01 July 2011

Indeterminacy and intervention

In echoes of Australian anxieties about the 'nanny state' a paper on 'The Role of Individual Substantive Rights in a Constitutional Technocracy' by Abigail Moncrieff offers what the author describes as -
a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world.

The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting, the decisions that receive substantive constitutional protection under modern doctrine, are decisions that are of unusually uncertain individual and social value. The central normative assertion is that this defining characteristic provides a good reason to hinder regulation in these regimes because, in the presence of these deep uncertainties, technocratic regulators will have no legitimate regulatory theory to pursue. Regulation in these regimes, thus, will be more likely than average to constitute purely arbitrary infringements of liberty, even though some regulatory projects will address concrete harms or enact moral consensuses. Substantive constitutional rights provide an elegant tool for creating a conditional barrier to regulation, raising the cost of regulating without completely forbidding it.
She claims that -
American law has become and is becoming increasingly technocratic. To a greater and greater extent, our laws and regulations center on data—information and analysis. Partly, this technocratization arises from the increasing pervasiveness of law and economics, including welfare economics, for evaluating regulatory interventions. Law becomes technocratic as we choose particularly technocratic metrics, such as market functioning and group welfare, for evaluating regulatory interventions—metrics that are (or at least are imagined to be) more precisely measurable than democratic metrics such as political preference and representational success. In another important respect, though, the trend arises from the growth in information technology, which allows for technocratization of even non-technocratic evaluative standards. When we look to preferential, representational, and even moral success as our lodestar today, we have new tools — still crude, but improving — to measure that success. Indeed, modern regulators largely depend on technocratic measurement not only to formulate rules but also to justify them. To an increasing extent, therefore, our constitutional democracy is also a constitutional technocracy.

Our technocratic tools, however, are neither infallible nor omnipotent. There are many important regulatory questions — famously including interpersonal comparisons of utility — that we cannot measure at all or at least cannot measure reliably. Technology simply has limits. What, then, should a constitutional technocracy do if, because of these limits, a whole regulatory regime seems insusceptible to technocratic analysis? That is, if standard technocratic tools fail to provide answers for a given regime, how should modern regulators approach their job? Part of this paper's thesis is that, in such circumstances, the appropriate response is simply to abstain from regulating. If technocratic tools systematically fail in a particular regulatory regime, we should presumptively leave that regime to private ordering—we should be presumptively laissez-faire. The core of this paper's thesis is that our constitutional technocracy already contains such laissez-faire presumptions to protect regimes in which there are peculiarly high barriers to technocratic measurement and justification. The laissez-faire presumptions are our individual substantive rights.


The Counter Terrorism & Security Technology Centre of Australia's Defence Science & Technology Organisation [DSTO] has released a 109 page report by Minerva Nasser-Eddine, Bridget Garnham, Katerina Agostino & Gilbert Caluya on Countering Violent Extremism [PDF]. The document is of interest as a resource and as an indication of how parts of the national bureaucracy and the intelligence industry perceive the world.

The report
consists of a literature review and analysis of the existing research concerning 'countering violent extremism'. This multifaceted report demonstrates the complexity of understanding Violent Extremism and best strategies to Countering Violent Extremism. This has been undertaken with the broader analysis of radicalisation and social cohesion theories, models and government policies and how they may impact on or contribute to best practice and policy in countering violent extremism.
The authors comment that -
Part 1 of the report provides the foundations to understanding key concepts under review – terrorism, violent extremism, radicalisation and social cohesions. It also examines the theories and problems behind these concepts and how they in turn may assist in future policy initiatives and understandings of these areas of interest. The most significant critique that emerges from Part 1 of the report is the absence of universally accepted definitions for key concepts such as of terrorism, radicalisation and social cohesion.

Research of the post-2000 literature also suggests that not much has changed in the field of terrorism studies. A survey of the literature on terrorism generally highlights other deficiencies: first, a lack of primary source analysis; second, a continued general shortage of experienced researchers on this topic; third, the majority of authors who haven’t met with terrorists or undertaken any fieldwork in the area being written about; fourth, the reliance on limited methodologies and levels of analysis; and fifth, remarkably, little academic analyses is devoted to critiquing research into VE and terrorism studies. This is clearly shown by the limited number of relevant articles focusing on empirical research and the lack of seriously tested quantitative and qualitative field research or survey results.

Gaps that arise in the literature review include the lack of clarity as to how individuals move from simply being frustrated or disaffected towards accepting violence as a mode of political struggle. The problem again is that understandings of terrorism as set out in the literature still cannot explain why some people become terrorists whilst others do not. It is easy enough to show how radical ideas are internalised by terrorists post facto. But this does not explain why some people exposed to radical ideas are not radicalised. In fact, the majority of people exposed to radical ideas are not radicalised.

Part 2 of the report details the theories, debates and discussions arising within and among disciplines on the ‘root causes’ of VE/Terrorism. Responding to the ‘root causes’ of conflict means that approaches to countering violent extremism need to be embedded in consideration of the social, economic, political and historical contexts in which violence arises and the applicability and transferability of strategies between nations. The literature has demonstrated over the years that root causes are not static rather they are dynamic, fluid and constantly changing.

Part 3 of the report examines the development of multifaceted approaches to countering violent extremism through capacity building and innovation to respond to ‘new’ and complex forms of contemporary terrorism and violent extremism. A key tenet in much of the writing on countering violent extremism is that multifaceted approaches are needed (S Atran, 2004; R. Crelinsten, 2009; J Mroz, 2009a).

Part 4 of the report examines Counterproductive CVE. To prevent “counterproductive counterterrorism", Wilkinson (2001: 210) argues that “Above all, governments should try and avoid over-reaction and repression by their security forces”. The literature suggests that to do so hard power strategies for countering violent extremism must be carefully calibrated to be firm but never excessive, non-discriminatory, apolitical (Aly, 2008; Crelinsten, 2007) and adhere to established normative democratic frameworks and judicial processes (Crenshaw, 2010; Roth, 2008; Sabadia & Austin, 2007; Stohl, 2006; van Ginkel & Westervelt, 2009).
The report makes the following recommendations -
Develop an empirical research base

The majority of the literature in the field comprises commentary and critique and lacks an empirical research basis (Crenshaw, 2000; Loza, 2007; Ranstorp, 2006). Given that some areas of inquiry face unique challenges in the collection of primary data, innovative and creative methods need to be developed. Ranstorp (2006) argues that researchers need to tap into available primary source data in national archives including policy documents and public testimonies, court records and reports, and terrorist websites.

Invest in social science and transdisciplinary research approaches

Much of the research within the field is event-driven, reactionary and technically oriented (Ranstorp, 2006). To develop an in-depth, comprehensive, and contextualised knowledge base for understanding violent extremism and countering violent extremism as complex phenomena requires investment in collaborative and transdisciplinary social science and field-based methodologies (S. Atran, 2010; Crelinsten, 2007; Loza, 2007; Ranstorp, 2006; Sinai, 2007). Case studies are one method useful for situating forms of violent extremism and for developing approaches to countering violent extremism within their historical, political, and social contexts. However, relational analyses within and between cases are also needed to develop knowledge in the field (Duyvesteyn, 2007; Ranstorp, 2006). Phenomenological and ethnographic approaches would also enable researchers to capture the complexity of these phenomena and develop in-depth understandings of the experiences of those that participate in terrorist or violent extremist groups.

Develop scholarship and academic praxis in the field

Scholarship that conceptualises and theorises violent extremism and countering violent extremism as ontological phenomena that emerge in relation to particular contexts is required. Such approaches would move stagnant debates in the literature beyond superficial issues focussing on lack of theory and agreement on conceptual definition. Contemporary research must also build new contributions to the knowledge base upon the foundations of previous research through comparison, critique and the synthesis of research findings (Ranstorp, 2006). In addition, there is a lack of literature that focuses on methodology and research methods which given the importance of developing an empirical base in this field is required to advance research (Ranstorp, 2006).

Develop cross-fertilisation of knowledge between the intelligence community, academic disciplines and professionals in the field to enhance the relevance of research and the translation of research findings into practice

Resnyansky (2009: 52) writes that "There is an abyss dividing terrorism research from political, legal and national security practices". Bridging this 'researchpractice' gap therefore needs to be an object of methodological analysis and comparative research focussed on how other fields have approached this issue could be used to inform strategies. There are also divisions between different academic disciplines such as ‘intelligence studies’ and ‘terrorism studies’ (Ranstorp, 2006). To break down these ‘knowledge silos’ requires collaboration and inter-disciplinary communication through conferences and professional associations.

