From marketisation to self-determination: Contesting state and market through ‘justice reinvestment’

Abstract

Movements for racial and Indigenous justice are targeting rapidly expanding budget allocations for prisons and police. In Australia, Indigenous Communities are seeking to redirect public money from the criminal justice system to Indigenous-controlled services and infrastructure through ‘justice reinvestment’. This article explores the possibilities and tensions of justice reinvestment as a strategy for exercising Indigenous self-determination in a marketised policy landscape. Focusing on the case of Just Reinvest NSW and the Maranguka initiative in Bourke, we compare justice reinvestment to neoliberal ideas of social investment, exemplified by social impact bonds (SIBs). We identify three tools of marketisation in SIBs – liability budgeting, pricing evidence, and devolution to non-state providers – and analyse how these are being engaged, and contested, by Indigenous Communities through justice reinvestment. While incomplete, we discuss how Indigenous-run justice reinvestment initiatives are creatively using these tools against the settler-colonial, carceral state to claim fiscal resources, develop bureaucratic capacity, and institute territorial governance. We argue that justice reinvestment demonstrates the potential to repurpose the tools of marketisation to create alternative ‘hybrid’ spaces of governance that contest both the state and the market.

Introduction

Movements for racial and Indigenous justice are targeting rapidly expanding budget allocations for prisons, police, and other parts of the criminal justice system. Demands from Black Lives Matter activists to ‘defund the police’ reflect an ‘invest-divest’ strategy of redirecting public money from police and prison budgets to social and community services and infrastructure (Jenkins, 2020). In Australia, where incarceration rates for Aboriginal and Torres Strait Islander people exceed those of Black Americans, local Indigenous Communities are pursuing similar goals through ‘justice reinvestment’. Organisations such as Just Reinvest New South Wales (JRNSW), and the Maranguka initiative in the regional town of Bourke, are working to ‘reinvest’ public money that is being spent on expanding prisons into programmes run by and for Indigenous Communities that can reduce incarceration.

Justice reinvestment in Australia represents an important case study of how the marketisation of ‘social reproduction’ – the expansion of market logics into the social foundations of the economy and everyday life – can be contested by repurposing the tools of ‘the market’. Initially proposed in the United States, the implementation of justice reinvestment in Australia follows long traditions of Indigenous resistance against the carceral systems of settler colonialism, where, in the context of limited land rights, sovereign claims to exercise self-determination have been advanced through demands for Community control. What makes justice reinvestment as a strategy for pursuing self-determination distinctive is that it seeks to expand Indigenous Community control by engaging with the marketised language, models, and logic of ‘social investment’ (Baker et al., 2020). This strategy responds to growing policy interest in social investment markets, such as ‘social impact bonds’ (SIBs). However, through demands for Indigenous Community control, advocates for justice reinvestment are contesting elements of these models that have been criticised for opening up social reproduction to private capital, targeting narrow and measurable outcomes, and undermining democratic politics (Berndt and Wirth, 2018; Harvie et al., 2021).

This article explores the complementarities and tensions of justice reinvestment as a strategy for exercising Indigenous self-determination. We argue that justice reinvestment demonstrates the potential to repurpose the tools of marketisation to create space for ‘hybrid’ modes of governance that contest both market and state. Focusing on the case of JRNSW and Maranguka, we show how these initiatives are creating space for Indigenous modes of collective self-governance and autonomy, while nonetheless facing ongoing barriers from the settler-colonial, carceral state. Our analysis reflects a collaboration of the authors with JRNSW. As non-Indigenous political economists, our contribution is focussed on understanding the relationship between marketisation and self-determination in justice reinvestment. On questions of the meaning of Indigenous sovereignty and self-determination, and decision-making over how these are claimed and exercised, we take the lead from Indigenous scholars, and the Indigenous Communities involved with our case study. While our research reflects questions set by JRNSW in response to Indigenous Community priorities, is shaped by ongoing participation in JRNSW's discussions with policy makers, and has been shared with and informed by JRNSW members, our paper does not necessarily reflect the views of JRNSW or any of its members.

We develop our argument across three main sections. The first section draws on Indigenous and post-colonial scholarship to situate justice reinvestment in Australia alongside Indigenous claims for sovereignty and resistance to settler colonialism. The second section situates justice reinvestment as a strategy for exercising self-determination within the marketisation of social reproduction. We use the example of SIBs to identify three key tools of marketised social investment that are engaged by justice reinvestment: capital accounting tools for managing fiscal liabilities; evidence-based policy for measuring and pricing outcomes; and contracts that devolve responsibility from the welfare state to local and non-state actors. SIBs have been presented as one potential mechanism for advancing justice reinvestment in NSW, but one which JRNSW has resisted (Just Reinvest NSW, 2019: 61). The third section applies these insights to our case to explore how JRNSW and Maranguka are contesting the tools of marketisation and the opportunities and tensions this presents for challenging settler colonialism and exercising self-determination.

Justice reinvestment, the Australian carceral-colonial state, and Maranguka

Justice reinvestment in the United States

The idea and initial policy framework for justice reinvestment emerged from the United States. The idea gained prominence through the work of Tucker and Cadora (2003: 2), who argued:

The goal of justice reinvestment is to redirect some portion of the $54 billion America now spends on prisons to rebuilding the human resources and physical infrastructure—the schools, healthcare facilities, parks, and public spaces—of neighborhoods devastated by high levels of incarceration. Justice reinvestment is, however, more than simply rethinking and redirecting public funds. It is also about devolving accountability and responsibility to the local level. Justice reinvestment seeks community level solutions to community level problems.

Government agencies responded with the implementation of the Justice Reinvestment Initiative (JRI) – a joint initiative of Council of State Governments, Pew Charitable Trusts, and the Bureau of Justice Assistance. The JRI launched nationally in 2010 and had enrolled in 27 states by 2015 (Austin et al., 2015).

However, the institutionalisation of the JRI in the United States has seen place-based, community-driven visions of justice reinvestment give way to more top-down, technocratic strategies (Austin et al., 2015; Brown et al., 2016: 54–59; Sabol and Baumann, 2020). Its focus on law reform saw it prioritise work with state-level justice agencies over working with local advocates. Where budgetary change did occur, resources were largely re-allocated within the prison and policing authorities, rather than being reinvested in communities. In a major review, Austin et al. (2015) found that the JRI had reduced the rate of prison growth, but not overall levels of incarceration, and called for a renewed community-based approach to justice reinvestment.

