In Conversation: Q&A with Attorney General Robert Clark

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1. How would you define your approach to justice and what has informed it over the years? 

Upholding the rule of law and the role of democratically elected Parliaments. Appreciating the value of the laws and legal institutions we have been fortunate to inherit while looking for opportunities to reform and improve.

2. There is a wealth of evidence showing that Victorian prisoners typically come from disadvantaged backgrounds with higher rates of intellectual disability, drug or alcohol issues, homelessness, mental illness, unemployment and poor educational outcomes. What does the role of disadvantage say to you about crime and the way to approach prevention and stopping reoffending?

The prevalence of these problems shows the importance of institutions, organisations and individuals within the community taking whatever further opportunities may be available to tackle the causes. It also highlights the importance of careful investigation, examination and reflection regarding the evidence available as to what those causes consist of and how those causes may best be addressed. However, tackling the causes of social problems is not incompatible with strong and effective sentencing to prevent and deter offending and re-offending and to better protect the community. Indeed, well directed sentencing reform can be supportive of other measures directed to the causes of social problems.

3. The Victorian Auditor-General has highlighted the lack of capacity in Victorian prisons to meet the forecast growth in prisoner numbers and the Department of Justice has said that sentencing reform is the main driver of this growth. Given the high cost of building and operating prisons and the low success rate of prisons in stopping reoffending, is it time to consider a new approach, such as Justice Reinvestment which redirects prison spending to programs that address the underlying causes of crime and strengthen communities?

The Government has committed to provide an additional 500 prison places to provide for additional imprisonment that may result from its sentencing reforms. In addition, the Government is providing further places to make up for the shortfall left by the previous Labor governments. Contrary to the implication in the question, when offenders are behind bars, they are not free in the community committing further offences. However, as indicated above, having stronger and more effective sentences that better protect the community is not inconsistent with, and indeed may help to reinforce, actions to tackle the causes of problems that can lead to crime.

4. What is your view on problem-solving court programs, like the Neighbourhood Justice Centre (NJC) and the Court Integrated Services Program (CISP), that seek to address the underlying causes of crime?

Both the NJC and CISP have valuable roles: the NJC as an innovation hub to pioneer and pilot reforms that can then be applied more broadly across the court system, and CISP to work with courts to help offenders with serious problems get their lives back on track and avoid re-offending.

5. Aboriginal Victorians are around 13 times more likely to be in prison in Victoria than non-Aboriginals. How do we address this?

The Government has recently entered into the third Aboriginal Justice Agreement, giving effect to a partnership between the Government and Koori communities to take a wide range of actions that will help reduce involvement of Koori people with the justice system both as offenders and as victims. This is part of a broader Victorian Government commitment through the Victorian Aboriginal Affairs Framework to continue to tackle a wide range of longstanding problems faced by Koori people. In addition, the Government’s continued engagement with Indigenous communities and successful record in negotiating good outcomes to native title claims through the Traditional Owner Settlement Act is strengthening economic and social opportunities for Indigenous communities.

6. Do you agree that children (under 18) who offend should not be placed in an adult prison and if so, how do we stop this practice in Victoria?

The Children, Youth and Families Act allows the independent Youth Parole Board to transfer young offenders, over 16, to adult prison in some circumstances. Transfers are only made, as a last resort, when highly violent and aggressive behaviour is unmanageable within the existing Youth Justice infrastructure. Work to reduce the need for transfers to adult prison is ongoing.

7. Last year, the Government reaffirmed its commitment to implement the Ombudsman’s recommendation to establish an independent agency to manage, collate and disseminate Victorian crime statistics. When will this agency be established?

Funding to establish a crime statistics agency was provided in this year’s State Budget.

8. Access to justice in Victoria is not only a socioeconomic issue, but geographic, with young people in rural and regional Victoria often being locked up in police cells or prisons simply because there’s no access to bail support or remand. How should we address that inequity?

I understand that the Central After Hours and Bail Placement Service has responded to all requests from police for the provision of support for young people being considered for remand outside business hours.

9. Youth Parole Board figures show that 38 per cent of young people who were in custody in Victoria in October 2011 had previous Child Protection involvement and 65 per cent were victims of abuse, trauma or neglect prior to incarceration. How do we break that nexus?