Research and scholarship is needed that focuses on ‘new’ forms of terrorism and violent extremism

Given that ‘new’ forms of terrorism are assembled according to transnational networks, research is needed to explore how these organisational forms operate and evolve including processes of innovation within groups (Brimley, 2006; Crenshaw, 2000; Ranstorp, 2006). A traditional focus on terrorism as an international phenomenon means that in the post 7/7 context there is a need to understand the emergence of what is dubbed ‘home grown’ terrorism and violent extremism. Violent extremism is expressed through a multiplicity of forms and guises and so there is an urgent need to expand the research gaze beyond Islamism and Muslim communities to the broader phenomenon.

Research and scholarship is needed to understand why some radicalised individuals become violent and why others don’t.

A current lack of clarity exists as to how individuals move from simply being frustrated or disaffected towards accepting violence as a mode of political struggle. The problem again is that they still do not explain why some people become terrorists and not others. In fact, the majority of people exposed to radical ideas are not radicalised.

Research and scholarship is needed that specifically focuses on approaches and strategies for countering violent extremism

As O’Neil (2007: 437) observes there has been a “shortfall of serious scholarly analysis of counter-terrorism”. Comparative research focussed on strategies for countering violent extremism would enable the development of best practice standards and enhance harmonisation and collaboration between nations and regions (Crelinsten, 2007; Guiora, 2009; O’Neil, 2007; Ranstorp, 2006). New forms of terrorism characterised by decentralisation and dispersion of ‘networks’ requires research on “what kind of counterterrorism networks would best meet the challenges they pose” (Crelinsten, 2007: 224).

To avoid counterproductive strategies, Crenshaw (2000) argues that it is important to investigate how terrorist groups perceive government actions and whether policy makers anticipate the effects of their actions on terrorist beliefs and perceptions or appreciate the adversary’s construction of reality. He also argues that research should focus on how governments learn from past experiences and build intellectual capital in dealing with terrorism and violent extremism.

Given the increasing inclusion and responsibility of the private sector in approaches for countering violent extremism, “Research in this area should focus on the different agencies that have been incorporated into the counterterrorism effort and examine how they have adapted to working in an environment with conflicting and competing demands for secrecy, openness, impunity and accountability”(Crelinsten, 2007: 226).

Research and scholarship is needed on the role of the media and information technology in relation to violent extremism and countering violent extremism

In relation to the role of the media, research is needed to analyse the ways in which terrorists use the mass media and the mass media has been used in strategies for countering violent extremism (Cvrtila & Perešin, 2009; Turk, 2004). In addition, the potential for media representation to contribute to tensions, conflict and potentially violence is a vast area for research (Crelinsten, 2007; Turk, 2004).

Research and scholarship is needed that focuses on pathways into and out of violent extremism Long term sustainable and effective approaches to countering violent extremism require an understanding of the pathways into and out of violent extremism (S. Atran, 2010). Research is needed to explore the processes and drivers of individual and collective mobilisation and disengagement (Chowdhury Fink & Hearne, 2008; Crenshaw, 2000; Ranstorp, 2006). As Chowdhury Fink and Hearne (2008: 18) argue, this “will assist states in better understanding how these processes relate to their counterterrorism strategies and capacities”.

A diversity of cultural approaches and discursive frames are needed to inform research and scholarship on violent extremism and countering violent extremism

The literature in the fields of violent extremism and countering violent extremism are dominated by discursive frames that emanate from western and particularly US epistemology and culture (Jongman, 2007; Ranstorp, 2006). There is an urgent need to enrich scholarship in these fields through alternative cultural and theoretical perspectives. This would include developing understandings of violent extremism from non-western cultural positions but also generating research on diverse language, religious, cultural, psychological, historical, political, and social backgrounds to inform culturally sensitive approaches and practices (Loza, 2007).

Penalty units

The excellent Summary Crime blog notes that the value of a penalty unit in Victoria has increased to $122.14, up from $119.45, with a fee unit rising to $12.22 from $11.95. The changes reflect the Monetary Units Act 2004 (Vic).

Penalty units are used to define the amount payable for fines for many offences, eg traffic offences, breaches of environment protection law and for sale of alcohol or a tobacco product to a minor.

In Victoria the rate for penalty units is indexed annually, in line with inflation, with effect from 1 July each year.

Fee units are used to calculate the cost of a certificate, licence or registration that is set out in an Act or Regulation.

Units and the associated statutes vary across Australia. In most jurisdictions the dollar amount of a penalty or fee unit is identified is an Interpretation statute, Penalties statute or Crimes statute, for example the Crimes Act (Cth). The number of units for a specific offence or charge is typically identified in discrete legislation or in the Crimes Act for the particular jurisdiction. Reference to a statutory interpretation Act means that changes to the dollar amount involves amendment of that Act rather than the legislature considering and passing an amendment to every statute featuring a penalty or charge.

Examples include -
Crimes Act 1914 (Cth) s4AA
Legislation Act 2001 (ACT) s133
Crimes (Sentencing Procedure) Act 1999 (NSW) s17
Penalty Units Act 2009 (NT) s5
Penalties & Sentences Act 1992 (Qld) s5
Acts Interpretation Act 1915 (SA) s28A
Penalty Units and Other Penalties Act 1987 (Tas) s4
Monetary Units Act 2004 (Vic) s5

Birth registration

'Protection through Proof of Age - Birth Registration and Child Labor in Early 20th Century USA' by Sonja Fagernäs notes that -
A birth certificate establishes a child's legal identity and is the sole official proof of a child's age. However, quantitative estimates on the economic significance of birth registration are lacking. Birth registration laws were enacted by the majority of U.S. states in late 19th and early 20th centuries. Controlling for state of birth and cohort effects, the differential timing of birth registration laws across US states is used to identify whether birth registration changed the effectiveness of child labor legislation between 1910 and 1930. The incidence of child labor declined significantly in the early 20th century. The study finds that if a birth registration law had been enacted by the time a child was born, the effectiveness of minimum working age legislation in prohibiting under-aged employment more than doubled. This effect was stronger for children residing in non-agricultural areas.
Fagernäs comments that -
For any law with an age requirement to fulfill its purpose, credible formal proof of age is required. Whether or not this exists, depends on whether the birth of the individual was officially registered, and whether a certificate exists, or can be requested from an official file. According to Article 7 of the United Nations Convention on the Rights of the Child (1989) "A child shall be registered immediately after birth ...". In most developed countries today, the registration of births is taken for granted. However, in many developing countries, the births of a significant proportion of children go unregistered. Birth certificates establish a person's legal identity and function as official proof of age (see e.g. Todres, 2003). According to a report by UNICEF (2005), without a birth certificate, children are unlikely to hold formal proof of age, and cannot necessarily be considered legally under-aged for certain activities, such as marriage, work, or prosecution. In several countries, access to health care and education can be denied without a birth certificate. Birth registration generates accurate figures on the population and is therefore also considered important for the planning of economic and social policies. Despite the potential significance of birth registration from an economic and welfare perspective, the study of birth registration has been neglected by economists. There is little existing statistical evidence on the economic significance of birth registration. Quantitative estimates are missing on the extent to which the lack of a birth certificate, or legal identity, constrains the economic and social opportunities of an individual, denies individuals of their legal rights, or how the lack of birth registration might inhibit social and economic planning at a national level.

In order to understand more about the potential economic significance of birth registration, this study takes a historical approach. It focuses on the early 20th century when state-level birth registration was gaining prominence in the United States, and where the timing of the enactment of registration laws varied across states. At this point in time, if births were registered, this generally happened early in the child’s life. Whether a child had a birth certificate depended on whether there were mandatory laws on birth registration, procedures for registration and filing of records, and whether uniform birth certificates were provided.

The question addressed is whether minimum working age legislation is more effective in combating under-aged employment when birth certificates are available as proof of age. This question is also relevant to today's developing world, where according to UNICEF estimates for 2010, one in six children aged between 5-14 are engaged in child labor3. At a more general level, this is a study on the importance of birth registration as an institution for the enforcement of any law that specifies a minimum age.
She concludes -
This study has analyzed the role of state birth registration laws in the effectiveness of minimum working age legislation between 1910 and 1930. It relies on individual-level census data pooled across three census years. The timing of the enactment of birth registration laws varied across U.S. states. Over the time period studied, the coverage of these laws varied not just across states, but also within states depending on the child's age, or birth cohort.