Carceral settler colonialism, Indigenous sovereignty, and self-determination

Australian interest in justice reinvestment adopted the term from the U.S. example but has been shaped in distinctive ways by traditions of Indigenous resistance to Australian settler-colonialism, grounded in claims of Indigenous sovereignty and demands for self-determination. British colonisers declared that the Australian continent was terra nullius: land belonging to no one. As Tanganekald and Meintangk scholar Irene Watson (2002: 257) describes, ‘their claimed sovereignty denied ours and in planting the flag – supported by violence – an act of state, they violated the laws of the first peoples’. In Goenpul scholar Aileen Moreton-Robinson’s (2015: xxi) words, Australia is ‘built on the disavowal of Indigenous sovereignty because the nation is socially and culturally constructed as a white possession’.

The assertion of colonial sovereignty is not ‘temporally contained in the arrival of the settler but is reasserted each day of occupation’ (Tuck and Yang, 2012: 5). Maintaining settler-colonial systems requires an ‘excessive desire to invest in reproducing and reaffirming the nation-state's ownership, control, and domination’ over Indigenous land and people (Moreton-Robinson, 2015: xii our emphasis). Chief among the investments of settler colonialism is the violence of the carceral system (Strakosch and Macoun, 2020). The ‘colonial carceral landscape’ constructed in the initial stages of colonisation continues to structure Indigenous oppression in Australia (Baldry et al., 2015: 184). Australian state and territory governments imprison Indigenous people at rates rarely seen elsewhere in the world. In 2021, 23 in every 1000 Aboriginal and Torres Strait Islander people were incarcerated (Productivity Commission, 2022: Table 8A.5), four times the imprisonment rate in the United States and higher even than incarceration rates for Black Americans during their 2000s peak (Carson, 2020: 9). In the state of NSW, where our case study is located, the prison population expanded by about 40% between 2012 and 2018, despite an overall decline in violent and property-related offences over the same period (Auditor General, 2019; NSW Bureau of Crime Statistics and Research, 2018: 11). The NSW government has embarked on an AU$3.8 billion investment in new prison capacity while privatising prison operation (Andrew and Cahill, 2017).

Extreme levels of Indigenous incarceration in Australia reflect the centrality of police and prisons to Australia's colonial project (Blagg and Anthony, 2019: 15). The criminalisation of Indigenous people by carceral systems of ‘criminal justice’, from the police, to the courts, to prisons, both builds on and propagates colonial conceptions of Aboriginality (Blagg, 2008). Prison has been both a colonial tool for managing Indigenous resistance, and a target of that resistance, such as in prominent campaigns against Aboriginal deaths in custody that lead to, and have continued since, the 1987–1991 Royal Commission on the issue. Because prisons sit at the heart of settler-colonial violence, struggles against carceral systems go beyond immediate goals about the reform or abolition of prisons, courts and police, and include broader goals of self-determination and claims for sovereignty (Baldry et al., 2015).

Indigenous notions of sovereignty are distinct from colonial notions of sovereignty based on state power and international law (Watson, 2002). Different ideas and models of Indigenous sovereignty have been asserted by Aboriginal and Torres Strait Islander individuals, communities and organisations (Behrendt, 2003; Falk and Martin, 2007). Synthesising Indigenous perspectives on sovereignty, Indigenous legal scholar Larissa Behrendt (2003: 102–103) argues that the concept attempts to recognise that Aboriginal and Torres Strait Islander people maintain unceded rights as sovereign Indigenous peoples, distinct from the Australian state, which they have been excluded from and did not consent to. Behrendt (2003: 115) links the recognition of sovereignty with the related concept of self-determination as something that is exercised: ‘what emerges is the idea of a recognition of sovereignty as an expression of distinct identity and a starting point for the exercise of self-determination as a way of achieving empowerment, autonomy and equality’.

In Australia, recognition of Indigenous sovereignty, and expressions of self-determination, reflect a specific history of colonisation. Unlike other British settler colonies, Australia has no formal treaty framework, or constitutional recognition of Indigenous custodianship of land before and after colonisation. Struggles for land rights have led to limited legislative and legal recognition of land rights, primarily through either ‘native title’ or ‘freehold’ land rights regimes. Native title was developed in response to a High Court case overturning the legal fiction of terra nullius. It has been accessed by some Indigenous Communities mostly in remote areas where they can prove continuous connections to their traditional lands. Freehold rights were won under legislation through movement activism, providing for wider claim-making by Aboriginal Land Councils, whose membership includes Indigenous people living in or connected to the Council's area, as ‘compensation’ for the loss of land elsewhere (NSW Aboriginal Land Council, 2014). However, both Indigenous land rights regimes are limited because they only grant rights to land that is not already, or in some cases could be in the future, used for agricultural, mining and urban development. This requirement clashes with the realities of colonial dispossession to exclude the large majority of Indigenous Australians from existing land rights regimes (Altman and Markham, 2015). Eighty-two percent of Aboriginal and Torres Strait Islander people live in major cities and regional towns (Australian Institute of Health and Welfare, 2021).

In Australia's settler-colonial context, where Indigenous people have distinct identities but mostly do not live in geographically distinct places from non-Indigenous people, Indigenous Communities have asserted sovereignty and self-determination through claims for ‘greater control over the decision-making processes that control their lives’ and ‘autonomy from the state through decentralised forms of government and institutions’ (Behrendt, 2003: 110). This has principally manifested in demands to devolve decision-making power and resources to Aboriginal-controlled organisations and governance structures. Justice reinvestment is one of many examples of community and place-based efforts to enable the exercise of self-determination in this manner across various policy domains. Examples include Aboriginal Community-controlled health services, Indigenous schools and educational institutions, joint management over national parks by Indigenous rangers, and ‘night patrol’ alternative Community policing models (Blagg and Anthony, 2019; Falk and Martin, 2007). Justice reinvestment builds on these approaches but represents a novel strategy of demanding the ‘reinvestment’ of resources from the colonial-carceral state.

