt with by way of warning or conference but not by caution. They’re more likely to go before the courts. So there’s something missing there in terms of police compliance with the Act.2
I’m particularly interested in the accountability regimes that don’t exist in relation to cautioning and who gets the access to it. I don’t think groups are equally positioned to get the benefits of it as opposed to an arrest or summons.
While some disadvantaged groups were represented as not getting access to cautions, one participant noted that people with disabilities appear to attract them:
People with disabilities are only getting cautions—the system doesn’t actually help them. Many times they do not understand the caution hence they are unaware of what they have done wrong or the potential implications if they do something again. This is particularly true for people with intellectual disabilities, but to some extent is also true for people with psychiatric disabilities.
This seemingly discriminate application of cautions by police raised many concerns for the working group. There was criticism of the Police Service’s management style, which puts pressure on police officers to meet particular performance standards:
Police officers, however, were not treated as an entirely homogenous group:
There’s some coppers that really work positively with Aboriginal kids in the country. They’re the only 24-hour service in town—if they don’t work positively with their communities then they’ll be run out of town.
Another participant emphasised that the police service could operate differently and not deviate from its main purpose:
Their primary mission, their founding mission, is not to arrest people. It’s fundamentally to prevent crime and maintain order.
The group collectively stressed that one strategy to deal with this problem would be for police management to develop alternative performance indicators that recognise and reward police for not charging alleged offenders. For example, this might involve envisaging a reduction in arrests, or creative alternatives to arresting offenders, as a measure of performance.
The participants of the group also discussed how decisions made by police can have significant repercussions for those not experiencing the benefit of more diversionary methods, particularly in an increasingly ‘law and order’ climate:
The police are reluctant to proceed by way of summons,3 especially for specific groups, as an alternative to charging. If more people of particular populations are charged and bail determinations have to be made for them, then with the changes to the Bail Act, more people will end up in prison on remand.
The group decided that the source of the discriminatory conduct was too much police discretion and inadequate systems of accountability:
There are very unclear principles, I think, in police practices and the law is extremely discretionary and that comes into the question of recording reasons and then who looks at the reasons. So much legislation now… you know they have to record the reasons why they proceed one way or another… but who looks at that?
A clear distinction was asserted between the limited review of the integrity of police decisions for adults and the way that decisions are required to be monitored when they relate to young people:
The Young Offenders Act has got very strict requirements about evaluation and monitoring. The three-year statutory evaluation is about to be tabled in Parliament. There is an advisory committee that looks at the data on a very regular basis.
The police have also enhanced their data collection system around the Young Offenders Act so they can drill down and identify if an aboriginal child in a particular police station was charged or put before the court by way of summons or court attendance notice. They can identify, because they must be recorded, the reasons why that child was put before the court.
The protections offered by the Young Offenders Act
aside, there were grave concerns in relation to police practices:
The Ombudsman was mentioned as a mechanism for accountability, but it was noted that the process relies upon a person’s willingness to make a complaint. The complaint model, as opposed to a system of standards and monitoring activities, means that scrutiny only happens after the fact, and may not have an impact on police culture:
In my view, the Ombo has their place, but they’re always after the event and some time after the event so by the time they get back to the individual or the group of officers or the individual that’s been harmed, everyone has long moved on and it’s very easy to say from a particular perspective, this happened or did not happen.
When the topic of discretion was examined more closely, one participant seemed to suggest that, in the hands of the police, there is comparatively less cause for concern:
Who do I prefer? The police—they work in a hierarchical system, they are subject to the command and control model. If they’re told ‘this is law, and you must comply with it’ and they get the support from the top, then they do it. They might kick and scream to the Minister if they don’t like it, but they’ll do it. Magistrates—judicial discretion: ‘I like this Act’ or ‘I don’t like this Act’; ‘I’ll use it’ or ‘I won’t.’ I’ve heard that from their lips.
The same speaker raised a strategy to deal with the problem of judicial discretion: to train magistrates when they first begin judicial work, before certain mindsets become entrenched. The same, presumably, could be said for the training of new recruits to the police service, in how to exercise the discretion with which they have been empowered.