Identification of the legal effects relies on an econometric framework that controls for state of birth, age, birth cohort and survey year effects. Additionally state-specific cohort trends are included. Therefore, the models can control for any state-level and cohort-specific characteristics that might correlate with the timing of the birth registration laws. A simple state-level regression analysis on the correlates of the birth registration laws suggests that “pre-enactment” trends in core socioeconomic variables are mostly not associated with the timing. The economic effects of birth registration have received little interest, especially in the form of statistical evaluation. The results show that state-level laws on birth registration improved the effectiveness of child labor laws in reducing the incidence of child employment in early 20th century USA. Full birth registration coverage was not reached immediately after the laws were enacted. However, the existence of these laws made birth registration mandatory and resulted in uniform procedures for recording births. Copies of birth certificates were filed centrally, and birth certificates could be demanded as proof of age for work permits, or to verify the age of working children. Indeed, there was a connection between whether a state had enacted a state birth registration law and whether it required documentary proof for issuing work permits to children by 1907.

The results show that between 1910 and 1930, minimum working age laws reduced employment of 12-15-year old children by approximately 5 percentage points. With a few exceptions, the results indicate that birth registration laws did not have a common effect on the employment of all children, or affect the employment of the work-eligible. Their main effect was to enhance the effectiveness of minimum working age legislation in prohibiting under-aged employment. The likely explanation is the improved ability to deny work permits from the under-aged. On aggregate, between 1910 and 1930, children below the minimum age were over 8 percentage points less likely to work than work-eligible children when they had been born with a birth registration law in place. When they had been born prior to a birth registration law, under-aged children were only 3-4 percentage points less likely to work than work-eligible children. Birth registration improved the enforcement of minimum working age legislation with respect to underaged employment. The effect of birth registration laws was stronger in 1910 and 1920. The incorporation of birth registration as an additional dimension might explain why some previous studies on child labor laws in the USA have not confirmed a relationship with child employment, or found a weak relationship.

A further investigation suggests that the impact that birth registration laws had on the effectiveness of minimum age legislation was larger in counties, where the majority of individuals worked outside agriculture. In such states, working children were also much more likely to engage in nonagricultural activities, where work permits were required. This supports the conclusion that the channel of effect was the use of birth certificates to ascertain a child's true age in the process of granting, and verifying work permits. The minimum working age limit did not affect the employment of black children, and birth registration did not enhance the effectiveness of the minimum working age legislation for black children. This is a historical study, but the findings are relevant for today's world as well at a general level. Birth registration rates are low in many developing countries and in several the enactment of birth registration laws has been a recent phenomenon (see e.g. Cody, 2009 for some specific examples).

Although there may be a birth registration law in place, its enforcement has often been poor with limited access to registration services and a lack of resources. Child labor is still prominent in developing countries. Similarly to the USA in early 20th century, a large share of this employment is agricultural, on family farms. However, a share of children also work for a salary in manufacturing or services, and this varies by country.

Child labor laws are evidently only one factor that reduced child employment. However, the results of this study imply that minimum age legislation is more likely to be effective when a functioning birth registration system is in place. This study has focused on child labor, but it suggests that there is reason to belief that age limits in other areas, such as the right to marry, or school entry, might function more effectively with strong birth registration systems. These are questions for further study.

Canonicity and carnality

Thinking about the bounds of academic publishing after reading 'Too many dicks at the writing desk, or, how to organise a prophetic sausage-fest' by prolific Newcastle academic Roland Boer in 16(1) Theology and Sexuality (2010) 95-108 and an associated editorial comment.

Boer states that -
The key issue for this paper is the role of writing in both the production of and instabilities in prophetic masculinity. I draw upon three sources: the work of Lévi-Strauss concerning the 'writing experiment', Christina Petterson's exploration of the role of writing in constructing the ruling class in colonial Greenland, and some of my older work concerning the auto-referentiality of references to writing and scribal activity in the Hebrew Bible. Armed with these theoretical strings, the paper has two phases – what may be called 'organising the sausage-fest' and 'too many dicks at the writing desk'. The first concerns the production of masculinity, the second its problems.

So, in the initial sausage-fest I argue that the subtle and over-riding process of producing masculinity in the prophetic books is through the representation of the act of writing – what may be called the act of the spermatic spluttering pen(ise)s. In attributing writing to the writing prophets (Isaiah, Jeremiah and Ezekiel), rather than merely 'recording' what they said and did, the scribes write themselves into the story. Not only do scribe and prophet merge into one, with the written and writing prophet acting as a cipher for the scribe, but the scribe easily slips into the zone of absolute power, one in which even God obeys his dictates. No wimps here, no effeminate and weakly scribes (contra Boyarin); writing is the means of constructing a very male ruling class.

However, no hegemony is ever complete, able to rest at peace in its power. In order to examine the way the scribal act of masculine production runs into trouble, I focus upon the anomalies of this constructed coterie of ruling males, especially the way the all-powerful role of prophetic scribal activity becomes masturbatory. Both the story of 'Jeremiah the bejerked' and the narrative of Ezekiel's auto-fellatio reveal the absurdity of the extraordinary claims made by the scribal prophet who constructs the world itself, let alone its masculine class structure in which he is supreme. In fact, we fold back to the fundamental creation story of Egypt, in which Atum-Ra masturbates into his fist and thereby creates the world.

In Ezekiel, chapter nine, verses 2-3 and 11 we find an extraordinarily curious phrase: weqeseth hasofer bemotnayw. Commentators are not keen to make much of it, usually rendering it as something like 'a writing case at his side', or perhaps 'a writing kit at his loins'. Let us take a moment to see what it actually means, for it will become a key marker for my argument concerning masculinity in prophetic texts.

As for Ezekiel 9, qeseth is one of those Ezekelian hapax legomena, to which commentators a little too rapidly attribute the meaning of – perhaps – a writing case or inkpot or tablet, albeit with the flimsiest of evidence. It may be worth asking why commentators make nothing of this text, preferring a neutral sense for a hapax legomenon like qeseth, when in other cases – such as the explicit texts of Ezekiel 16 and 22-23 – the overwhelmingly male coterie of biblical scholars is all too ready to espy in hapax legomenae references to women’s genitals. Is it because the sexualising the textual bodies of women is a way of objectifying and thereby disempowering them, while the textual bodies of men must not be so treated? If so, then my reading is an explicit attempt to sexualise, objectify and thereby disempower textual male bodies. So, in light of what follows, I suggest that here we have a tool, or more specifically a stylus of the one who follows. And he is the sofer, simply a scribe, one who writes texts and does things with numbers; the word is the qal present participle of the verbs fr, to write and number. Qeseth sofer is then the tool of the writer, the scribal stylus.

But what about bemotnayw? The preposition be is obvious, but let us stay with its basic sense of 'on' or even 'in'. And motnayw is the masculine singular possessive of motnayim. Note the dual form, for that will soon become important. Motnayim is supposed, according to lexica, to designate the muscles binding the abdomen to the lower limbs – abs, as we might call them in our parlance. In this respect, it is a parallel term to halatsayim, the section of the body between the ribs and the hip bones.

But there is one curious, usually unexplained feature of both terms, hinted at in the brilliant older translation as 'loins': both words end in the rare dual form. As any student of introductory Hebrew knows, two classes ofdual forms remain, one less obvious (waters, heavens, Egypt, Jerusalem), the other far more obvious, for they refer to natural pairs relating to the body: eyes, ears, hands, feet, lips, hands (but also shoes, horns and wings). A question springs forth: why are the terms usually rendered loins or abs in the dual form? We are, I would suggest, in the realm of testicles, nuts, the family jewels. Indeed, one cannot help wondering whether the Bible is engaged emphatic overkill, for not only do we have the rare dual form for halatsayim and motnayim, but we also have two terms that mean the same thing – as the parallelism in Isa 11:5 shows all too well. Is this a case of naming each of the twins with a name that evokes its brother, like tweedledum and tweedledee, or frick and frack?
And so on, for another 14 pages.

30 June 2011

Alternative therapy

Earlier this year I provided a smewhat acerbic submission to the Australian Health Ministers Advisory Council regarding that body's investigation of regulation of 'alternative health practitioners', including exponents of 'magic touch' and other parapsychological mumbo jumbo.

My attention has been drawn to an ABC news item, under the deliciously restrained heading "'It's real': Priest reveals exorcism rituals" -
Apart from heads spinning in 360-degree circles and streams of flowing green vomit, real-life exorcisms are remarkably similar to what you see in the movies, an Australian exorcist says.

Father Barry May - an Anglican priest, exorcist, author and former police chaplain - has performed dozens of exorcisms in his 40 years of ministry.

The 73-year-old Perth man says more Australians are seeking exorcisms, and as such, over the past four years he has dedicated his life solely to ridding people of their demons.
He's apparently unenthused by the notion that he should retire, rather than serving as a sort of geriatric Buffy the Vampire Slayer. The ABC reports that -
Father May tells anyone sceptical about the ancient Catholic ritual to "get real" and psychologists have backed the man, saying exorcism "has its place" in society.