Justice reinvestment in Australia, Just Reinvest NSW, and Maranguka

Tom Calma, the then Aboriginal and Torres Strait Islander Commissioner, introduced justice reinvestment to Australia's policy landscape in 2009 (Brown et al., 2016: 2–3). It has since become a key recommendation of many government and non-government inquiries and reports, including the Australian Law Reform Commission. Justice reinvestment has received support from the National Congress of Australia’s First Peoples (2016: 11) which called for ‘the development of community controlled justice reinvestment initiatives that can allow Aboriginal and Torres Strait Islander led solutions’.

An emerging policy and criminology literature explores efforts at justice reinvestment in Australia (see Austin and Coventry, 2014; Brown et al., 2016; and Willis and Kapira, 2018). Justice reinvestment has been associated with a number of initiatives linked to addressing Indigenous incarceration in various Australian states (Justice Reinvestment Network Australia, 2018). The work of JRNSW, and Maranguka, is the most advanced of these. Brown et al. (2016: 134) contrast JRNSW and Maranguka with the top-down approach of the United States, stating ‘by contrast, we see the Just Reinvest NSW project in Bourke as a good example of a “bottom-up” approach, where priorities and processes are identified at the local level through community meetings and community-based organisations’.

JRNSW began in 2011 as a strategic initiative of the Aboriginal Legal Service (ALS) NSW/ACT. JRNSW frames its work in terms of the exercise of self-determination, stating that ‘Aboriginal self-determination is central to justice reinvestment. Communities drive the change they want to see, taking pathways away from the criminal justice system for their children and young people’ (Just Reinvest NSW, 2019: 9). This follows in the tradition of Aboriginal legal services, which were key among a host of institutions that Indigenous Communities created in the 1970s to develop autonomous, community-run services (Norman, 2015). While initially the ALS model was entirely run by volunteers, it was soon integrated into a public funding model for representing Indigenous people through the legal system. In 2022, JRNSW became an independent non-profit organisation from the ALS, managed by its own Indigenous-majority Executive Committee. It is operated by a small team of less than ten staff and led by an Indigenous CEO.

The first justice reinvestment initiative JRNSW supported was Maranguka, a response to high crime and incarceration rates in Bourke developed by the local Indigenous Community. Bourke is a small regional town, 800 km from Sydney, located on the Darling River in north-west NSW. Indigenous people make up around 30% of the 2500 people in Bourke, compared to 3% nationally and in NSW. The present-day Indigenous population of Bourke reflects many of the wider historical patterns of colonisation and dispossession across NSW – the first frontier of the British invasion. The Ngemba, Murrawarri, Budgiti and Barkinji Tribal Groups are the Traditional Owners of the land in and around the Bourke township (Just Reinvest NSW, 2020b). Throughout the nineteenth and 20th centuries, ‘protectionist’ and ‘assimilationist’ policies resulted in the forcible removal of people from these Tribal Groups to church-run ‘missions’ and government ‘reserves’ across NSW and Australia, causing major damage to Indigenous culture and displacement from Country. Indigenous people from Tribal Groups in other parts of NSW and Australia were also forcibly located to reserves established in Bourke (Corrigan et al., 2019). Partly as a result of these policies, there are now 24 different Tribal Groups who reside in Bourke (Just Reinvest NSW, 2020b). This history of displacement and ongoing systemic injustice is reflected in the high levels of socio-economic exclusion in areas such as employment, education, health and housing faced by Indigenous people in Bourke (NSW Government, 2016). Like in other parts of Australia, Indigenous people in the area are massively overrepresented in the criminal justice system. In 2017–2018, all people incarcerated from Bourke were Indigenous (Just Reinvest NSW, 2018a).

Maranguka seeks to counter these ‘deficits’ by harnessing what are identified as ‘strengths’ in Community level governance. ‘Maranguka’ is a word developed from the local Ngemba language meaning ‘caring for others’ and refers to the whole-of-Community justice reinvestment agenda developed by Bourke's Indigenous leaders and Community members (Riboldi and Hopkins, 2019). Maranguka is managed locally, in partnership with JRNSW, and is governed by the Bourke Tribal Council. The Tribal Council is made up of each of the Tribal Groups in Bourke and operates as the governance body that sets and reviews the priorities and outcomes of justice reinvestment. The partnership with JRNSW was initiated by Bourke Indigenous leaders who approached JRNSW in 2013 seeking to progress their priorities and goals through the justice reinvestment model.

Maranguka operates a ‘hub’ model with a small ‘backbone team’ of around five local staff. The hub coordinates Maranguka justice reinvestment initiatives and activities that aim to prevent Indigenous Community members from entering or re-entering the criminal justice system. These include programmes that partner with local agencies and organisations as well as Aboriginal-controlled and run legal, cultural, family and health services. A collaborative agreement with local agencies and organisations seeks to align and integrate services with Community-defined priorities, supported by daily check-ins between Maranguka and frontline service providers. Key collaborative initiatives of Maranguka have included: a new set of bail protocols negotiated with local police and courts to reduce breaches; the Birrang driver's licence programme to reduce driving offenses; the Gawimarra Burrany Ngurung (Picking up the Pieces) initiative where teams including mental health nurses provide ‘wrap-around’ support in cases of family violence; and early childhood health and development check-ups (Ferguson and Lovric, 2019; Riboldi and Hopkins, 2019).

Maranguka is a model of justice reinvestment that places Indigenous self-governance at the centre of its effort to redirect resources from prisons and the criminal justice system to the Aboriginal Community in Bourke. Like JRNSW, principles of Indigenous self-determination inform the overarching goals of Maranguka, including recognising Aboriginal leadership across Bourke, and Aboriginal control over resources, policy and culture, (Maranguka Community Hub, 2020). Founder and Executive Director Alistair Ferguson, a Ngemba man and Indigenous leader in Bourke, describes Maranguka as:

Redefining self-determination. What is unique now is sitting at the table - be it with the philanthropic sector, the corporate sector or government - the community is sitting in the driver's seat. It's the first time in history that I’m aware of that Bourke is actually in the driver's seat and making those decisions. (Just Reinvest NSW, 2019: 28)

To date, there has been no direct budget reallocation from prison budgets to communities. Maranguka was initially primarily funded through philanthropy, before receiving AU$3.44 million in grant funding from the state and federal governments for 2019–2024 (Riboldi, 2021). Thus, ‘reinvestment’ currently remains notional, indirectly flowing from the extent to which Maranguka attracts state funding and reduces prison numbers.