On-the-spot fines were also flagged as an area of concern, particularly for Indigenous people, young people and people in rural, regional and remote areas:
Fines will clearly have an impact that is commensurate with people’s socio-economic status. A person who can afford it, will perceive a fine as an inconvenience, an annoyance. However, for someone without the financial means to pay a fine, the consequences can be very severe.
…With that build up of fines… they can’t get their license. I know one fellow that’s in a small place in Menindee, which is 110kms from Broken Hill… At the time it seemed like a good option to put your hand up and say ‘I’ll admit to this and take the discount’, but the problem was he wasn’t able to get that $1000 together to get his license back. So the problem is then, he’s got a transport problem. If he’s going to get a job, he needs a car to get to work. And of course what happens is that that’s a far bigger penalty—the penalty is not being able to get around, so in the end, it just creates another cycle…
The other problem is then the pressure is on the family, because they’ve got to drive him. They haven’t got much money for petrol so all this tension develops and the whole thing socially—he’s in a place where there’s a hundred permanent residents—I don’t think there’s anyone his own age—so for him to even see his mates, he doesn’t even have a way of getting to see them. So in a sense, you have health problems developing….
One strategy raised in the session to break this cycle was to inform people better about their options in relation to fines:
I think what they do now, what we’ve told [aboriginal] people, is that you can call all your fines in—you can cut them out in community hours—they can do that. All they have to do is go to a magistrate and say, ‘I want to call all my fines in’. They might only do 40 or 50 hours of community work and cut all those fines out, but a lot of people don’t know they can do that…
While this course of action may provide some practical solutions for people stuck in the fine cycle, participants observed that it does nothing to redress the inequality of one person having to work off their fines and another, better off person, simply paying them off.
Perhaps a more effective measure was suggested for children that involved steering them away from being fined in the first place:
I was in Moree the other week and they were talking about it—the Aboriginal people were talking about some of the fines that their kids had already built up. It’s an alternative that we didn’t talk about this morning that’s really impacting on young people. We’re trying to bring it under the regime of the Young Offender’s Act so that police will warn rather than issue an infringement notice. Or at most caution.
No one suggested that this was a viable option for adults, but it would seem there are sound policy reasons for refraining from fining children. It was evident from the group discussion that one of these is that children are much less likely to have the financial capacity to pay fines.
The second main category of existing mechanisms discussed by the working group was alternative processes. These were considered as alternative to traditional approaches when they challenged or attenuated the adversarial system in some way. The debate centred on youth conferencing and circle sentencing. There was also some discussion of the rise of therapeutic jurisprudence, which manifests in specialist judicial bodies such as drug courts and the Mental Health Tribunal.
The group was very critical of the adversarial system, especially in the context of the criminal jurisdiction. They questioned the capacity of the system to reveal all the pertinent, not just admissible, facts of the case:
The adversarial system itself is always looked at in a binary system—whereas anyone who’s actually gone through and experienced a court case will understand that neither side is arguing anything close to what either side thinks is the truth… It’s a binary/zero sum thing. So if I’m prepared to say anything that doesn’t help my case, by implication I’m helping the other case. So it doesn’t help us to arrive at anything that’s either truthful or satisfactory. I think that’s really going to be the key to resolving criminal justice issues.
Another participant posed the question:
Should we be looking at opening up the whole question about whether the adversarial system is the best way to deal with crime?
A member of the working group related an anecdote about the circle sentencing trial that has been underway in Nowra since April of this year. The story was illustrative of how the limits of the adversarial system can be positively challenged by alternative processes:
There was a situation where a man had been picked up many, many times for assault and they kept sentencing him and he’d go through the whole process then he’d get out and then he’d assault again—this happened for years. Then this time, it was agreed that it would be dealt with by circle sentencing—and what came out of that process was really incredible. It turned out that this man, several years ago had acquired a head injury and he had medication but because of the effects of the medication, he didn’t like to take it. So to dull the pain that he was still experiencing many years after the injury, he would drink. And he would turn around and get angry and end up assaulting someone. And through the circle sentencing process, they actually came to realise that he wasn’t such a bad guy—he needed medical treatment. Sure, that’s not anything new, but it draws out the fact that in courts—well it hadn’t come out in years. But through this process it could because it is an intimate process where you have several different people, from different parts of this person’s community, involved.
