07 November 2009

Indigenous justice

Yet another 'justice framework' in Australia, with "endorsement" by the Commonwealth, state and territory Governments of the National Indigenous Law and Justice Framework.

The Framework is pitched as tackling (perhaps more accurate as a comitment to tackle) "serious Indigenous law and justice issues" and as representing "the first nationally agreed approach to Indigenous law and justice". The aim is to
reduce the overrepresentation of Aboriginal and Torres Strait Islander people in the criminal justice system by focusing on community safety and reducing rates of alcohol and substance related crime.
It was developed by the Indigenous Justice Working Group of of the Standing Committee of Attorneys-General (SCAG). The Framework is meant to form the basis of a "long term strategic approach to Indigenous law and justice issues and support work being done to 'close the gap' on Indigenous disadvantage".

Endorsement of the Framework was the centrepiece of the Indigenous Justice Roundtable at which as the Attorneys-General, Indigenous Affairs Ministers, Police Ministers and Police Commissioners
agreed to work together to improve policing, respond to alcohol abuse, strengthen the co-ordination of service delivery, and better support Indigenous victims of crime.
The Ministers agreed that
the right to live free from violence is a fundamental human right. Community safety is also a vital pre-condition to achieve COAG's targets in health, education and housing. It was agreed that if there is not action to address serious problems in this area, it will not be possible to make improvements in other areas.
That agreement was reflected in the policy version of Casablanca ("arrest the usual suspects"), with statements that included
* Building relationships of trust and respect between Indigenous communities and the police could encourage the early reporting of family violence, reduce intimidation and fear, and increase confidence in the justice system.
* Sharing information between police and other key welfare agencies was critical to providing timely and effective support for victims of crime, particularly children. Prompt, effective sharing of information helps welfare agencies intervene early before a situation escalates. It also reduces unnecessary intrusion by multiple agencies into family life.
* It is critical that victims of family violence and sexual assault have access to sustained and responsive services. The National Plan to Reduce Violence Against Women and Children emphasises the importance of a service delivery model based on the philosophy that the "first door must be the right door". This means that a victim's first point of contact with formal services, whether it is police, medical, legal, accommodation, counselling or child protection, must be able to support women and children in a compassionate and professional manner through the recovery process.
What will be the outcome? In the first instance, - strategies, lots of strategies (and presumably each with its own mini-launch). The Ministers agreed to
develop an effective approach for determining law enforcement and support services required in remote and very remote communities, and to recruiting and retaining sworn officers, especially Indigenous officers
A jaundiced observer might argue that the development is hardly radical and shouldn't, in fact, be new. There's a similar sense of 'same old, same old' with announcement that the Ministers will "develop strategies to reduce alcohol induced violence, abuse and crimes in affected Indigenous communities" (surely we haven't just realised that there's a problem, albeit one that's intractable) and will "provide leadership at all levels on the need for information sharing and integrated service delivery, particularly in relation to family violence and child abuse or neglect cases". We might hope that leadership extends beyond photo opportunities.

06 November 2009

Hyde and Squeak

Amid last-minute buffing of a paper on Dracula & the Law for next month's Translegality conference in Brisbane I was pleased to encounter Nicola Lacey's new paper 'Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility'.

Lacey's probably best known as a biographer of HLA Hart - the legal theorist who wrote, and in the last years of his life looked, as if he was one of the undead creatures of the night. Her A Life of HLA Hart: The Nightmare and the Noble Dream (Oxford: Oxford Uni Press 2004) is reviewed in the HLR here.

Her paper
puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde's appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary, and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalisation. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution and – incidentally – helps to explain what is wrong with the influential argument that, by the end of the 19th Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant's state of mind.
She comments that
Far from representing the triumph of a practice of responsibility attribution grounded in the assessment of whether the defendant's capacities were fully engaged, I argue that the terrain of mental derangement defences in late 19th Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process even - or perhaps especially - in cases dealing with defects of consciousness. And precisely because 'character' remained key to the institutional effort to distinguish criminality and innocence, the 'terror' of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly 'character-based' practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence.