However, given the small size of Bourke, the broader aim of Maranguka and JRNSW is to demonstrate the viability of a wider scale shift in resources from the criminal justice system into Indigenous Community control, which could be realised through a dedicated justice reinvestment mechanism. JRNSW presents Maranguka as a successful trial in support of the potential for further implementation of justice reinvestment across the state to counter ongoing prison expansion. JRNSW is currently also supporting communities to explore justice reinvestment in two other areas with significant Indigenous populations – the regional town of Moree and Mount Druitt in Sydney's outer suburbs. Nationally, justice reinvestment is now a policy commitment of the new Labor Government and Aboriginal Minister for Indigenous Affairs, Linda Burney, the first Aboriginal woman to hold the position (Allam and Wahlquist, 2021).

Researching ‘reinvestment’

Our research on justice reinvestment emerged from an invitation in 2019 to work with JRNSW to assist their efforts to establish an ongoing ‘reinvestment’ funding model to support the implementation of justice reinvestment in NSW. Our collaboration with JRNSW has therefore focussed on questions of financing, rather than issues of law reform or community governance. Reinvestment questions – how to transfer resources from prisons to communities, and how to place those resources under Aboriginal Community control – have been identified by Communities as one of the key sources of frustration, and aspiration, with justice reinvestment. The potential for reinvestment is crucial for the exercise of self-determination through justice reinvestment because it concerns resourcing and governance. These claims to resources have, however, faced strong constraints from the colonial-carceral state.

As non-Indigenous researchers, we view our role as acting in solidarity with the goals and priorities set by the Indigenous governance structures of both JRNSW and Maranguka. We recognise Tuck and Yang's (2012: 35) call that, ‘decolonization is not accountable to settlers, or settler futurity. Decolonization is accountable to Indigenous sovereignty and futurity’. Our paper explores how the financial models and strategies being employed by JRNSW and Maranguka operate within the dominant marketised policy landscape, and specifically marketised forms of social investment. We point to the potential returns, as well as risks, of JRNSW and Maranguka's strategy of engaging with (rather than rejecting) the tools of marketisation in pursuing justice reinvestment as a model for exercising self-determination. We draw on our experiences working with JRNSW, including extensive discussions with JRNSW staff and executive committee members, and involvement in JRNSW-hosted workshops and meetings with Indigenous Community members and policy makers, as well as evidence generated from Maranguka, to identify points of complementarity and tension. Our practical aim is to bring a political economic lens to help inform Indigenous Communities and policymakers considering justice reinvestment, while also making a scholarly contribution to debates about possibilities for contesting marketisation. We begin this analysis by considering how rising demands to move resources away from prisons are being articulated within the prevailing neoliberal policy paradigm through the notion of ‘social investment’.

Prisons, neoliberalism, and social investment

Carceral big government and neoliberalism

Rising prison spending demonstrates how the state has been restructured rather than retrenched under neoliberalism. In her study of prison expansion in California since the 1980s, Ruth Wilson Gilmore (2007) argues that state institutions that were delegitimised by the crisis of Keynesianism and constrained by fiscal austerity in social spending were instead able to mobilise their own surplus capacity as a penal state. Similarly, Wacquant (2009: 64) argues that the prison system is the laboratory of ‘carceral big government’ where the social and penal wings of the state have come together for a programme of prison expansion. While ‘workfare’ operated to limit entry into traditional social welfare systems, ‘prisonfare’ moved in the opposite direction by expanding entry into prisons. In Australia, the most brutal advances in workfare and conditionality have been pioneered as ‘experiments’ on Indigenous Communities (Altman and Hinkson, 2007; Klein, 2020; Lovell, 2016; Strakosch, 2015).

As Peck (2003: 230) argues, ‘the social/penal frontier is an active zone of neoliberal statebuilding’. This frontier is shifting as the contradiction between expanding prison budgets and fiscal austerity has become more pronounced. Neoliberalism in practice has never lived up to its ‘small state’ rhetoric. However, the neoliberal critique of state spending has made prisons an unlikely candidate for another frontier of neoliberalism, as market tools and logics are deployed in an attempt to reduce prison spending.

Social investment and the financialisation of social reproduction

Attempts to rein in the expansion of prisons by targeting the fiscal costs of mass incarceration reflect the emergence of ‘social investment’ logic in the welfare state. ‘Social investment’ recreates a legitimate role for the state in managing social risk, but within an economised rationality and in forms potentially accessible to private finance. Social investment replaces an earlier justification of the welfare state on the grounds of social rights with one based on maximising gain. Rather than a form of redistribution, social spending is imagined as an investment in future capacities and productivity. In Northern Europe, this potentially constitutes a new paradigm that expands the fiscal base for social provision by investing in education and skills and in managing labour markets and life course transitions (Deeming and Smyth, 2015; Hemerijck, 2015). In the more limited liberal welfare states, including Australia, a ‘light’ version developed linked to Third Way responses to the electoral limits of neoliberal retrenchment (Baker et al., 2020: 541).

Light versions of social investment are key arenas for the marketisation of social reproduction. Spending on social reproduction is increasingly central to global finance, as mortgage repayments, utility contracts and insurance premiums are collateralised (Adkins, 2019). This financialisation of everyday life, however, does not only involve the expansion of finance as an industry. As the social investment state shows, financial modes of calculation have been extended beyond the usual realms of finance, and particularly into the social policy (Bryan and Rafferty, 2014). In many instances, the state applies this financialised ‘derivative logic’ to reimagine social reproduction in terms of calculable risk, opening up room for markets in social investment (Lilley et al., 2020; Martin, 2015).

