Qld Prisons

Incarceration through an economic lens? The draft report of the inquiry by the Queensland Productivity Commission into Imprisonment and Recidivism comments

• The rate of imprisonment in Queensland—the number of prisoners per head of population—has increased by 44 per cent between 2012 and 2018. This increase is being driven by behavioural, policy and system changes, not underlying rates of crime, which have been falling steadily for the last 20 years. The median prison term is short (3.9 months) and most (65 per cent) are for non-violent offences. 
• Imprisonment is expensive: It costs around $107,000 to accommodate a prisoner for a year.  Imprisonment also has indirect costs on prisoners, their families and communities. These costs are difficult to estimate, but could be around $40,000 per prisoner per year. At the current rate of growth, Queensland will require an additional 4,600 to 5,800 additional prison cells by 2025—this will require around $5.2 to 6.5 billion in infrastructure costs alone. 
• Imprisonment benefits the community where it incapacitates and deters offenders, particularly where it prevents high-harm offences. However, preliminary analysis suggests that:  for a material portion of Queensland’s prison population, the costs of imprisonment outweigh the benefits to the community; for a further portion, lower cost alternatives would provide greater benefits to the community. 
•  Every month over 1,000 prisoners are released back into the community. Many receive limited rehabilitation or support to reintegrate. Over 50 per cent will be back in prison or under community supervision within two years. 
• There are no easy policy solutions. Options that will have a meaningful impact on the prison population will require significant and politically challenging changes to the way things are done. 

Four priority areas for reform are most likely to improve outcomes for the community.

1. Adopt more effective ways to deal with offending 

• Redefine offences currently classified as crimes where the costs of criminalisation outweigh the benefits (possible offences include some regulatory, illicit drug and public nuisance offences). 

• Establish a victim restitution and restoration process. 

• Increase non-prison sentencing options, including home detention, monetary penalties and community-based orders, and remove unnecessary restrictions on these options. 

2. Break the cycle of reoffending 

• Reconfigure rehabilitation and reintegration through an effective service delivery model of throughcare. 

• Remove regulatory and other barriers to reintegration and employment. 

3. Reduce interactions with the criminal justice system 

• Increase diversionary options, including cautions. 

•  Fill the gaps in prevention and early intervention. 

4. Build a better decision-making architecture 

• Change the way funding and policy decisions are made, by establishing a separate justice reform office that is accountable for criminal justice system outcomes.

The report states

Across Australia and other developed countries, governments are contending with rising imprisonment and high levels of recidivism. In Queensland, the number of people in prisons has risen by around 58 per cent between 2012 and 2018. The rate of imprisonment—the number of prisoners per head of population—increased by 44 per cent. Infrastructure has not kept up with this growth, with prisons currently holding around 37 per cent more prisoners than they are designed to hold. 

More than half of prisoners reoffend and are given a new sentence of imprisonment or community supervision within two years of their release. The rate of imprisonment for Aboriginal and Torres Strait Islander people continues to outstrip the rate for the rest of the population, and imprisonment rates for women have been increasing faster than for men. 

The growth in prisoner numbers has significant social and economic implications for the Queensland community, affected individuals and their families, and the Queensland Government. 

In September 2018, the Queensland Government asked the Commission to undertake an inquiry into imprisonment and recidivism in Queensland. The terms of reference for this inquiry ask us to examine how government resources and policies can be best used to reduce imprisonment and recidivism and improve outcomes for the community over the medium to longer term. 

There are many factors that influence imprisonment and recidivism. The scope of this inquiry therefore encompasses a broad set of issues and areas—from early intervention to post- prison support. Our approach to this inquiry reflects that there have been at least 10 major reviews looking at aspects of the criminal justice system in Queensland over the last decade. Many of their recommendations are still being implemented. The Commission has built on, rather than revisit, the issues covered by these reviews. 

The terms of reference ask us to consider:

• trends in imprisonment and recidivism and the causal factors underlying these trends 

• factors affecting imprisonment for Aboriginal and Torres Strait Islander people, women and young people 

• the benefits and costs of imprisonment, including its social effects, financial costs and effectiveness in reducing/preventing crime 

• the effectiveness of programs and services in Australia and overseas to reduce the number of people in prison and returning to prison, including prevention and early intervention approaches, non-imprisonment sentencing options, and the rehabilitation and reintegration of prisoners 

• the efficacy of adopting an investment approach, whereby investments in prevention, early intervention and rehabilitation deliver benefits and savings over the longer term. 

The terms of reference require that our recommendations are consistent with the Queensland Government Policy on the Contracting-out of Services, which states that there will be no contracting-out of services currently provided by the Queensland Government unless it can be clearly demonstrated to be in the public interest. 