This story highlighted the issues in relation to the traditional court system and the operation of legal forms. The adversarial system maintains strict evidentiary rules that can prevent relevant evidence from being scrutinised. This was considered to be particularly troubling in the criminal jurisdiction, where there is so much at stake for individuals.
The persistence of strict procedural rules related to criminal court processes was seen to have a detrimental impact on particular people:
One really central one that comes up over and over again is the really formalised structured nature of how these things are resolved. If you don’t show up on the day of your hearing, because you don’t even know what goddam day it is because of the amount of medication you’re taking or whatever your issue is—nobody’s going to come out there and remind you—they’ll just issue a warrant for your arrest.
This problem was thought to be easily and inexpensively resolved:
Issues about admissibility of evidence and court procedures, that seemed to be wedded to the adversarial system, were experienced as barriers to accessing justice by all groups represented by participants in this working group.
Youth conferencing was raised as another alternative process that resists the convention of pitting the prosecution/State against the offender, as adversaries. The conferencing scheme, which operates in the NSW Department of Juvenile Justice, brings together victim(s), offender(s) and other interested parties in an attempt to resolve the matter cooperatively.
To young offenders it’s about participating in decision-making—so it’s a lot more textured in terms of the issues you’re thinking about. Moving away from the adversarial system but working around alternatives in the shadow of the law—in the structure of a piece of legislation that’s trying to balance the needs and rights and desires of the whole range of people.
One of the strengths of youth conferencing was identified as its ability to involve community members. This can have the effect of minimising or eliminating the demonisation of young offenders:
The kids were referred to a conference and, particularly in a small town, I think that was the way to deal with it because everyone knew about it and it needed to be dealt with as a community issue…
Another person in the working group considered that restorative justice movements still rely upon adversarial constructions, where ‘community’ stands in place of the State. The traditional cohesiveness of ‘community’ was questioned, which in turn raised issues about alternatives and their ability to account for cultural nuances and sensitivities:
When you’ve got a town that’s divided on race lines and the offender’s from one race and the victim’s from another race or something… out in western Sydney where you’ve got Vietnamese who originally came across as unaccompanied refugees, as kids, and the others selling smack in the streets; the other ones that came across are running the businesses in the middle of town—to the outsiders they look like the same Vietnamese Australians, but they don’t see themselves as being part of the same community generally. They’re not likely to see the effects of the offence that’s being dealt with in the same way, so they’re not going to see the solution in the same way.
Some participants in the group wanted to highlight the problems encountered when one kind of process is thought to be appropriate for everyone.
That’s something I’d really like to see addressed in this workshop—the cultural problems with applying various alternatives to different communities.
We need to move away from a solely city focus on where and how alternatives work and how they’re monitored and how they’re evaluated and so on.
What worries me in conferencing for… people with disabilities, is that it’s really reliant on the person being able to articulate or else having really good advocates who can articulate what is really happening for the person. And that the person feels safe enough that they can articulate that. You know, I’m thinking about people with intellectual disabilities who’ve been assaulted.
The youth conferencing scheme was defended on this score:
Now we’re not there yet… but we’re certainly aware that we need to work differently with people who have intellectual disabilities and physical disabilities, and who have identified mental health issues.
But there did seem to be some disagreement about whether traditional or alternative methods offer more protection for people with disabilities:
With a convenor, because they do the face-to-face, one to one, preparation for youth justice conferences, they will usually pick up that the child is not communicating… we’re trying not to replicate the traditional system in ignoring it.