Juvenile Justice

The Australian Institute of Health & Welfare (AIHW), a government social research agency, has released a 154 page report on Juvenile Justice in Australia, the fifth in the series on young people under juvenile justice supervision.

The report notes that around 6,000 young people are under juvenile justice supervision in Australia on a day by day basis. 9,540 young people experienced supervision at some time during the year.

The number of young people in detention on an average day increased by 17% over four years from 2004/05. In 2004–05, just over one-third of the average daily detention population was unsentenced but, by 2007–08, unsentenced young people in detention outnumbered those who were sentenced. The increase in the unsentenced population occurred for both Indigenous and non-Indigenous young people

Although only about 5% of young Australians are Aboriginal or Torres Strait Islanders, 40% of those under supervision on an average day were Aboriginal or Torres Strait Islanders. That over-representation was particularly prominent in detention, where over half of those in detention on an average day and 60% of those who were unsentenced in detention were Aboriginal or Torres Strait Islanders. An Indigenous young person aged 10–17 years was 16 times as likely as a non-Indigenous young person of the same age to be under supervision in 2007–08, nearly 15 times as likely to be under community-based supervision as a non-Indigenous young person, and nearly 30 times as likely to be in detention.

The report contains information on the characteristics of young people under community-based supervision and in detention as well the type and length of their supervision.

It follows From corrections to the community: a set of indicators of the health of Australia's prisoners, a recent AIHW Bulletin regarding development of a national data collection on the health of Australia's prisoners.

The Bulletin outlines the health indicators to be reported on. These indicators - "written in consultation with experts in the field" - will assist in monitoring the health of prisoners, information prisoner health service planning and delivery, and evaluating the provision of services.

05 November 2009

Technique is everything

Mark Mazower's Hitler's Empire: Nazi Rule in Occupied Europe (London: Allen Lane 2009) quotes a German observer of Romanian participation in the Shoah as complaining
The Romanians act against the Jews without any idea of a plan. No one would object to the numerous executions of Jews if the technical aspect of their preparation, as well as the manner in which they were carried out, were not wanting. The Romanians leave the executed where they fall, without burial.
Mazower had earlier quoted Curzio Malaparte, in town during the massacre of over 15,000 people in Jassy
I went to the window and looked down Lapusneanu Street. Scattered about in the street were human forms lying in awkward positions. The gutters were strewn with dead bodies, heaped one upon each other. Several hundred corpses were dumped in the centre of the curchyard. Packs of dogs wandered about sniffing the dead in the frightened cowed way dogs have when they are seeking their masters; they seemed full of respect and pity; they moved about those poor, dead bodies with delicacy, as if they feared to step on those bloody faces and those rigid hands. ...

The road was crowded with people - squads of soldiers and policemen, groups of men and women, and bands of gypsies with their hair in long ringlets were gaily and noisily chattering with each other, as they despoiled the corpses , lifting them, rolling them over, turning them on their sides to draw off their coats, their trousers and their underclothes; feet were rammed against dead bellies to help pull off the shoes; people came running to share in the loot; others made off with arms piled high with clothing. It was a gay battle, a merry occasion, a feast and a market-place all in one.

04 November 2009


The federal Attorney-General, Robert McClelland, has launched The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, a report by the National Alternative Dispute Resolution Advisory Council (NADRAC) on alternative dispute resolution (ADR) in the civil justice system. Resolve to Resolve, rather cruelly dubbed by one contact as 'promise to promise', complements the Commonwealth Access to Justice Strategy report noted recently.

NADRAC was asked last year to report on
strategies to remove barriers and provide incentives to promote the greater use of appropriate dispute resolution options as an alternative to formal litigation.
Its Resolve to Resolve report finds that ADR "remains significantly underutilised", with the key barrier being "a lack of knowledge and understanding" among the legal profession, litigants and general public.