As this is a forward-looking inquiry, we have not assessed the extent to which additional prison infrastructure is required to address current levels of overcrowding, nor have we conducted an operational review of each element of the criminal justice system. Rather, we have focused on policy areas where change is most likely to provide the largest benefits for the community. 

The inquiry is predominantly concerned with the adult corrections system. In this context, the Commission has considered the youth justice system as an important pathway into the adult corrections system. Further, the Queensland Government has only recently completed its Youth Justice Strategy for 2019–23 following the 2018 Report on Youth Justice (the Atkinson report). For this reason, the Commission has not conducted a review of the youth justice system for this draft report. 

This draft report represents the first stage of the inquiry. It presents initial findings and recommendations based on the evidence received so far. 

To prepare this draft report, we released an issues paper (September 2018) and consulted with more than 400 stakeholders through: public forums in Brisbane, Townsville, Cairns and Rockhampton; individual meetings with a wide range of stakeholders including the judiciary, unions, legal advocates, peak bodies, Indigenous and non- Indigenous advocacy groups, service providers, academics and government; visits to drug and Murri courts; site visits to four correction centres. 

We also received 43 written submissions, which have been incorporated in our analysis. The policy areas under consideration for this inquiry are complex and potentially controversial, and the evidence is not always clear or settled. For some areas, the Commission is still analysing the evidence to understand why imprisonment levels in Queensland have been rising, particularly for women and Aboriginal and Torres Strait Islander peoples. The Commission is also yet to fully analyse the costs and benefits of potential reform options. 

As a result, the analysis in this report should be considered as preliminary—the purpose of this draft report is to seek further comment on the findings and recommendations. The Commission intends to release supporting papers for consultation during 2019, which will examine trends in imprisonment and recidivism. Following a second round of consultation, we will develop final findings and recommendations and deliver a final report to the Queensland Government by 1 August 2019.

The Commission's draft recommendations are

The draft recommendations outline the key reforms the Commission considers will reduce the use of imprisonment and reduce reoffending in the medium to long term. The Commission's view is that the draft recommendations are unlikely to compromise community safety and, by addressing many of the issues that drive offending are, instead, likely to make the community safer over the longer term. However, the policy areas under consideration for this inquiry are complex and potentially controversial, with evidence that is not always clear or settled. For some areas, the Commission is still analysing the evidence, including data from Queensland Government agencies. Therefore, each of these proposed reforms will require more analysis to ensure they can be implemented in a way that will deliver the best outcomes for the community. 

The Commission is seeking further comments from stakeholders on each of these recommendations. 

Reduce the scope of criminal offences 

R1 The Queensland Government should seek to remove those activities from the Criminal Code Act 1899 and other relevant legislation, for which the benefits of being included do not outweigh the costs. This reform should focus on, but not be limited to, acts that do not have an obvious victim, including: • public order offences • illicit drugs offences • regulatory offences. When assessing whether an activity should be redefined, consideration should be given to: • the extent to which the activity causes harm to others • the costs that criminal sanctions impose on offenders and whether these costs are proportionate to the harm caused to others • the extent to which criminal sanctions deter harmful offending • whether criminalisation has unintended consequences that result in greater harm • whether criminalisation undermines public perception of the legitimacy of the law. 

2 To support any changes to the use of criminal law, the Queensland Government should develop alternative policy approaches where required, including: • incentives to reduce undesirable behaviours, such as civil remedies, tax and regulatory regimes and other non-criminal sanctions • education and information provision, to highlight potential harms from newly decriminalised acts • health responses, such as those that address mental health and drug problems. Information request 

The Commission is seeking further information on the following issues: • What current offences do not warrant being defined as an offence? What current offences do not warrant being defined as an offence if imprisonment is a potential punishment? • What offences, if any, are candidates for downgrading from a criminal offence or misdemeanour to a simple offence or to a regulatory offence? • Is there scope for greater use of the civil law, and for which offences? • Does criminalisation impede a health–based response to the problem of illicit drug usage? • Are there approaches to drug reform that offer significant net benefits? 

Provide options for victim involvement 

R3 The Queensland Government should introduce victim-focused restitution and restoration into the sentencing process. This system should: • give victims the option of engaging in a process of restitution and restoration with the offender prior to sentencing • provide victims and offenders with a wide range of options for achieving restoration for harms inflicted, including financial and non-financial compensation • reflect and enforce, through the sentencing process, agreements that are reached between the victim and offender • provide mechanisms to ensure that courts consider any residual public interest in final sentencing • allow normal court processes to proceed where victims choose not to pursue restitution or restoration or where victims and offenders cannot reach agreement • include appropriate protections for victims and offenders. Victim-focused restitution and restoration should be made available for any offence where a victim is identifiable. 