Since coming to office, the Government has had a key focus on improving the lives of Victoria’s vulnerable children, particularly those in the child protection system. We initiated the Cummins inquiry1 and have made significant additional funding commitments in our first three state budgets. The Government has recently released a whole-ofgovernment vulnerable children strategy — Vulnerable Children — Our Shared Responsibility. This strategy will drive broad-based change across government and the community sector over the next decade, with the specific goals of preventing abuse and neglect, acting earlier when children are vulnerable, and improving outcomes for children in state care.

10. Sentencing reforms such as mandatory minimum jail terms and baseline sentences will increase prison terms and reduce the ability of courts to ensure that the punishment fits the crime. How do you reconcile these changes with research showing that when the public has the same facts about a crime as a court, on average they agree with the court’s sentence?

Determining the law specifying the sentence levels for various crimes is the responsibility of Parliament on behalf of the community. That law is then applied to individual cases by the courts in accordance with the law. Baseline sentences, under which Parliament will set the median non-parole period for specified offences, will enable the community, through Parliament, to have a greater say about the general level of sentences that should apply for such offences, rather than specifying only the maximum sentence available for such offences. Statutory minimum sentences for gross violence send a very clear message to potential offenders that the community will not tolerate crimes of that nature and that those who commit them can expect to go to jail for at least four years unless there is a particular special reason to the contrary as set out in the legislation. While they are behind bars, those sentenced to at least four years’ jail for an offence that is gross both in its degree of violence and its degree of culpability are not able to inflict further crime on the community. While, as one would expect, there is likely to be a higher correlation between the public’s view and the court’s view about sentencing in a particular case when members of the public have access to fuller facts about the case, I do not consider that the research of which I am aware establishes the sweeping proposition set out in the question. I consider there are a number of areas in which both public opinion and expert opinion rightly considers that the sentences resulting from the current law are, either generally or in an appreciable number of individual cases, inadequate in their protection of the community. The Government’s approach to sentencing has involved, and will continue to involve, identifying and targeting sentencing reforms to address those areas of inadequacy.

11. Victorians are being issued with more fines and for higher amounts. Should you be sent to jail if you can’t afford to pay your fines?

The Government is moving to introduce wide-ranging reforms to Victoria’s fines and infringement systems, so that those who wilfully seek to avoid paying can be better brought to account, while those who incur large numbers of fines or infringements as a result of mental illness or other genuine reason can have their situation recognised and addressed more quickly. One element of those reforms is that it will be clear that jail will apply only for culpability in failing to pay or to make arrangements to pay, not for simply being unable to afford to pay.

12. Is the current level of access to legal assistance for Victorians acceptable? If not, how should we improve access to legal help for Victorians who can’t afford to pay for a lawyer? 

The Victorian Government is providing record levels of funding for legal aid and other legal assistance, and Victoria Legal Aid is doing good work to ensure that funding is spent wisely and effectively. Legal help for Victorians would be improved if the Commonwealth Government increased its contribution to legal aid funding. As has been pointed out by parties including the previous Victorian Labor Government and family violence organisations, lack of Commonwealth funding for family law matters has significant consequences for the legal aid budget and for the numbers of family violence and child protection cases coming before State courts.

13. VCOSS welcomed the Government’s discussion paper on diversion for young people. What are your views on diverting young people who offend away from formal criminal justice processes?

Providing young offenders with opportunities such as diversion to learn from their mistakes and address the underlying issues that have led to their offending can divert them from further and more serious crimes and from becoming caught up in the criminal justice system.

14. In the Insight tradition, what books are by your bed? 

Samuel Pepys Diary
Kevin Andrews Maybe, I Do
Richard Langworth (ed) Churchill In His Own Words


1. The Protecting Victoria’s Vulnerable Children Inquiry, chaired by former Victorian Supreme Court Judge Philip Cummins, was established to investigate systemic problems in Victoria’s child protection system and recommend better ways to protect and support vulnerable young Victorians. Its January 2012 report is available at http://www.childprotectioninquiry.vic.gov.au/report-pvvc-inquiry.html

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