The 39 recommendations include
* imposing a legislative obligation on prospective litigants to seek to resolve disputes before they go to court;
* developing a National ADR Protocol to promote consistent application of ADR principles and processes;
* developing a standards framework to improve the quality of ADR services;
* requiring lawyers and courts to provide appropriate information or advice to consumers regarding ADR processes;
* developing judicial case management courses focussing on ways in which judges can identify matters suitable for ADR;
* supporting development of strong community and private ADR services;
* providing a model dispute resolution clause as a template that may be voluntarily adopted in contracts;
* requiring Commonwealth agencies to include dispute resolution clauses in contracts; and
* improving data collection, evaluation and research to inform an evidence-based policy approach.
The report suggests obligations could appropriately be placed on legal practitioners and litigants, with the former for example being required to inform clients about
* the requirement to take genuine steps to resolve a dispute before commencing court/tribunal proceedings;
* private and community based services that may help dispute resolution;
* the advantages of nonadversarial dispute resolution;
* likely costs for which the client may be liable if unsuccessful; and
* the likely timeframe for any legal proceedings.
Parties could be obliged to file a statement setting out that they
* have taken genuine steps to resolve their dispute before commencing proceedings;
* have considered services outside the court that may assist them to resolve their dispute;
* understand the benefits of various ADR processes; and
* have obtained advice about estimated costs, cost exposures and timeframes for the proposed proceedings.
It notes controversy regarding whether mediation should be mandated, with the Attorney-General referring to Remuneration Planning Corp Pty Ltd v Fitton; Fitton v Costello [2001] NWSC 1208 in which Justice Hamilton considered cases in which mediation was successful despite an initial absence of consent:
It has become plain that there are circumstances in which parties insist on taking the stance that they will not go to mediation, perhaps from a fear that to show a willingness to do so may appear a sign of weakness, yet engage in successful mediation when mediation is ordered.
The report notes the need for exemptions from compulsion through consideration of
rgency, undue prejudice, safety, security, the subject matter of the dispute, public interest factors, and whether the dispute is essentially the same as has been previously before the same court or tribunal.
The report might be read in conjunction with the more cautious and nuanced Non-Adversarial Justice (Leichhardt: Federation Press 2009) by Michael King, Arie Freiberg, Becky Batagol & Ross Hyams.

03 November 2009


The Australian Institute of Criminology has released a 103 page monitoring report by Jacqueline Larsen, Jade Lindley & Judy Putt on Trafficking in persons, July 2007 to December 2008 [PDF].

The report reflects Australia's 2005 ratification of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. It notes that the Commonwealth
has supported a range of initiatives, including a package of support provision for victims of trafficking, the establishment of a specialist law enforcement response in Australia and support for regional development projects. These initiatives are supported by Commonwealth legislation which was first introduced in 1999, with the enactment of slavery and sexual servitude offences in the Criminal Code (Cth) and significantly reformed in 2005 with the insertion of trafficking in persons and debt bondage offences.
Most Australian states and territories have enacted legislation around sexual servitude and deceptive recruiting.

How many people are being trafficked? The report indicates that "as with most crimes, an exact figure ... is impossible to obtain". It notes that "available aggregate statistics from Australian Government agencies" indicate
• between 1999 and June 2008 the Department of Immigration & Citizenship (DIAC) referred 269 matters (250 people) regarding trafficking to the Australian Federal Police (AFP).
• from January 2004 to December 2008 the Transnational Sexual Exploitation and Trafficking Teams (TSETT) within the AFP undertook some 210 investigations and assessments of trafficking-related offences
• 113 victims of trafficking (over 95% of whom were women) were provided with assistance through the Office for Women's (OfW) Support for Victims of People Trafficking Program
• 34 people were charged with trafficking related offences. Seven of those defendants have been convicted: four for slavery matters, two for sexual servitude and one for deceptive recruiting.
In looking at trafficking in Australia the report comments that
Cases of trafficking in persons detected in Australia have primarily involved women from Thailand, although smaller numbers have also come from South Korea, Indonesia, China, India and the Philippines among other countries. Three male victims of traffi cking have been detected and received support through the Support for Victims of People Trafficking Program. ...