Justice reinvestment engages with social investment logic. Tucker and Cadora (2003) justified their original formulation of justice reinvestment in the United States using the language of social investment. They described prisons as ‘unproductive spending’ that created ‘million dollar blocks’ in disadvantaged, racialised neighbourhoods with high incarceration rates (Tucker and Cadora, 2003: 1–3). State responses to such claims have tended to fall within the ‘light’, Third Way, form of social investment (Baker et al., 2020: 541–542). Rather than expanding fiscal resources, and with this democratic community control, these schemes have primarily sought to reduce prison spending as a fiscal liability. In the United States, the ‘avoided costs’ of initiatives such as the JRI have been constructed as notional budgetary savings to justify legislative reform. In the United Kingdom, they have become the basis for creating innovative financial instruments for the marketisation of social reproduction.

The United Kingdom has developed ‘payment by results’ and SIB instruments as marketised responses to claims for prison resources to be used in more effective ways (Brown et al., 2016; Fox et al., 2013). The Ministry of Justice piloted justice reinvestment at six sites in Manchester and London from 2011 to 2013. Its ‘payment by results’ method linked funding for pilots to metrics of ‘cashable savings’ from reductions in prison demand. This led to relatively narrow programmes targeted towards individuals at risk of reoffending, suggesting the payment by results model of justice reinvestment, ‘as implemented by the UK government, is narrowly focused on privatization and marketization of criminal justice’ (Wong et al., 2014: 93).

Similarly, the issue of prison recidivism was also the catalyst for the world's first SIB launched in Peterborough, the United Kingdom in 2010. While the term ‘justice reinvestment’ was not explicitly used in this SIB, it represented a social investment policy solution to the growing cost of incarceration. The Peterborough SIB was developed as an ‘innovative’ method of financing programmes to reduce recidivism by prisoners on probation that was oriented towards attracting private finance. The SIB aimed to attract private investors, who would provide up-front capital and then be repaid, with a return, if measured outcomes for recidivism met certain benchmarks. The social investment logic was that these outcomes would represent cost savings for governments from decarceration (Harvie and Ogman, 2019: 983–984).

We explore SIBs in more detail below as the archetype of a shift in emphasis from the ‘social investment state’ to the ‘social investment market’ (Harvie, 2019; Langley, 2020; Rosenman, 2019). Joy and Shields (2013: 190) argue the ‘study of SIBs helps us to understand more deeply how neoliberalism can work as a political project to remake social policy’. Indeed, SIBs are directly relevant to the context in which JRNSW and Maranguka are operating. The NSW state government was the first jurisdiction outside of the United Kingdom to begin to develop an SIB. The first two SIBs it launched in 2013 were focussed on foster care – an issue that has been a significant area of resistance led by Indigenous women campaigning against extreme rates of child removal from Indigenous families that mirror the impacts of the prison system (Foschia, 2014). The NSW government then established the Office of Social Impact Investment in 2015 with the explicit purpose of growing the social investment market, and a total of seven SIBs had been launched by 2019 (Broom, 2021). JRNSW strategies for advancing ‘reinvestment’ are operating in this marketised policy context, and SIBs have been specifically suggested to JRNSW as a possible financing mechanism by social investment policy advocates.

Social impact bonds: Three tools of marketisation

In this section, we use existing critical analyses of SIBs to identify tools used to marketise social reproduction that will inform our analysis of justice reinvestment strategies. Literature on the geographies of marketisation demonstrates that the extension of market mechanisms and rationalities does not involve a simple advance of the market at the expense of the state. Nor does marketisation lead to geographical convergence towards a singular market model (Berndt et al., 2020; Cohen, 2018). The uneven and contested advance of marketisation produces hybridity, often by combining forms of market exchange and state distribution that blur boundaries between ‘public’ and ‘private’ (August et al., 2022; Bryant and Spies-Butcher, 2020). As Brenner et al. (2010: 189) explain, ‘market disciplinary regulatory projects often combine, parasitically, with ostensibly alien institutions and policy regimes to create “hybrid” institutional landscapes in which commodifying and market-constraining logics commingle and co-evolve’. The reworking of states and markets into new hybrid configurations creates a variegated landscape of marketisation, opening social reproduction to profitable investment, but also creating new sites of contestation.

SIBs are hybrid policy mechanisms that combine forms of state regulation and market contract, or what Berndt and Wirth (2018: 27) term the ‘ambivalent interplay of interrelated economic and political logics’. The bonds are contracts between states, non-government providers and private financers; private investors or philanthropists finance non-government service delivery and are repaid by the state, at a premium, if contracted social outcomes are achieved. Lilley et al. (2020) argue that SIBs are closer to a financial derivative than a conventional fixed-income bond, because financial returns and risks are contingent on the underlying ‘impact’ being measured.

We identify three tools of hybrid marketisation, which are brought together by SIBs through a ‘derivative logic’: liability budgeting, pricing outcomes, and contracting out. Each reflects an important change in the governance of social policy, linked to neoliberal critiques of the state, that are reflected, but reworked, in justice reinvestment. First, states have changed the way they understand and account for their finances. Where states once constructed budgets in primarily cash terms to facilitate macroeconomic management and understood social spending as redistribution in the present, states increasingly construct budgets using private sector accounting tools to manage future liabilities (Christensen et al., 2019). SIBs implement tools of liability budgeting by connecting interventions carried out by service providers to fiscally expensive social problems. Responding to pressures for fiscal austerity, the initial investment comes from private sources, and states account for repayments as avoided future costs, rather than current outlays.

Second, states have changed how policy is evaluated. Increasingly, ‘evidence-based’ policy involves constructing quantitative metrics of outcomes, which facilitate analysis of cost-effectiveness, and the pricing and trading of ‘the social’ (Berndt and Boeckler, 2017). Payments to social impact investors are based on pre-determined and measurable results, which are promoted on the basis that they enable creative interventions, beyond those ordinarily conducted by bureaucratic states, to be tested, evaluated and ultimately priced (Berndt and Wirth, 2018). Third, rather than administering provision via central bureaucracies, states increasingly use contracts to devolve administration to local non-state actors (Brenner and Theodore, 2002). By contracting out the delivery of these outcomes to local non-government organisations, SIBs facilitate a marketised form of devolution and place-based intervention (Berndt and Wirth, 2018).