In this circumstance, if you have a hearing impairment, you can’t participate—it’s too hard. There are some safeguards that we have slowly built into traditional systems—that provide reasonable adjustments for people so they can have a fair go and we need to make sure not to lose those in the alternatives.
Concerns about programs being appropriate for everyone were not only voiced in relation to conferencing, but also in connection with other alternatives such as circle sentencing and drug courts. While each alternative may be thought of as successful in one way or another, the following cautionary tale about the drug court was given as an example of how alternative processes can fall down if they are culturally insensitive or inflexible:
South East Asian Australians particularly have much lower uptake of medicalised drug rehabilitation programs and much lower success rates when they do take them up. Why that is? I’ve been looking into all the research for a long time and as far as I can tell, nobody knows…
The woman in the case that I know about for sure went before the drug court and was offered a rehabilitation program and for some cultural reason, presumably to do with how she perceived herself, she refused to take up the option and the magistrate threw the book at her. You know, she got a much, much heavier sentence than you would have expected if she’d just gone through the normal legal system. The legal system seems to imagine that it’s doing people a huge favour by offering an alternative resolution process and therefore if people aren’t prepared to accept that huge favour then it’ll blow up in their face with them not knowing what the reason was.
This punitive response indicates a propensity to work from the assumption that individuals who come before the drug court, or other alternative process, are equally positioned and have given informed consent. This example also raised concerns from the group about the rule of law, which creates the expectation that citizens will have the benefit of knowing what to expect from the legal system, that they are equipped to understand the effects of their decisions:
What are the rules if you’re not complying with what you agreed to do as a result of a drug court hearing? And it becomes a double whammy for people who don’t, or in some cases can’t, for some logical reason, do what they’ve agreed to do. Should the courts have procedural rules that say ‘let’s go back and reconsider this and not sentence you’—all the drug courts are premised on ‘if you do what you agreed to do, then you’ll get out of the system; if you don’t you’ll be dragged further into it’.
Most, if not all, participants of the group cautiously advocated the use of alternative processes. One major reservation shared by them was the need for adequate, reliable funding, which would provide both room for expansion and incentives for success:
We need to find ways to make this money available for these other options… there needs to be acknowledgment so that agencies of the government aren’t pitted against each other all the time—if we can actually reduce some of the funding then that money can be moved over here… and it’s not that these people lose face or are penalised for the fact that they are spending less money.
During this discussion, alternative processes were strongly preferred over the adversarial methods, but with the caveat that they had to be appropriate and flexible, consistent and predictable, and they need to be well resourced.
Some of the discussion in the working group was devoted to penalties that are alternative to full-time custody. These were identified as sentences like community service orders, home and periodic detention, as well as other less familiar alternatives. The participants chose not to critique each alternative and draw out its strengths and weaknesses. Instead, this part of the agenda was dealt with more thematically than the previous sections.
Effects on community sector
One of the themes that emerged during this section was the burden that alternative penalties can place on non-government bodies. Community service order recipients were described as requiring extra time and resources, which are not funded by the Government:
The other thing too with community service orders or this move towards getting more community groups to take more responsibility and get involved. It’s really putting a burden on the NGO sector because they’re already under-resourced, the people are already over-worked … And they’re putting this guilt trip on you, you want to help the individual, but at the same time you’re being used by the government. So you’re not actually getting financially compensated.
In effect, community service orders were presented as an unfunded out-sourcing of corrections.
Another theme that arose built upon the burdensome nature of alternatives, but related more specifically to social infrastructure.
Government wants the Community sector to be there as part of the infrastructure but doesn’t want to fund us so it’s not a problem of funding these particular events or individuals, it’s a problem that some of these alternatives depend on an effective social infrastructure but the government will not invest in that social infrastructure so that it is there to do the job that’s needed.
One participant who represented people from rural and regional areas commented on this strain on social infrastructures:
What happens is that you get the women’s refuge which should only have women with domestic violence, what’s happened is that people from Wilcannia and Menindee, they actually have to travel in to visit someone in the gaol, someone in remand. The problem is that they’re taking up valuable accommodation so a woman will rock up with three or four kids¾the only option in town is for them to stay at the women’s refuge.