Although the exact number of persons trafficked into Australia each year is unknown, much has been learned about the circumstances by which people enter the country from victims who have been involved in investigations. Trafficking into Australia has predominantly been identified as being for the purpose of sexual exploitation, with the majority of investigations and assessments of trafficking-related offences conducted by the AFP occurring in the sex industry.

The picture that emerges is somewhat mixed, with victims coming from a range of positions (eg mothers, students), although most are from low socioeconomic areas. Some victims are aware of the nature of the work from the outset while others are deceived. Some seek work in Australia while others are approached by recruiters, friends or acquaintances. There are also some key commonalities among trafficked persons. Regardless of the method of recruitment, many decide to travel to Australia for the opportunity to earn a larger income than is possible in their country of origin. It is common for 'agents' to be involved in arranging travel and contracts must usually be completed and debts owed to the agents/traffickers repaid before the women find themselves in a position to continue working and earning money that can be sent home. ...

In 2004–05, nearly four million visitor, student or working holiday visas were granted. Of the 159 suspected cases of trafficking referred to the AFP by DIAC:
• 122 were related to persons who arrived in Australia on visitor visas
• 12 were related to persons who had been issued business visas
• 7 were related to persons who had been issued working holiday visas
• 4 were related to persons who had been issued student visas.
A report by the Australian Human Rights Commission on Immigration detention and offshore processing on Christmas Island has meanwhile argued that
legitimate concerns about people smuggling should not cause Australia to depart from its international human rights obligations to treat asylum seekers humanely and with fairness.

02 November 2009

Genuflection Bingo

Back from a law conference at the University of Sydney, where "discussants" "give utterance" to statements such as "ontological corruption defines the monster" and "transgressive" members of the audience such as myself get to play genuflection bingo (ie shout Gordon! after accumulating 100 bits of legal bling such as 'Bhabha', 'subaltern', 'Lyotard', 'hermeneutic', 'Zizek' or 'Judith Butler').

The spiffy new Law Faculty building was impressive - fins, louvres, halogen lighting, a dash of titanium cladding around a Piranesi-style void, a glass bridge flung between the towers and overlooking the Moreton Bay figs (alas, no fruitbats in sight). Black rucksacks are in, apparently ... nothing like conformity in uniforms and carry-ons to accompany the proclamation of boldness and individuality from baby academics. We genuflected, genuflected as one, to the name of St Judith Butler and the Blessed Michel Foucault. We even got to embrace a delightfully ahistorical view of popular anxieties about crime and migration. (The 'other' - ontologically corrupt or otherwise - for many of the participants seems to be the wild, scary, needing-to-be-reproved, punished or otherwise tamed entity known as the population outside the university. As Edmund Wilson said, "ooh, those awful Orcs".)

All in all it was great fun - a dfay of fieldwork in the anthropology of legal academia rewarded by hearing people invoke Zizek, Cover, Arendt, Foucault and Irigary. The highlight was the earnest (or maybe just very very deadpan) question from one of the audience in search of crime genes - he apparently envisages discrete genes for theft, fibbing, murder and arson - and a question about whether we can find the "genocide gene". Hunter S Thompson meets Lombroso and Daniel Goldhagen! After that it's just a hop, step and a jump (or is it a snip) to the Jukes: "feeblemindedness, indolence, licentiousness and dishonesty" and a spot of social prophylaxis or insurance redlining. V sad.

Having said that, the weather was fine and I met a charming ibis rootling for treats in the main quad at Sydney U. Read Vrasidas Karalis' Recollections of Mr Manoly Lascaris (Blackheath: Brandl & Schlesinger 2008) and Kenneth Abraham's The Liability Century: Insurance & Tort Law From the Progressive Era to 9/11 (Cambridge: Harvard Uni Press 2008) on the bus back before attending a Halloween cum Birthday Party, where I got to hold Yoda the WereRabbit. I don't think that Yoda was impressed by his master's Patrick Bateman costume, or maybe it was just the big axe.