"I've been spat at, yelled at, grabbed at, sworn at, had people trying to rip my crucifix off my throat, gouge my eyes out, fighting, assault. I get all that stuff and you tell me it's superstition?" Father May said.

"No, get real. And that's exactly what it is, it's real.

"Forget the head spinning and the green vomit you see in the movies, but the rest of what you see in the movies is damn close to being real, it's not funny.

"It takes a lot out of me, I sweat profusely. It's a real exercise-and-a-half I tell you."
I do like the apparent assumption that anyone who badmouths Rev May must be infested by a creature of the night.
Father May says his first calling into the world of demons came in the 1970s when a woman at a funeral he was conducting asked him if he believed in ghosts.

"I thought it was a rather strange question to ask," he said.

"I told her 'yes', and she said 'well I've got a ghost in the house next door to me'. So I went to her house and dealt with it."

Since then he has developed an expertise in exorcism - casting the "evil one" out of people - and is approached by hundreds of people each year who claim to be possessed by a demon - or two.

"I remember I did one with a girl who was about 23 years of age and I kept saying to her 'are you free yet?'.

"And she would say 'no I'm not', in her own voice.

"It took hours and hours to deliver her and as soon as I said 'spirit, reveal yourself', she would growl and spit and cross her eyes.

"She threw about 12 of the demons out and she was free."
So much for schizophrenia or other mental states.

Roman Catholic Bishop of Lismore Goffrey Jarrett helped the intrepid ABC reporter by stating that
Minor exorcism ordinarily takes place in many of the church's rites and sacraments, using the sign of the cross, and in the blessing of people and material things such as holy water.

"Major exorcism, however, may be required in rarer cases where it is established by appropriate investigation that the victim's claim to be tormented by a demon is really true.
Rev May reportedly
performs both types of exorcism, but major exorcisms are his specialty. He says the ritual requires a crucifix, candle, holy water and most of all, a commanding voice.

But he says he will only perform one if, after several interviews and meetings with the person, he deems them to be possessed, rather than psychologically ill.

"I might see somebody every two weeks but generally I might have only done 20 exorcisms in my life," he said.

"The ancient rite of exorcism is only used after a lot of investigation and the person needs to agree to it... not everybody has demons. I think that's a mistake people make."

In a successful exorcism, Father May says the demon is sent straight to hell. But he says there is always the risk it will inhabit another person in the room.
Let's not stop there.
Father May says one of his worst experiences has been with women and men who claim to have been raped by demons while lying in their beds at night or watching TV.

"It's rather a mystery because although intercourse doesn't take place they feel as though it has. They feel absolutely ravished and raped, and several women have had that problem," he said.

"I've had two men tell me they've had that same problem with female demons who try to have sex with them."
The report doesn't offer information on whether there are demon offspring.
Lismore's Bishop Jarrett puts the issue down to "a widespread preoccupation with Satanism and various occult practices", and Father May agrees.

"People are messing around with stuff they don't know," he said.

"They're not all crackers, they're not all psychos, they're those ordinary people who live in our streets, they've done something they shouldn't have done and they've got their fingers burnt."
There's a lesson there, dear readers ... stay away from the ouija board - that gateway to the domain of beelzebub - and the loopier articles in parapsychology journal World Futures!

Contemporary Australian law is uncomfortable in dealing with injury or death associated with exorcism, so be cautious if you are inspired to engage in a bout of DIY demon-removal. Examples are R v Vollmer & Ors [1996] VicRp 9, Regina v Mika and Sagato [2000] NSWSC 852 and Regina v Amete [2000] NSWSC 439.

Ugly American Hermeneutics

'Ugly American Hermeneutics' by Francis Mootz III in 10(3) Nevada Law Journal (2010) 587-606 argues that -
American legal hermeneutics isn’t just homely, it is ugly. Downright ugly. Butt ugly. Ugly to the bone. The desuetude of American hermeneutics is highlighted in high-definition technicolor every time the United States Senate undertakes to confirm a new Justice to the Supreme Court. In the recent hearings leading to the confirmation of Justice Sotomayor we had to endure innumerable idiocies as some Senators seized upon various statements by Judge Sotomayor regarding how her background as a poor, working class Latina might have informed her work as an appellate judge.
Mootz asks
whether American legal hermeneutics is "ugly" and is practiced by "ugly Americans". The pejorative cast of this terminology is obvious and intentional, but it is also ambiguous and multi-layered. In this Essay I unfold these various dimensions of ugly American hermeneutics and suggest that — ugly though we may be — American scholars still can make some important contributions to the worldwide conversation regarding legal hermeneutics. It is our plain-faced pragmatism, perhaps, that is the source of our contribution even as it casts us (sometimes unfairly) as the ugly Americans.
In discussing judicial conformation processes he comments that -
The most embarrassing part of the spectacle, though, occurs when the nominee kowtows to this absurd conception of judging and reaffirms that she will judge in accordance with the law, as if the law can be determined and understood before the adjudicative act. Judge Sotomayor was less the automaton than most, but she quickly established her bona fides in the heart of her opening statement.
In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.
At moments like these, one can only echo Colonel Kurtz: "The horror! The horror!"

This is ugly American legal hermeneutics at its most base, of course, as it occurs in a staged political forum where the substance of the slogans tossed around by the participants is less important than their symbolic resonance. I begin with the profane image of confirmation proceedings, though, because it calls forth the fantasies that gird the American legal system. Like a dream elicited on the psychoanalyst’s couch, the confirmation hearings reveal the psychology that claims to justify much of everyday practice, even if most sophisticated participants — removed from the glare of the television cameras and lights — would admit that such fantastic accounts lack any descriptive integrity.

The core of the fantasy underlying American legal practice is the claimed ability to separate “the law” from “the application of law in practice.” The law is abiding, certain, and pre-determined through democratic processes. The application of law in particular cases is rigorously attendant to the law such that, even if the application is not wholly deductive in character, it is still highly constrained by the law. This fantasy is often equated with the ideal of the "rule of law", and so preserving this legal imaginary becomes a matter of utmost importance in preserving the legitimacy of the legal system. By repeating the fantasy and holding the United States up to the world as an exemplary legal community precisely because we embrace this fantasy, American legal hermeneutics generates puzzlement among legal scholars schooled in the continental tradition. American legal hermeneutics is ugly because it is a loud and garish proclamation of American exceptionalism, paired with an anti-intellectualism that seeks to insulate our fantastic legal imaginary from serious inquiry, never mind rigorous critique.
Mootz concludes that -
If beauty is only skin-deep, so is ugliness. The redemptive features of American hermeneutics are found in legal practice, which is never successfully subjugated by the fantastic — in the full sense of that word — accounts provided by theorists. Looking past the superficial theoretical dressing, American legal hermeneutics is vibrant and sophisticated. Although American hermeneutical scholars generally are untutored in, and dismissive of, the relevance of Heidegger,
Gadamer, Ricoeur, or Derrida to legal hermeneutics, this situation does not amount to a complete embarrassment. Ugly American hermeneutics provides a healthy dose of skepticism about the utility of embracing sophisticated philosophies simply for the sake of the sophistication; Parisian fashion, after all, is not designed for everyday wear. The theoretical simplicity of American hermeneutics is a bracing corrective to the tendencies toward the mystical, baroque, and paranoid that often lurk within the European traditions. Ugliness has its virtues.

At the same time, there is a possibility of drawing from more sophisticated hermeneutical traditions without sacrificing the pragmatism and practice-oriented perspective that defines the American legacy of written constitutionalism and common law adjudication. In my work I have read Gadamer’s philosophical hermeneutics as radicalizing Heidegger’s fundamental ontology by taking a “turn” toward dialogue rather than following Heidegger’s “turn” to poetry and the ineffable language of the Gods. This jurisprudential framework is also used by Bill Eskridge in his work on statutory interpretation, and provides a sophisticated extension of Francis Lieber’s pathbreaking efforts in the early years of the American Republic. There is no need to choose between plainfaced pragmatic practices and sophisticated theorizing. Rooting sophisticated hermeneutical theory in the practices at hand is itself a hermeneutical theory, and it is precisely at this juncture that the conversation between scholars from Brazil and the United States might be most productive.

29 June 2011

They said it

From the Philip Morris corporate site, somewhat more more revealing than its anti-plainpackaging site -
Smoking and Health

Tobacco products, including cigarettes, are dangerous and addictive. There is overwhelming medical and scientific evidence that smoking causes lung cancer, heart disease, emphysema, and other serious diseases.