It was agreed that the money saved by not imprisoning people on community service orders should be spent on improving social infrastructure:
And that money could go into crime prevention or providing services in towns that don’t have developmental and support services, perhaps setting up a pre-school or providing breakfast for kids in schools or whatever… it doesn’t work that way, it all goes into the pot of Treasury: ‘Yes we’ve saved that money thank you very much’.
The other major theme to emerge from this part of the discussion related to consistency. While it was earlier stressed that the one-size-fits-all approach was inappropriate and had a deleterious effect on some groups, consistency at the policy level was identified as important.
In terms of sentencing options, it becomes clear that not all judicial decision-makers have the same array of choices:
Certainly in terms of alternatives to full-time custody: periodic and home detention are not available in the country.
Home detention is similarly not an available option for those who have all the signs of being the most economically disadvantaged: people without telephones and homeless people.
Sometimes, the problem with consistency was confined to a single sentencing option:
Other community service orders, as mentioned earlier, are served in non-government organisations where the sentenced person can have the appearance of being just another worker.
There was also criticism about decision-makers developing sentences in an ad hoc manner:
I read an interesting article… about a court case in WA where an Aboriginal artist, who’d been charged with a drink driving offence, was sentenced to paint 12 paintings for the City of Broome instead of going into gaol and under the title of ‘Creative Sentencing’—a newspaper article—he was a very famous artist and his paintings were reported to be worth about $4000-$5000 each so I worked it out as being about a $60,000 fine for a drink driving offence…
This was not a criticism of creatively determining a non-custodial sentence that was tailored to an individual, the problem identified was that this ‘fine’ was overly punitive and out of step with the typical range of fines. The concern here was that some measure of equivalence was not even attempted, coupled with the exploitative overtones of the city of Broome profiting from the sentence.
Finally, at the level of criminal justice policy, the lack of consistency between different agents of the system was noted:
Yeah well how is it that [the Department of] Juvenile Justice can resist the pressure to become more punitive but the police and corrective services can’t?
The capacity for the Department of Juvenile Justice to operate with the philosophy that ‘rehabilitation’ is a real possibility is clearly different from the way adults are dealt with by the criminal justice system.
Funding and politics
There was no shortage of criticism of the government and funding difficulties faced by non-government organisations:
Under the way the current funding system works, it’s often worse if [the government] does invest in it because they usually farm these duties out to NGO’s to avoid the problems with the bureaucracy, but then they impose funding requirements that essentially turn the NGO into a branch of the bureaucracy with all the same restrictions.
Every community organisation I talk with is spending two-thirds of their time applying for funding, the short funding cycles just make it almost impossible to get on with your work and get staff that are able to stay confident that they’ll have a job in three years time without having to do ten funding applications.
These funding requirements seemed to participants to be particularly difficult to justify when they impact on crime prevention programs.
If you do it properly at the front end or do it better at the front end, then you save lots of money at the back end because it costs $100,000 to keep one kid in custody for 12 months. So if we can keep 300 kids out for 12 months or four years, you must be saving something like… well do the maths.
The participants agreed that when the economic rationalist arguments fail to have any effect on government policy, it is clear that there is something else at stake:
The question for me is: how do we get the politicians to acknowledge that’s what they do? They ride into an election on the back of demonising young people as ‘the other’, ‘the enemy’; ‘the ones that are causing all the trouble and we will come down hard on them’. So mandatory sentencing—all those sorts of things are part of that—how do I win an election?
Law and order politicking was identified as a significant barrier to the commitment to and success of alternative approaches, both preventative and responsive in nature.
By exploring and critiquing the different alternative approaches to policing, processes and penalties, the working group participants did seem to arrive at some common understandings and experiences. Certainly there was agreement about the barriers preventing access to justice. While these points of connection may not have resulted in the immediate development of joint strategies to address the problems, their ventilation may lead to future partnerships.