The folk at the Productivity Commission (whom I sometimes envisage as weaned on a pickle) have released a report on gambling in Australia, updating a study from a decade ago and just in time for tomorrow's 'throw lots of money at horses' exercise.

Highlights are
• gambling is an enjoyable pursuit for many Australians and government policies need to balance "sizeable benefits for recreational gamblers" against the significant harm it causes some people.
• most policy interest centres on people playing regularly on "riskier" forms of gambling, particularly gaming machines.
• excluding people whose only form of regular playing is on Lotto or 'scratchies' ("essentially 'safe' forms of gambling") around 15% of Australian adults gamble regularly. Roughly one in ten of those would be classified as 'problem gamblers' with an additional 15% experiencing 'moderate risks'.
• About 5% of adults play weekly or more often on gaming machines. Around 15% of that cohort are 'problem gamblers' - their share of total spending is estimated to be around 40%. A further 15% cent of pokie players face 'moderate risks'.
• Estimates of the number of problem gamblers are around 125,000, with the estimated moderate-risk gamblers at around 290,000.
• Significant social costs associated with problem gambling "mean that even policy measures with modest efficacy will often be worthwhile". "Rough, but conservative, calculations suggest that even a 10% sustained reduction in harm could provide a gain to society of nearly half a billion dollars annually".
• Over the last decade, state/territory governments have implemented regulations and other measures intended to reduce harms: "some have been helpful ... some would have had little effect, and some have imposed unnecessary burdens on the industry". A more coherent and effective policy approach is called for, with a particular need for targeted harm minimisation policies that effectively address the high rate of problem gambling among regular gaming machine players.
• Most recreational gamblers play at low intensity, but the machines allow losses of up to $1200 an hour. The Commission recommends that the bet limit should be lowered to one dollar per button push (equating to losses of around $120 an hour), with much lower limits on how much cash can be fed into machines at any one time. Recreational players would be minimally affected.
• Shutdown periods for gaming rooms in hotels and clubs "are too brief and occur at the wrong time" - they should be extended and commence earlier.
• There should be a progressive move over the next six years to a universal precommitment system for gaming machines, using technologies that allow all consumers in all venues to set binding limits on their future play. Safe default settings would apply, but players could opt out, with periodic checking of their preference to do so.
• With effective pre-commitment, many other regulations on gaming machines could be modified, or be removed as they become redundant.
• Effective harm minimisation policy for gaming machines will inevitably erode gaming revenues. In the longer run, however, technological changes may attract a wider base of consumers, offsetting this.
• Other measures would have modest effects in reducing harms, but are also low cost. Better information in venues would help but "school-based education could have perverse effects" and should not be extended without review. Relocating ATMs away from gaming floors, and lower daily cash withdrawal limits on ATMs, would help some gamblers. Removing ATMs from venues poses costs and risks: jurisdictions should await an evaluation of Victoria's impending ban.
• Statutory provisions to enable gamblers to seek redress through the courts for egregious behaviour by venues appear necessary.
• Help services for problem gamblers have worked well overall, but they relate to people who have already developed major problems and are thus not a substitute for preventative measures, there is a need for enhanced counsellor training and better service coordination, and a need to reach the 85% of problem gamblers who do not seek help.
• Some regulations have poor outcomes for gamblers and providers alike. Liberalising the domestic supply of online gaming, accompanied by strong harm minimisation, would divert consumers from risky overseas sites. A new national approach that encouraged competition would lead to better outcomes for punters but must be accompanied by a nationally-set levy on betting suppliers to ensure adequate funding of the racing industry, whose existence underpins the wagering market.
• significant governance flaws remain in most jurisdictions — including insufficient transparency, regulatory independence and coordination. There is a particular need to reform the institutional arrangements underpinning national research.