All tobacco products are addictive. It can be very difficult to quit smoking, but this should not deter smokers who want to quit from trying to do so.
Nice to see an acknowledgement that cigarettes aren't good for you and that they are "addictive" rather than merely dangerous.

The site goes on to state -
Secondhand Smoke

Public health officials have concluded that secondhand smoke from cigarettes causes serious diseases in non-smokers, including lung cancer and heart disease. We believe the public health conclusions on secondhand smoke are sufficient to support smoking restrictions in public places.
Not, apparently, sufficient to support broader restrictions such as the proposals highlighted here and here.

Philip Morris continues -
Effective Regulation

Philip Morris International (PMI) supports comprehensive regulation of tobacco products based on the principle of harm reduction.

To be effective, tobacco regulatory policy must be evidence-based, apply to all tobacco products, and should take into account the views of all legitimate stakeholders including public health authorities, government finance authorities, tobacco manufacturers, and other members of the tobacco supply chain.
Manufacturers and finance authorities are more equal than the others, with intellectual property interests overriding concerns regarding public health?

Philip Morris states that -
Regulatory policy must consider the potential to trigger adverse consequences which undermine public health objectives, such as increasing the demand for illicit cigarettes.

While we support comprehensive, effective tobacco regulation, we do not support regulation that prevents adults from buying and using tobacco products or that imposes unnecessary impediments to the operation of the legitimate tobacco market. In that regard, we oppose measures such as generic packaging, point of sale display bans, total bans on communications to adult consumers, and bans on the use of all ingredients in tobacco products.
The tobacco industry over several decades was aware of harms associated with smoking. It failed to act responsibly. Appeals to principle are, alas, somewhat hollow.

A Philip Morris media release states that -
Philip Morris Asia Limited (PMA), Hong Kong, owner of Australian affiliate, Philip Morris Limited (PML), today announced that it has served a notice of claim on the Australian government, stating its intention to pursue legal action over plans to introduce plain packaging in Australia for tobacco products. PMA is taking action under Australia’s Bilateral Investment Treaty with Hong Kong.

"The forced removal of trade marks and other valuable intellectual property is a clear violation of the terms of the bilateral investment treaty between Australia and Hong Kong. We believe we have a very strong legal case and will be seeking significant financial compensation for the damage to our business," said Anne Edwards, spokesperson for PMA.

PML has a long history in Australia, manufacturing and selling cigarettes since 1954. Over this time, PML has built well-known brands such as Marlboro, Alpine, Longbeach, Peter Jackson, choice and GT. Plain packaging robs PML of its ability to use these brands to differentiate from competitor brands, effectively turning tobacco products into a commodity. Damages caused by plain packaging may amount to billions of Australian dollars.

"Legal action is not a course we take lightly, but the government has unfortunately left us with no other option," continued Edwards. "The government has consistently ignored the concerns expressed by a broad range of domestic and international stakeholders about the adverse consequences of plain packaging and has failed to demonstrate that the policy will stop people from smoking."

Renowned law professor at Georgetown University Law Center, Don Wallace Jr., Chairman of the International Law Institute and an expert on investor-state disputes, said "Plain packaging legislation would expose Australia to well-founded claims under the treaty, potentially costing the Australian government billions of dollars in damages."

The notice served on the Australian government by PMA begins a mandatory period of three months during which the parties must attempt to negotiate a satisfactory outcome. If this is not achieved, PMA will then proceed to the next step of arbitration proceedings pursuant to the Arbitration Rules of the United Nations Commission on International Trade Law 2010
Article 3 of the Treaty does not appear to prevent restrictions on packagaging (the Australian regime would apply to all cigarette manufacturers, rather than on a discriminatory basis to those with an connection to the HK SAR). Restrictions on the use of intellectual property are arguably not "expropriation" under Article 6. Expropriation is permitted if it is subject to "due process of law, for a public purpose related to the internal needs of [Australia], on a non-discriminatory basis, and against compensation".

In October 2010 another media release stated that -
PMI statement and background information regarding the company's Bilateral Investment Treaty (BIT) claim against the government of Uruguay

A number of stories have recently appeared in the media relating to a Bilateral Investment Treaty (BIT) claim against the government of Uruguay. Many of these stories contain inaccurate and misleading information.

Philip Morris International (PMI) is not seeking to overturn public place smoking restrictions, lift advertising restrictions, prevent graphic warnings on cigarette packs or reverse bans on the descriptors such as milds or lights. In fact, we have supported regulations in each of these areas.

Our BIT claim only challenges three regulations implemented in 2009 by the former administration that go far beyond public health objectives:
... * an increase in health warnings on tobacco packaging to 80%. Although we support regulations requiring prominent health warnings, the requirement of 80% leaves virtually no space on the pack for display of legally protected trademarks.
* a requirement to print images on tobacco packaging that include repulsive and shocking pictures, such as a grotesquely disfigured baby. We do not oppose the use of graphic health warnings but believe that images should accurately depict the health effects of smoking.
Far beyond public health objectives?

The same media release states that -
We have supported and will continue to support effective and sensible tobacco regulations. The three measures challenged, however, are neither. They are extreme, have not been proven to be effective, have seriously harmed the company’s investments in Uruguay and have deprived the company of its ability to use its legally-protected trademarks and brands.
Given the corporation's acknowledgement that cigarettes are "dangerous" and "addictive" I'm underwhelmed by Philip Morris' comment in that media release -
This Bilateral Investment Treaty claim is specific to three regulatory measures in Uruguay as described below. Prior Uruguayan governments have implemented numerous regulations, including smoking restrictions in public places, advertising restrictions, mandatory 50% health warnings, and a ban on the use of descriptive terms such as "light", "mild", "ultra light". The companies have not challenged any of these regulations.

The three measures challenged in the Request for Arbitration are, however, different. They are extreme, and in some cases confiscatory, regulations that have seriously harmed the companies’ investments in Uruguay and deprived the companies of their ability to use their legally registered brands. ...

A second measure, Decree 287/09, expands the size of the mandatory warning labels on cigarette packaging from 50% to 80% of the front and back panels of the package. No such requirement is in effect in any other country in the world. The size of the warning makes it virtually impossible for the companies to use their brands and trademarks to promote their own products or even distinguish them from other brands. The companies -- along with most other countries worldwide -- consider the previously mandated 50% health warnings more than sufficient to clearly communicate the well-known health effects of smoking.

A third measure, Ordinance 514 (1), requires the companies to include pictograms as part of the health warnings on packaging. The companies have no per se objection to regulations requiring pictograms.

However, the specific pictograms required by the Ministry of Public Health do not warn of the health effects of tobacco use, as would be appropriate; rather, they include shocking and sensational images designed to evoke emotions of repulsion and disgust, even horror. It is difficult to understand, for instance, what meaningful information can be drawn from seeing an image of what appears to be a burnt and grotesquely disfigured baby on a pack.
Given the addictive attributes of smoking it may be appropriate for health agencies to deploy "emotions of repulsion and disgust, even horror" ... the "meaningful information" is that smoking isn't a good thing.

Border incapacity?

'Control and the Limits of the Sovereign State' (Oxford Legal Research Series Paper No 32/2011) by Mary Bosworth argues that -
As has been widely recognised and commented upon, border controls across Europe and America have been strenuously tightened since September 11, 2001. In fact, of course, the movement of certain non-citizens in and around most western, industrialised countries had been restricted for some time predating the advent of the 'war on terror'. In this article I will explore the particular use being made in Britain of criminal justice rhetoric and policy as a means of securing the border and the implications of this reliance on criminal justice discourses in the development of immigration and asylum policies. Building on work by David Garland (1996) and Jonathan Simon (2007), I suggest not only that the increased concern over border control reflects a decline in the power of the state in the face of globalisation, but also that the adoption of harsh rhetoric about foreigners risks undermining the agency and democratic freedoms long held dear by British citizens.
Adoption of harsh rhetoric is regrettable, counter-productive but not particularly new and Bosworth's disregard for history is somewhat surprising. Is the power of the state declining? Arguably no - a shift in power isn't necessarily a decline, irrespective of whether you invoke Zygmunt Bauman or David Garland.

Bosworth goes on to comment that -
Work by David Garland and Jonathan Simon, along with many others, would, however, suggest that we should not consider [UK migration] legislation purely as a response to foreigners, but rather as indicative of the power of the state itself. For if, as Jonathan Simon attests, the criminal law is an integral statement about the power of the sovereign state, then surely immigration law is even more so. Yet, as in criminal law, where Garland observed more than a decade ago, the state has become in practice relatively powerless to influence crime rates, immigration and asylum statistics suggest that so too are governments unable these days to secure their borders. In such a world harsh policies about foreigners may, like punitiveness, "pose as a symbol of strength but… should be interpreted as a symbol of weak authority and inadequate controls." (Garland, 1996: 445).