The Commission is seeking information on the design of a victim restitution and restoration system, including: • key design features such as: – the principles that should guide the residual public interest test – mechanisms to minimise the risk of unnecessary delays – any processes needed where offenders do not fulfil their agreed obligations • whether restoration principles should be included as a sentencing purpose in the Penalties and Sentencing Act 1992 • how restitution and restoration may best meet the needs of Indigenous communities • key risks, costs and benefits, including potential unintended consequences. 

Increase the range of non-custodial sanctions 

R4 The Queensland Government should reform sentencing legislation to: • make sentences involving home detention available to courts • allow courts to impose custodial sentences in low security correctional facilities • remove restrictions on the use of monetary penalties, community service and community-based orders, or the combination of these orders with other sentences. To encourage the appropriate use of non-custodial sentencing, the Queensland Government should: • establish a mechanism to allocate resources to community corrections to support changing court sentencing practices • amend section 9(2) of the Penalties and Sentences Act 1992 to include a consideration of the costs of sentencing options, including the financial costs imposed on the community • review legislated restrictions on judicial discretion to check if they are serving their intended purpose. To ensure sentencing options support community safety and rehabilitation, the Queensland Government should introduce pre-sentence assessment of offenders who may be facing prisons terms. 

R5 To strengthen community confidence in sentencing, the Queensland Government should: • expand the role of the Queensland Sentencing Advisory Council in producing and communicating an evidence base for sentencing and assessing sentencing in Queensland against this evidence • introduce judicial self-monitoring, independent external review or other appropriate mechanisms to improve the consistency of sentencing outcomes for lower level offences where appeals mechanisms are infrequently used. 

The Commission is seeking further information on: • the extent to which the proposed changes to sentencing would result in ‘net widening’, whether this would be desirable, and, if not, ways that it can be managed • the consistency of sentencing outcomes and appropriate ways for sentencing consistency to be monitored in the Magistrates Court • whether victims of crimes should be given the right to instruct the Director of Public Prosecutions to seek leave to appeal against a sentence handed down by a District or Supreme Court. Reduce the use of remand 

R6 To encourage confidence in, and greater use of bail, the Queensland Government should: • develop evidence-based risk assessment tools to assist police and courts when considering bail applications • make available, through legislative amendment, a greater range of non-custodial options to courts, including the use of electronic monitoring and home detention • establish a mechanism to allocate resources to support any changes in the use of community-based supervision • trial remand accommodation options for homeless offenders, including bail hostels and low security custodial facilities • consider extending the operations of Court Link and QMERIT to more locations. 

R7 The Queensland Government should assess whether there are opportunities to reduce time spent on remand by reducing court delays and increasing time for bail hearings. 

R8 To provide greater guidance to courts, the Queensland Government should insert ‘guiding principles’ into the Bail Act 1980, based on the following principles: • maximising the safety of the community and persons affected by crime • taking account of the presumption of innocence and the right to liberty • taking account of the cost of imprisonment to the community • promoting transparency and consistency in bail decision-making • promoting public understanding of bail practices and procedures. 

The Commission is seeking further information on: • the causes of the growth in the remand prisoner population • the causes for delays in court proceedings and possible remedies • any changes to court procedures that could improve decision-making • bail support services and non-custodial options that would improve the effectiveness of, and confidence in, non-remand options • how police and courts should consider risk when assessing bail applications. 

Improve rehabilitation and reintegration 

R9 The Queensland Government should modify legislation, policy and operational procedures to include a clear and specific objective of rehabilitation and reintegration of prisoners. 

R10 To improve rehabilitation and reintegration of prisoners, and to reduce recidivism, the Queensland Government should introduce an effective throughcare model into the adult criminal justice system. The features of this model should include: • clear objectives to rehabilitate and reintegrate prisoners • adequate resourcing to meet these objectives • a focus on individual rehabilitation needs of prisoners • coordinated service delivery • sufficient delegation of authority • transparency and accountability mechanisms that would encourage continuous improvement • incentives to reduce reoffending. In developing this model, consideration should be given to ways to foster markets and community involvement in services that support rehabilitation and reintegration. 

The Commission is seeking evidence from stakeholders on: • the arrangements that would best encourage continuous improvement and effective and efficient rehabilitation and reintegration of prisoners • the appropriate starting point for throughcare in the adult corrections system. 

R11 When Queensland Corrective Services develops its capital program for building new corrections centres or when modifying existing facilities, it should assess options to make infrastructure more effective for prisoner rehabilitation. Consideration should be given to: • the best available international evidence on the effect of infrastructure on rehabilitation • cost-effective options to improve rehabilitation of prisoners. 