While heralded by advocates as mobilising the power of markets and entrepreneurship to social ends, this promise has often not been realised in practice. Many of the shortcomings of SIBs were evident in the Peterborough prisoner recidivism SIB in the United Kingdom. Rather than delivering additional sources of public investment, SIBs have tended to be structured in ways that socialise risks within the state, while privatising benefits to make the asset class attractive for investors (Berndt and Wirth, 2018: 31; Harvie et al., 2021). In the case of the Peterborough SIB, investors were paid out when performance metrics were reached, despite delivering no cashable savings from prisons for the state (Harvie and Ogman, 2019). The pricing of certain outcomes in SIBs narrows the scope of policy action in favour of an incremental change from a baseline, which ignores structural conditions and creates perverse incentives to game contracts (Lilley et al., 2020). The Peterborough SIB did not address social issues like poverty and instead deployed already established programmes on individual resilience (Harvie and Ogman, 2019). Perhaps ironically, the complexity of SIB contracts also favours larger providers over local organisations and their autonomy has been eroded by the discipline imposed by financial markets (Harvie et al., 2021; Lilley et al., 2020).

Justice reinvestment and Indigenous self-determination: Examining tensions and possibilities

In the remainder of this article, we explore how justice reinvestment, as developed by JRNSW and Maranguka, is asserting ‘reinvestment’ and examine how these strategies contest the three tools of marketisation we have identified in relation to accounting, outcomes and place. For each tool, we explain how it has been mobilised as part of neoliberal restructuring, making connections to its operationalisation in SIBs. We then explore how the strategies of JRNSW and Maranguka reconfigure these tools against the commodifying aspects of marketisation, and towards collective governance, grounded in Indigenous demands for self-determination. We show that where liability budgeting was initially applied to limit future state spending, justice reinvestment applies similar techniques to allow Communities to lay claim to future public resources. Where evidenced-based policy is often used to centre unelected experts, justice reinvestment asserts ‘data sovereignty’ over the information produced from and about the Community. And where contracts are used to facilitate marketisation and profit making from social reproduction, justice reinvestment advocates for contracts as a form of agreement making between the colonial state and Indigenous Nations.

These are not simply technical moves, but reflect a deliberate strategy. The analytic framework we employ, identifying three tools of marketisation, reflects the language of ‘marketisation’ (and relatedly, ‘financialisation’) developed in the critical literature and within dominant policy frameworks, rather than the language typically used by Community. But, as we outline, justice reinvestment in Australia explicitly contests these elements of marketisation, strategies we connect to broader debates over the marketisation of social reproduction. JRNSW highlight SIBs as a ‘new funding model’ that represents a potential source of finance for justice reinvestment, alongside public, philanthropic, and in-kind options. However, SIBs are criticised on the basis that ‘investors get the financial benefits of some of these models and schemes, rather than the savings being reinvested into the community’ (Just Reinvest NSW, 2019: 61). This mirrors the critique of SIBs in the literature we have canvassed, and reflects a strategy to not only engage, but also contest, marketised policy models, in order to exercise self-determination.

A political economy lens on the market tools engaged and contested by justice reinvestment reveals more open-ended political possibilities to subvert those tools for alternative purposes than is often acknowledged in the marketisation literature. However, it also reveals tensions within justice reinvestment that lie at the intersection of marketisation and settler-colonialism. Strategies around resourcing, data and governance may clash with current limits of state recognition of Indigenous sovereignty. There are also potential risks of translation between the colonial language, tools and logics of ‘the market’ and Indigenous systems, customs and traditions. Both tensions reflect the still ongoing nature of Maranguka's and JRNSW's work, and the challenges involved in ensuring that ‘justice reinvestment’ meaningfully supports Community goals and priorities. Acknowledging this complexity, our analysis of JRNSW and Maranguka suggests that justice reinvestment is well suited to the complex and blurred boundaries of Indigenous governance where the ‘state’ remains a problematic alternative to the ‘market’.

Contesting accounting

Advocates of justice reinvestment frame their model through the logic of social investment. Reflecting budgetary trends that have driven SIBs, JRNSW's advocacy uses the logic of liability budgeting to highlight rapidly growing prison spending, and centres on the economic and fiscal benefits of alternative ‘investments’ (Just Reinvest NSW, 2018b: 6). This strategy engages with the neoliberal accounting technologies that emerged to impose limits on state spending (Christensen et al., 2019). These accounting techniques formed the basis of ‘fiscal liability calculation’ which reimagines the welfare state as an ever-increasing set of liabilities (Baker et al., 2020; Baker and Cooper, 2018). These budgetary exercises, such as ‘generational accounting’, tend to justify austerity because they project ever-increasing demographic costs but fix future tax revenues as a proportion of GDP (Spies-Butcher and Stebbing, 2019). They also open up space for marketised responses such as SIBs that intervene to reduce such costs at the individual level.

Justice reinvestment engages the tools of liability budgeting but complicates their relationship to neoliberalism and marketisation by applying fiscal limits to the carceral state. The aim is to halt the expanded reproduction of the prison industrial complex whereby ‘larger prison populations le[a]d not to safer communities, but, rather, to even larger prison populations’ (Davis, 2003: 13). In the Australian context, this fiscal cycle echoes Moreton-Robinson’s (2015) insight on the state's need for continual investments in the infrastructure of settler-colonialism.

Justice reinvestment attempts to apply limits to the carceral state through three important changes to liability budgeting logics used by SIBs and other market-based tools. First, unlike many other forms of fiscal liability budgeting, justice reinvestment does not construct social needs and rights, such as health care, as a cost to be minimised. The fiscal target is instead prison spending that has deleterious consequences for needs and rights. Second, justice reinvestment seeks to facilitate an expansion of social spending through investments that act to apply fiscal limits on future prison spending, rather than limiting taxation. Third, whereas liability budgeting often constructs individuals as sites of (private) investment to mitigate individualised risks (literally so when done via SIBs), justice reinvestment repositions budgetary tools to create a collective Community claim over fiscal resources. Justice reinvestment constructs both potential risks and savings, and the mechanism for claiming savings, in collective terms. It is the Indigenous Community that controls how services are provided, funded by future fiscal ‘savings’, and the Community that seeks to gain ongoing control of fiscal resources through ‘reinvestment’.