In this world, as in the criminal justice system, the actual utility and success of incarceration and other methods of population control drawn from the criminal Border justice system, are dominated by their symbolic effect. Institutions of confinement like Immigration Removal Centres provide material evidence that the state is taking an issue seriously, while the ever increasing ability of the state to monitor noncitizens constantly reminds the community that it needs protection. Such 'security' strategies, imposed often in the absence of a known threat, have become a central, though not unchallenged, means of asserting power in a time when states have been "stripped of a large part of their sovereign prerogatives and capacities by globalization forces which they are impotent to resist, let alone to control". (Bauman 2004: 56) As the government seeks increased powers to detain without trial individuals posing a terrorist threat, the purported 'risk' posed by those in immigration detention is bound to rise. Though these populations are clearly distinct, racial, ethnic and religious similarities between them, as well as their generalized 'difference' from the majoritarian community, are sufficient for them to be viewed as equally suspicious. The fact that people from each kind of population can be treated the same way – confined without charge – further seals their fate.

Since September 11, 2001, security increasingly has been constructed in such a way that elides external events such as the 'war on terror' with internal security (Bigo, 2002, see also Zedner 2003). In this activity, the prison and detention center seem to have acquired a new vibrancy and an enhanced legitimacy. Prisons are now the new borderlands, protecting us not just from the trouble within, but also from without. Given their track record and the distinct nature of individuals who are being grouped by the new immigration legislation, the obvious question that remains to be answered is what the long-term effects will be on public life and the democratic process of this particular form of 'governing through crime'. Perhaps more broadly still, it behooves us to consider the implications of these policies on British national identity and on the notion and ideal of citizenship itself.


The Centre for Internet Safety (CIS) at the University of Canberra has launched its site.

The Centre was created to
foster a safer, more trusted Internet by providing thought leadership and policy advice on the social, legal, political and economic impacts of cybercrime and threats to cybersecurity.

We share our ideas and research via publications, roundtables, conferences, public speaking and media engagements as actionable insights for governments, businesses and individuals.
The Centre's focus is on research to "help better understand, qualify and quantify the issues arising from cyber crime and threats to cyber security".

In the coming year it will concentrate on -
• the impact of cyber crime on e‑Commerce, m-Commerce and business viability

• the interaction between governments, businesses and consumers to reduce cybercrime and threats to cybersecurity

• policy and legal questions stemming from cybercrime and threats to cybersecurity

27 June 2011

Offender fears about victimisation

Release of the House of Representatives Committee Doing Time report on Indigenous youth and crime coincides with the Australian Institute of Criminology 8pp DUMA study [PDF] by Josh Sweeney & Jason Payne on Victimisation and fear of crime among a sample of police detainees: Findings from the DUMA program.

The auithors comment that -
For policymakers and practitioners, these results reaffirm existing literature on the challenges faced by victims of crime throughout the community. More importantly, they serve as a reminder that the experience of victimisation is not evenly shared across the population, but instead concentrated among already socially isolated groups in our community. Other practitioners in the field of criminology and victimology have referred to this as the 'principle of homogamy' — the notion that victims and offenders often share similar socio-demographic characteristics and that those people who live near or in a similar socioeconomic context to offenders are those with the greatest risk of victimisation .... This has obvious consequences for the measurement of victimisation using national instruments where methodologies under-sample such populations.

Further, while there is no data in this study to implicate victimisation as a primary cause of a person’s initiation into offending, there is some evidence to suggest that for those already involved in crime, victimisation may be one of a number of important factors that influences reoffending. For criminal justice practitioners involved in the community-based supervision of offenders, knowledge of victimisation and its likely consequences could prove important in reducing recidivism and thereby improving outcomes for individual offender case management programs.
Among specifics -
• 58% of all detainees who had their motor vehicle stolen reported the most recent incident to the police. Of those who did not, the majority thought that the matter was too trivial (25%) or private (25%) to report; 17% did not report the incident for fear that the offender would be punished.
• Half of the detainees who were burgled (52%) reported their most recent experience to the police. The most common reason given for not reporting a burglary was that the police would not do anything (31%), although again, it was not uncommon for detainees to state that the burglary was too trivial or private to be reported.
• For all three crime types, a sizable proportion of detainees recorded 'other' reasons for not reporting their most recent experience to the police. When asked to elaborate, common responses included 'I sorted it out myself', 'Don't trust the police' and 'I just didn't feel like it'.

Of those detainees who were physically assaulted in the previous 12 months, a greater proportion of females than males reported their assault to the police (38% versus 31%) and older detainees aged 36 years and over were more likely than younger detainees aged 18 to 25 years to report their assault (45% versus 28%). Of those who did not report to the police, female detainees were more likely than males to indicate that the matter was too private (31% versus 21%) whereas males were more likely to indicate that the matter was too trivial to report (19% versus 3%).

For victims of motor vehicle theft and burglary, the numbers were too small to provide any meaningful analysis of the reasons for not reporting by gender and age.
The authors comment that -
In all cases except one, the expectation of future victimisation was higher than the experience of past victimisation; that is, more people feared crime than had experienced it. The one exception related to assault among female detainees, where the prevalence of actual physical victimisation was higher than their expectations of victimisation in the future (41% experienced versus 36% expected).

The experience of assault was found to be higher among younger detainees aged between 18 and 25 years (34%) than those aged between 26 and 35 years (29%) or 36 years and older (26%). Motor vehicle theft victimisation was generally consistent across the age distribution (3–4%), whereas burglary victimisation was more commonly reported by detainees aged 26 years or older (11%) compared with younger detainees aged between 18 and 25 years (7%).

Comparative analysis with the weighted sample of respondents from the 2004 ICVS showed that rates of victimisation in the general population are much lower than among police detainees. For example, police detainees in this study were six times as likely to report having been the victim of a physical assault (30% versus 5%), four times as likely to have had their motor vehicle stolen (4% versus 1%) and three times as likely to have been burgled (10% versus 3%).
In discussing the reporting of victimisation the authors note that -
Detainees who reported having been a victim of assault, burglary, or motor vehicle theft were asked whether they had reported the most recent incident to the police and if they had not, their reason for not reporting. The results indicated that One in three detainees (33%) reported their mostrecent assault to the police; two in three (67%) did not. Of those who did not, the majority thought that the matter was too private (23%) or too trivial (16%) to report, while one in 10 (13%) were afraid of reprisal. ...

Across the three crime types, a large number of adult detainees said they did not report their victimisation to the police as it was a private matter. This may be partly attributable to the large proportion of detainees who claimed to have known the person who committed the offence against them. For those self-reported victims of physical assault, two in three (62%) reported having known the offender. Although not as high, the proportion of burglary (40%) and motor vehicle theft victims (35%) who knew their offender was still unexpectedly high, since for these two crime types (given their low clearance rates) it is commonly assumed that victims and offenders are unknown to each other).

Nearly all female detainees (90%) who had been physically assaulted in the past 12 months claimed to have known their offender on the last occasion, while this was the case for only 55 percent of males who had been physically assaulted. These findings are consistent with previous research that has shown that men are more likely to be assaulted by strangers and women are more likely to be a victim of assault by someone they know, such as an intimate partner. Female detainees who were victims of a burglary, were also slightly more likely than male detainees to have known
their offender (46% versus 38%).

A similar question was asked for assault victims in ICVS, with results indicating that 44% of the general population claimed to have known their offender, which was substantially lower than was reported by police detainees as a whole (62%). Women were again more likely than males to claim to have known their offender (59% versus 42%), although these levels were substantially lower than those reported by police detainees for both females (90%) and males (55%).

Doing time

The House of Representatives Standing Committee on Aboriginal & Torres Strait Islander Affairs has released its 378pp Doing Time - Time For Doing report [PDF] on Indigenous youth and the criminal justice system.

The report argues that Indigenous social and economic disadvantage have contributed to "the high levels of Indigenous contact with the criminal justice system". The report also argues that "there is intergenerational dysfunction in some Indigenous communities which presents a significant challenge to break the cycle of offending, recidivism and incarceration". Some of the recommendations are depressingly familiar.