The Commission is seeking information on: • completion rates of in-prison programs and the evidence from evaluations or other studies of the contribution of in-prison programs to reducing recidivism in Queensland • how QCS considers the impact on rehabilitation when designing its capital program • the incentives for: – prison managers, to encourage prisoners to participate in and complete programs within prisons and to engage in meaningful employment – prisoners, to participate in and complete programs within prisons and to engage in meaningful employment – course providers, to encourage prisoners to participate in and complete programs within prisons • changes to governance arrangements that would improve rehabilitation and reduce recidivism. 

R12 To lower reoffending, the Queensland Government should improve the likelihood of successful reintegration by: • removing regulatory impediments to reintegration, including the lack of work release options, and uncertain release dates • introducing measures to ensure parole workers’ caseloads support effective community supervision • providing sufficient flexibility on release dates to allow Corrective Services to effectively prepare prisoners for release • ensuring all prisoners, at release, have up-to-date identity documents, including a Medicare card and birth certificate, a driver's licence and bank account where required, and information on social welfare and employment services. 

Further information is sought on: • the number of prisoners receiving reintegration support from government service providers, and the costs of these services • the number of released prisoners accessing government-funded housing each month • the extent to which the NGO sector is supporting prisoners with accommodation (not funded by government) • the number of prisoners released without a planned release date and any problems this creates for the delivery of reintegration services • options for linking released prisoners to accommodation services without government funding • the practicality and value of developing temporary release programs for prisoners in the final stage of a prison sentence. 

Address gaps in prevention and early intervention 

R13 To progress initiatives relating to the youth justice system, the Queensland Government should publish its Youth Justice Action Plan in response to the Report on Youth Justice. As part of this response, the government should publicly report on recommendations and evaluation of programs. 

R14 In implementing the recommendations of the Service delivery to Queensland’s remote and Indigenous communities report, the Queensland Government should prioritise recommendations that address the causal factors for offending, such as entrenched economic disadvantage, including: • removing barriers to local economic activity, including ensuring that procurement and job requirements do not exclude local participation • developing a land tenure reform plan that better supports economic development in remote communities • reforming policies that facilitate the growth of the Indigenous private sector • investigating ways to develop community and market initiatives in Indigenous communities including through the use of arm's length funding arrangements that devolve authority to communities. 

R15 The Queensland Government should: • fill gaps in preventative service delivery where stigmatisation prevents accessibility or funding (such as programs that encourage self-referrals to prevent sexual offending), and establish trials where these are suitable • establish a trial program through schools to identify and better support at-risk children to prevent disengagement from the education system. 

The Commission is seeking further information on: • any deficiencies in prevention and early intervention strategies operating in Queensland • options that are likely to address the underlying causes of incarceration of Indigenous Queenslanders • options that would increase accessibility of stigmatised preventative programs • supports that are required to keep at-risk children in schools. 

Expand diversionary options 

R16 To prevent unnecessary interactions with the criminal justice system, and to better treat offending behaviour, the Queensland Government should: • review current practice and establish KPIs to encourage the efficient use of police discretion, diversion and cautions • introduce additional diversionary options for police, including on-the-spot fines, conditional referrals and additional cautioning options • develop a simple public interest test for police, to encourage and guide the use of discretion. To support these changes, reporting and monitoring arrangements will need to be in place to ensure public confidence and accountability. 

The Commission is seeking information on: • other options that would be effective in reducing unproductive interactions with the criminal justice system • issues that a simplified public interest test should consider • whether there would be benefits from reversing the onus of the public interest test used by public prosecutors for selected low-harm or ‘victimless’ offences • reporting and monitoring arrangements that would ensure public confidence and accountability on the way that police discretion is used. 

Build a better decision-making architecture 

R17 The Queensland Government should establish a justice reform office to: • coordinate and review policy and budget submissions from the core criminal justice sector agencies to cabinet and cabinet committees • implement justice system reforms • advise government of priority criminal justice policy issues • lead and support evidence-based policymaking. The office should be responsible to a suitably constituted board that includes representation from each of the core criminal justice agencies and independent experts. 

R18 The Queensland Government should require the justice reform office to introduce the following specific reforms: • common performance objectives and indicators across the core criminal justice agencies, including targets for: – reducing offending and reoffending rates, including for youth and women – closing the gap on Indigenous incarceration • mechanisms for allocating resources to support system objectives • systems to provide accurate and timely data to support decision-making, and improved transparency and accountability • modelling that promotes understanding of how policy and other proposals are likely to impact across the system • mechanisms to ensure decision-makers are informed of the full impacts of policy proposals on the criminal justice system, clients and stakeholders, such as: – incorporating justice system proposals into the existing regulatory impact assessment process – introducing a formal test to assess impacts across the criminal justice system. These reforms are to be introduced within 24 months of the reform office’s establishment.