Achieving state recognition of the savings generated by Maranguka as a basis for ‘reinvestment’ has created opportunities and challenges. Maranguka adopts marketised language by framing four different kinds of collective activities as ‘investment domains’, focussed on building governance structures, coordinating government services, providing Community-run programmes and reforming justice agencies and authorities. JRNSW enlisted accounting firm KPMG to account for the fiscal ‘impact’ of Maranguka's investments across these areas. The enlisting of KPMG attempted to utilise the legitimacy of a major firm that is closely associated with market ‘reform’ in the public sector. KPMG calculated the fiscal savings delivered by Maranguka on things like incidences of domestic violence, bail breaches, and school retention. KPMG found that Maranguka generated returns of AU$3.1 million in 2016–2017, five times the cost of operating Maranguka over this time. Two-thirds of this was fiscal savings for criminal justice spending, and one third was non-criminal justice-related fiscal savings (KPMG, 2018: 24).

There remain tensions in using the savings calculated as the basis of a wider reinvestment mechanism. Some of these tensions are technical issues of embedding justice reinvestment in existing state accounting practices. For example, accounting for avoided costs opens questions about the appropriate counter-factual for prison spending, and how to reconcile capital investments in prisons with recurrent spending on community services, especially when it occurs between different state authorities or ministerial portfolios. These issues speak to the spatial and temporal disjunctures between when and where investment occurs, and when and where savings are realised. However, the issues are not only technical: fiscal accounting is a site of contestation over whether state resources continue to be invested, and reinvested, in reproducing settler colonialism. In seeking to change government budgeting processes, justice reinvestment is seeking to repurpose the fiscal powers of the carceral-colonial state. Contestation over fiscal accounting is also closely linked to contestation over how policy ‘outcomes’ are understood and measured, and who decides.

Contesting outcomes

Justice reinvestment is a self-described ‘data-driven’ approach, which links ‘evidence-based policy’ making with ‘outcome-based contracting’ (Baker et al., 2020). The premise of evidence-based policy is that policy interventions are not evaluated through abstract economic theory, but by establishing causal connections between interventions and outcomes through experimentation (Webber and Prouse, 2018). However, critics argue this limits the scope of policy by oversimplifying reality, prioritising the ‘“doable and testable” over the “plausible and meaningful”’ (Sullivan, 2011: 508). The economic thinking and methods relating to behaviouralism and experimentation that underpin this policy trend often lead to a focus on problems of ‘individual behavioural failure’ (Berndt and Boeckler, 2017: 286). This framing is evident in neoliberal experiments in Indigenous social policy, such as income management for individual welfare recipients (Klein, 2020; Lovell, 2016; Strakosch, 2015).

Focusing on ‘what works’ in producing outcomes creates space for market-based policy as a means of allocating scarce resources to achieve outcomes efficiently, allowing states to govern ‘at a distance’ (Berndt and Boeckler, 2017). The view that outcomes can not only be measured, but also priced and traded, creates space for private finance. SIBs, for example, seek to convert measured social outcomes into real investment signals. Thus, in social investment markets, measuring outcomes is not only about finding ‘what works’, but searching for returns on investment.

Justice reinvestment strategically engages with the terrain of evidence-based policy in ways that reflect Webber and Prouse’s (2018: 180) argument that ‘what works remains ambivalent’ and can provide support for unlikely policy models. Justice reinvestment is informed by well-established evidence that increases in imprisonment are not due to increases in crime, but rather the interaction between ‘law and order’ and social policies that criminalise and oppress Indigenous people (Behrendt et al., 2016; Cadora, 2014). Maranguka seeks to demonstrate this in practice, while contesting established methods of creating data and evidence to assert Indigenous self-governance through ‘data sovereignty’.

Justice reinvestment is underpinned by Indigenous data sovereignty principles. Indigenous data sovereignty is concerned with ‘the proper locus of authority over the management of data about indigenous peoples, their territories and ways of life’ and locates this in Indigenous peoples’ ‘inherent rights to self-determination as sovereign entities predating European settlers’ (Kukutai and Taylor, 2016: 14). Maranguka has developed Indigenous data sovereignty protocols that sit with the Bourke Tribal Council to authorise data collection, management and use with community partners (Just Reinvest NSW, 2019: 47). JRNSW argues this is necessary because ‘Community perceptions, wishes and aspirations are rarely reflected in government/bureaucratic data’ (Just Reinvest NSW, 2019: 46).

Maranguka produces its own data by supplementing and interpreting ‘official’ crime and other data with Community knowledge that speaks to Community strengths and allows ‘truth telling’ about failures of government policy and service delivery. This contrasts with elite and top-down data that tends to have a ‘deficit’ approach and is collected and held outside of the Community. Maranguka established a Data Reference Group and ran ‘Community Data Conversations’ with people in Bourke to gain feedback on and ‘fill in the gaps’ of quantitative government data, including on cultural issues. The Tribal Council uses this data to inform the priorities and targets in Maranguka's ‘Growing Our Kids Up Safe, Smart and Strong’ strategy. For example, Community data was used to identify ‘circuit breakers’ that could potentially deliver immediate outcomes, such as the driver's licence programme to reduce high rates of driving-related offences (Riboldi and Hopkins, 2019).

Justice reinvestment uses Indigenous data sovereignty principles to assert Community as the appropriate unit for measuring outcomes, avoiding culturally inappropriate measures of equivalence. JRNSW is informed by a framework of ‘collective impact’ that aims to address systemic issues by setting agendas, measuring outcomes and creating accountability on a collective basis (Just Reinvest NSW, 2020a). This is an example of engaging with, while also contesting, the marketised ‘impact’ framing to reframe established Indigenous Community practice. It is put into practice in Maranguka through the ‘Shared Outcomes and Indicators Framework’ (Riboldi and Hopkins, 2019). The ‘collective’ basis of impact makes Maranguka less susceptible than other outcomes-oriented policy models to forms of marketisation involving private finance because individual programmes are entangled with the Community governance model at the heart of the overall approach.