The Committee's terms of reference were to "inquire into the high levels of involvement of Indigenous juveniles and young adults in the criminal justice system", identifying ("with a particular focus on prevention and early intervention") -
• How the development of social norms and behaviours for Indigenous juveniles and young adults can lead to positive social engagement

• The impact that alcohol use and other substance abuse has on the level of Indigenous juvenile and young adult involvement in the criminal justice system and how health and justice authorities can work together to address this

• Any initiatives which would improve the effectiveness of the education system in contributing to reducing the levels of involvement of Indigenous juveniles and young adults with the criminal justice system

• The effectiveness of arrangements for transitioning from education to work and how the effectiveness of the 'learn or earn' concept can be maximised

• Best practice examples of programs that support diversion of Indigenous people from juvenile detention centres and crime, and provide support for those returning from such centres

• The scope for clearer responsibilities within and between government jurisdictions to achieve better co-ordinated and targeted service provision for Indigenous juveniles and young adults in the justice system

• The extent to which current preventative programs across government jurisdictions are aligned against common goals to improve the health and emotional well-being of Indigenous adolescents, any gaps or duplication in effort, and recommendations for their modification or enhancement.
The Committee argues that the following principles must be applied in seeking to effect change regarding Indigenous disadvantage and disproportionate incarceration rates -
• engage and empower Indigenous communities in the development and implementation of policy and programs

• address the needs of Indigenous families and communities as a whole

• integrate and coordinate initiatives by government agencies, non-government agencies, and local individuals and groups

• focus on early intervention and the wellbeing of Indigenous children rather than punitive responses, and

• engage Indigenous leaders and elders in positions of responsibility and respect.
The associated recommendations are -
R1 - National Partnership Agreement
... that the Commonwealth develop a National Partnership Agreement dedicated to the Safe Communities Building Block and present this to the Council of Australian Governments by December 2011 for inclusion in the Closing the Gap strategy.

R2 - Justice targets
... that the Commonwealth endorse justice targets developed by the Standing Committee of Attorneys-General [SCAG] for inclusion in the Council of Australian Governments' Closing the Gap strategy. These targets should then be monitored and reported against.

R3 – Positive social norms
... the Commonwealth continue to fund holistic, intergovernmental services to Indigenous youth and their families and communities, such as Communities for Children Plus, and evaluate their effectiveness in strengthening positive social norms in communities and preventing Indigenous youth engagement with the criminal justice system.

R4 - Mentors
... the Commonwealth support a national program to develop and provide local mentors for Indigenous youth at risk before, during and after custody.

R5 – Sport and recreation
... the Commonwealth -
• work with state and territory governments to support more sporting, music and other recreational activities for Indigenous children and youth outside of school hours, particularly in remote and regional areas
• encourage sporting bodies and sporting celebrities to become more involved in organising sporting engagement for Indigenous children and youth
• ensure continued funding for sports partnership programs and the provision of infrastructure and services to ensure sports participation by Indigenous youth, and
• investigate and address impediments to sports participation for Indigenous young men and women.
R6 – Identification documents
... the Commonwealth -
• investigate options to make the birth registration process more culturally appropriate and accessible in Indigenous communities
• investigate how to raise awareness of the utility and value of the birth certificate document in Indigenous communities
• address reasons for the low rate of birth registrations in Indigenous communities and ensure that Indigenous health services and youth workers are actively working to ensure that births are registered and that all Indigenous children have a birth certificate, and
• liaise with state and territory governments to coordinate assistance to all youth to ensure they have access to their birth certificate and that this is not an impediment to them fully participating in community, travel, education, or employment opportunities.
R7 - Accommodation
... that the Commonwealth commit to ensuring that there exists within all states and territories an expanded number and range of safe and gender-appropriate accommodation options for Indigenous children and youth. These should include access to coordinated and holistic intensive care services. A housing or accommodation plan needs to have been identified for every youth leaving detention. The range of appropriate accommodation options should include extended family houses, identified safe houses, hostel and school accommodation, foster and respite care, and emergency refuge accommodation.

R8 – Alcohol and substance abuse
... that, in collaboration with state and territory governments, the Commonwealth increase funding for locally based alcohol, anti-smoking and substance abuse programs.

R9 – Foetal Alcohol Spectrum Disorder
... that the Commonwealth urgently addresses the high incidence of Foetal Alcohol Spectrum Disorder in Indigenous communities by:
• developing and implementing Foetal Alcohol Spectrum Disorder diagnostic tools and therapies, with a focus on working in partnership with Indigenous health organisations in remote and regional Australia where there is a recognised prevalence of the disorders, and
• recognising Foetal Alcohol Spectrum Disorder as a registered disability and as a condition eligible for support services in the health and education systems.
The Committee further considers that a comprehensive inquiry into Foetal Alcohol Spectrum Disorder prevalence, diagnosis, intervention and prevention is required and recommends that the Minister for Health & Ageing refer the inquiry to the House of Representatives Standing Committee on Social Policy & Legal Affairs.

R10 – Mental health
... the Commonwealth recognise mental health as a significant issue affecting Indigenous youth and collaborate with the states and territories to direct funding where possible to successful Indigenous community developed and led programs with a focus on healing, culture, emotional wellbeing and reconnection with family.

R11 – Hearing tests
... that the Commonwealth provide all Indigenous children starting pre-school with comprehensive hearing tests with appropriate follow-up support when required. The Committee further recommends that all Indigenous children between kindergarten and Year 2 be tested as an urgent priority due to the high incidence and impacts of hearing impairments amongst Indigenous children, particularly in rural and remote areas.

R12 – Sound amplification systems
...that the Commonwealth allocate funding for sound amplification systems in schools with high Indigenous enrolments throughout Australia, with urgent attention to schools in remote areas.

R13 – Police training to identify hearing loss
... that the Attorney-General take to the Ministerial Council for Police & Emergency Management – Police (MCPEMP) at its second meeting in 2011, a proposed program of training for police to better identify and respond to individuals with hearing loss, particularly in Indigenous communities.

R14 – Pre-natal and anti-natal support
...the Commonwealth work with state and territory governments to coordinate greater capacity for Indigenous health services to provide further programs to support -
• sexual and reproductive health counselling and services
• pre and anti-natal care and advice for teenage parents
• parenting skills information and assistance
• alcohol risk awareness during pregnancy, and
• support for pregnant women with alcohol dependency or other substance abuse.
R15 - Health
... that the Commonwealth in collaboration with state and territory governments, ensure all Indigenous youth who enter the criminal justice system are provided with:
• comprehensive health screening, including for Foetal Alcohol Spectrum Disorders
• access to intensive holistic intervention programs which involve family, mentors and Indigenous leaders and include support for mental health, hearing loss and drug and alcohol reform, and
• access to wellbeing programs which involve families and Indigenous leaders, address underlying issues of trauma, low self-esteem and build resilience and the capacity for positive social and workplace engagement.
Emotional, social and cultural programs should span the length of a youth’s time in detention, and continue after release.

R16 – School and community relationships
... that the Minister for Education work through the Ministerial Council on Education, Employment, Training & Youth Affairs assist schools throughout Australia to deliver better education outcomes for Indigenous students and to foster more connected and positive relationships with their local Indigenous community. The Committee considers that as a minimum schools should be incorporating a range of the following activities within the school:
• hang or fly an Aboriginal Flag and the Torres Strait Islander flag alongside the Australian flag within the school grounds
• learn about Indigenous sites of significance in the local area
• incorporate an acknowledgment of country at the start of significant events as well as at school assemblies
• commission local Indigenous artists to paint a mural, or build or create sculptures within the school grounds
• use local Indigenous languages names for school classrooms or sporting houses/teams
• build an Indigenous garden and invite those with bush tucker knowledge to be involved
• celebrate Mabo day, NAIDOC week, Reconciliation week and Harmony day
• engage Indigenous school mentors for schools with high Indigenous populations, and/or
• engage the local Indigenous community to teach language and culture afterschool and provide extra curricula activities.
R17 – School attendance data
... that the Minister of Education immediately conduct a review into how daily school attendance and retention rates are measured to ensure that data collected can accurately inform strategies to increase attendance and retention rates and monitor progress in these areas.

R18 – School attendance incentive programs
... that the Commonwealth commit to the provision of funds and administrative assistance to establish and expand across Indigenous communities the number of school attendance incentive programs (such as breakfast and lunch programs, and sporting and cultural activities during and after school).

R19 – Teacher development
... that the Minister for Education work with the Ministerial Council on Education, Employment, Training & Youth Affairs develop a comprehensive and mandatory teachers’ professional development program that:
• provides specialist training on teaching Indigenous children, and where necessary the teaching of English as a second language (ESL)
• recognises poor English language skills and health and hearing issues which may impact on learning
• gives teachers a competency in cultural knowledge and sensitivity to assist in working with Indigenous communities and families
• can be adapted to reflect local Indigenous community needs and culture, and
• trains the teachers to set and achieve high expectations for Indigenous students.
The Committee also recommends that a portion of the 2011-12 Budget funds allocated to reward top performing teachers is directed towards the formal recognition of outstanding performance in the teaching of Indigenous students, where real outcomes in progress can be demonstrated.