Maranguka has sought to shift marketised tools from individual to collective measures using data that is generated and controlled by the Community. However, there remain challenges as the NSW Government is yet to fully accept Maranguka's Community-level measures as the basis for ‘fundable outcomes’. Again, there are some technical tensions involved in measurement, such as disentangling the policy outcomes of Maranguka from other factors that are operating state-wide. Due to Maranguka's place-based constitution, there can be no ‘control group’. Yet, these tensions are also shaped by systems that rationalise settler-colonialism. Colonial ideas about the inferiority of Indigenous societies were and are reflected in the denigration of Indigenous data as a basis for policy making – data systems which have nonetheless survived and continue to evolve (Pool, 2016: 58–59). Expressions of ‘data sovereignty’ are therefore seeking to rewrite the knowledge systems that structure settler-colonial governance. ‘Sovereign’ data is deeply embedded in Aboriginal worldviews and histories of ‘place’.

Contesting place

Finally, justice reinvestment is a ‘place-based’ strategy that aims to improve outcomes in localities with high rates of incarceration, and thus high levels of criminal justice expenditure, through initiatives and approaches developed by local Communities. The place-based emphasis of justice reinvestment responds to the shift towards ‘localism’ and ‘devolution’ in policy making associated with forms of neoliberal restructuring that delegitimise centralised state provision and facilitate the contracting out of services (Brenner and Theodore, 2002). Justice reinvestment engages and challenges this by defining place in terms informed by Indigenous history and culture and using contracting as a form of agreement making for self-determination.

Localism in policy making has been characterised as ‘austerity localism’ when local places are constructed as both isolated and homogenous entities, eliding structural inequalities within and between places, facilitating top-down models of place-based policy (Featherstone et al., 2012). Yet, localism is also a site of contestation. Building on the history of place-based political activism, Featherstone et al. (2012: 179) contend that ‘forms of place-based organising can shape localisms in contested and solidaristic ways.’ Rather than seeing the place as a pre-defined area, marked by existing territorial markers, the progressive potentials of localism are shaped by how the place is constructed and how it relates to other places and scales (Massey, 2004).

Contracting out reflects the notion of government as a purchaser rather than a provider of outcomes. Like other forms of contracting out, SIBs tend to finance initiatives by non-government organisations, using contracts modelled on private finance that have resulted in non-government organisations losing autonomy and political voice. However, Williams et al. (2014: 2799) argue that despite the context of austerity and the risks of co-option into neoliberal agendas, local providers can be ‘a potential site of resistance rather than of acquiescence’. Non-government organisations can negotiate and rework neoliberal techniques and logics in collective and democratic directions, to gain degrees of autonomy from the state and market (Baker and McGuirk, 2021; Williams et al., 2014).

The formation of the Bourke Tribal Council, which established and oversees Maranguka, is an example of relational place-making that seeks the recognition of Indigenous sovereignty to facilitate the exercise of self-determination. The Bourke Tribal Council was created as part of the development of Maranguka and is comprised of Elders from the different Indigenous language groups in Bourke. Thus, Maranguka did not simply take the town of Bourke as a predefined community, but actively defined a Community that was spatially sensitive to the colonial history of the place. The Bourke Tribal Council grounds Maranguka as an expression of sovereignty by Community members. Alistair Ferguson, Executive Director of Maranguka, describes this process as a ‘Treaty’ (Just Reinvest NSW, 2019: 33). This reflects a strategy of recognising sovereignty by making agreements – contracts – with the state and other colonial institutions, which has been attempted in other domains, such as over resources (Langton and Palmer, 2003; O’Faircheallaigh, 2008).

The place-based governance of Maranguka, centred on the Tribal Council, provides a novel model for navigating the complexities of post-colonial Indigenous governance. Australian settler-colonialism creates tensions for place-based models of Indigenous governance because the forced removals of First Nations people means that sovereignty combines claims over land by people who are either ‘from’ or ‘in’ the place they live. Brown et al. (2016: 131) argue ‘geographic localism’ in justice reinvestment can align with Indigenous conceptions of Nationhood where Indigenous Communities are in distinct places with degrees of territorial autonomy, in the case of remote Indigenous Communities, or as Indigenous Communities in majority non-Indigenous towns and cities, where most Aboriginal and Torres Strait Islander people in Australia live (see also Behrendt, 2003: 110–111). The absence of a formal Treaty, limited land rights, and a predominately urban Indigenous population makes the place-based contract-making approach of justice reinvestment a potentially effective strategy for exercising self-determination by expanding Aboriginal governance and control.

However, Maranguka has not yet fully realised its goals of gaining ongoing jurisdiction over the management of reinvested funds. To date, it has succeeded in accessing philanthropic finance and time-limited government funding rather than negotiating ongoing contracts with the state that provide an ongoing legal claim over resources. Developing a reinvestment mechanism that could deliver the latter ultimately requires some devolution of fiscal sovereignty from the colonial-carceral state to Indigenous Communities.

Conclusion

Indigenous Communities exploring justice reinvestment in Australia define it as a strategy for exercising self-determination. In this article, we have explored how these initiatives strategically engage with the increasingly marketised organisation of social reproduction and ideas of social investment. Using the example of SIBs as the archetypical instrument of social investment markets, we have identified three tools of marketisation: liability budgeting, pricing of ‘evidenced-based’ outcomes, and contracted devolution to non-government providers. The identification of these tools reinforces criticisms of the ‘light’ social investment model as an extension, rather than successor, to neoliberal governance. Even so, SIBs demonstrate that the state advances alongside the marketisation of social reproduction, highlighting tensions and opportunities for contestation.

Justice reinvestment, as it has been developed by JRNSW and Maranguka in Australia, offers a potentially significant example of contestation over marketisation. Initiated by members of the Indigenous Community in Bourke, Maranguka represents a ‘bottom-up’ model of justice reinvestment, which has been supported by JRNSW. We have analysed how justice reinvestment reworks the tools of marketisation to claim fiscal resources, develop bureaucratic capacity, and institute territorial governance. This reflects wider possibilities for reworking the tools of neoliberal governance in new ‘hybrid’ forms, combining elements of state distribution and market contract to create space for alternative forms of governance. Justice reinvestment remains constrained by the settler-colonial structures of the carceral state and marketised policy. However, it represents a model that creates new possibilities for expanding Indigenous modes of governance that seek to exercise self-determination in ways that do not align with the market or the state.