R20 - Apprenticeships
... that the Department of Education, Employment & Workplace Relations provide greater assistance and incentives to increase the uptake of Indigenous apprentices through:
• providing specific financial incentives for employers to take on Indigenous apprentices
• including Indigeneity as one of the eligibility criteria for the Australian Apprenticeship Access Program, and
• ensuring that the Australian Apprenticeship Access Program contract providers are able to demonstrate the ability to provide culturally appropriate support and successful outcomes for Indigenous job seekers.
R21 – Driver licences
... that the Minister for Infrastructure & Transport, in partnership with relevant state and territory governments, establish:
• specific learner driver resources in multiple media formats that appropriately meet language and literacy needs of local Indigenous communities, and
• a remote and regional learner driver licensing scheme to assist people in remote and regional areas to obtain learner and provisional licences.
R22 – Defence Force recruitment
... that the Australian Defence Force [ADF]:
• include in its training material an acknowledgement of the important contribution Indigenous people have made to the ADF in past wars. All staff currently employed by the ADF should be made aware of this contribution
• review its recruitment material to ensure it provides strong encouragement for Indigenous people to join, which particular reference to existing role models, for example NorForce
• consider new and innovative strategies for raising its profile with Indigenous people and for recruiting both reserves and permanent members from remote, regional and metropolitan Indigenous communities
• offer work experience for older students in the defence force, and
• increase the provision of school based apprenticeships throughout Australia and target apprenticeships to Indigenous youth in regional and remote areas.
R23 – Police training and Indigenous employment
... that the Commonwealth work with the Ministerial Council for the Administration of Justice to address the following priorities at its next meeting -
• development of a national framework for the provision of comprehensive Indigenous cultural awareness training for all police employees that:
• Promotes better understanding and relations between police and Indigenous communities;
• Addresses the specific circumstances of Indigenous youth over-representation in police contact, and;
• Outlines the diversionary options that are available, and the positive impact that diversion can have.
• An expanded national network of Indigenous Liaison Officers, with facilities to share information and knowledge across jurisdictions, and
• Incentives to increase the employment of Indigenous police men and women and opportunities for mentoring and police work experience for Indigenous students.
R24 – Court interpreter service and hearing assistance
... the Commonwealth present to SCAG a revision of criminal justice guidelines to include formal recognition of the requirement to ascertain the need for an interpreter service or hearing assistance when dealing with Indigenous Australians.

R25 – National interpreter service
... that the Commonwealth Attorney-General’s Department, in partnership with state and territory governments, establish and fund a national Indigenous interpreter service that includes a dedicated criminal justice resource and is suitably resourced to service remote areas. The Committee recommends that initial services are introduced in targeted areas of need by 2012 with full services nationwide by 2015.

R26 – Legal services funding
... that the Commonwealth increase funding for Aboriginal & Torres Strait Islander Legal Services to achieve parity per case load with Legal Aid Commission funding in the 2012-13 Federal Budget, with appropriate loadings to cover additional costs in service delivery to regional and remote areas.

R27 – Post-release accommodation
... that the Attorney-General take to SCAG the proposal to increase funding for appropriate accommodation options for youth who are granted bail, in order to prevent the unnecessary detention of Indigenous youth.

R28 – Study on sentencing options
... that the Australian Institute of Criminology [AIC] undertake an analysis of sentencing options and outcomes for Indigenous youth and young adults and the use of available diversionary options to determine whether alternative sentencing options are fully utilised before resorting to incarceration.

R29 – Alternative sentencing options
... that the Attorney-General evaluate outcomes for alternative sentencing options, such as reduced recidivism and improved positive and independent living, and from this research develop a proposal for a range of Indigenous alternative sentencing options and present it to SCAG for inclusion in the National Indigenous Law & Justice Framework.

R30 – Pre-court conferencing
... that the Attorney-General takes to SCAG the proposal for a nationwide program that begins the rehabilitation process of young Indigenous offenders from the point at which they are charged with an offence. The Committee recommends that such a program should include:
• Assigning a community services case worker to an individual immediately after they have been charged to organise a family conference
• A victim contact meeting where the offender hears the consequences and impacts of their unlawful actions on the victim
• Ascertaining, through family conferencing, any underlying problems that are influencing offending behaviour and setting out a plan for behavioural change with clear targets to be achieved prior to attending court. Pre-court plans for the youth could include:
• Regular attendance at drug and alcohol counselling and medical treatment as required;
• Regular meetings or counselling sessions with a court approved community or family mentor or elder;
• A genuine apology to the victim(s); • The development of clear goals and aspirations for living a more productive and independent life;
• Where appropriate, more regular and constructive family engagement;
• A renewed commitment from significant family members to engage with the offender and involve them positively in family life;
• Improvement in school attendance or retention in school, and;
• Improvement in apprenticeship or training outcomes.
Sentencing of individuals who have engaged with this program should take into account any genuine progress towards meeting these targets for behavioural modification.
R31 – Indigenous offender programs
... that the Commonwealth establish a new pool of adequate and long term funding for young Indigenous offender programs. Organisations and community groups should be able to apply for funding for programs that assist young Indigenous offenders with:
• Post-release or diversionary program accommodation
• reintegrating into the community and positive social engagement through volunteering and team involvement
• reconnecting with culture where possible
• drug, alcohol and other substance abuse rehabilitation
• continued education and training or employment, and
• life and work readiness skills, including literacy and numeracy
The Committee recommends that this fund is geared towards small-scale community-based groups, operating in local areas, and includes a specific stream for programs that address the needs of young Indigenous female offenders. Local employers would be encouraged to mentor and train with a view to employment.

R32 – Evaluate Indigenous justice programs
... that the Commonwealth commit further resources to evaluate the effectiveness of Indigenous youth justice and diversion programs and that the findings be published on the Indigenous Justice Clearinghouse and the Closing the Gap Clearinghouse websites.

R33 – Mapping offending
... that the Commonwealth invest in mapping research to identify areas of concentrated youth offending, types of offending and gaps in services, with a focus on Indigenous disadvantage and need.

R34 – Expanding data collections
... that the Australian Bureau of Statistics expand its collection of data to include:
• offender data disaggregated by all jurisdictions and all categories of offence, including traffic and vehicle related offences
• court appearance data, disaggregated by all jurisdictions by Indigenous status, sex, offence and sentence
• prisoner reception data disaggregated by all jurisdictions, according to Indigenous status, sex, offence, age, sentence length and episodes of prior offending by category of offence, and
• data on the rates of which Indigenous people are victims of crime, disaggregated by all jurisdictions and all categories of offence.
The Committee recommends that the Australian Institute of Health & Welfare expands its collection of data to include detainee receptions and census data disaggregated by jurisdiction, Indigenous status, sex, offence, age, sentence duration and periods of prior offending by category of offence. The Committee recommends that these expanded data sets are made available by no later than June 2012. This data and any trends it shows should then be annually evaluated and reported on and used to inform future policy or program changes.

R35 – Study on the imprisonment of women
... that the AIC undertakes a study of the reasons for the increasing imprisonment of Indigenous women, with a view to informing policymakers on how best to address the key drivers of offending and imprisonment and the consequences of that imprisonment for women, their children (if any) and their community.

R36 – Indigenous Law and Justice Advisory Body
... that the Commonwealth propose to the National Congress of Australia’s First Peoples the establishment of a subcommittee to focus on Indigenous law and justice matters. If the National Congress does not proceed with an Indigenous law and justice subcommittee, the Committee recommends that the Commonwealth establish an Indigenous law and justice advisory body. The Committee recommends that the Commonwealth:
• seeks the subcommittee’s or the advisory committee’s advice on law and justice matters affecting Indigenous people
• requests that the subcommittee or advisory committee monitor and report on progress under the National Indigenous Law & Justice Framework, and
• seeks the views of the subcommittee or advisory committee on any suggested amendments to the National Indigenous Law & Justice Framework following each annual review.
R37 – Parliamentary Indigenous representation
... that the Commonwealth establish an Independent Commission to undertake a series of public consultations and investigate options to increase Indigenous representation in the Parliament, for example, quotas or dedicated seats.

R38 – Funding of the Family Responsibilities Commission
... that the Commonwealth in partnership with the Queensland Government and the Cape York Institute for Policy & Leadership extend the funding of the Family Responsibility Commission until December 2013, pending further evaluation.

R39 – Sustained flexible funding
... that the Commonwealth work with state and territory governments to coordinate sustained and flexible funding support for a range of youth justice diversion and rehabilitation services which are developed with and supported by local Indigenous communities.

R40 – Justice reinvestment
The Committee supports the principles of justice reinvestment and recommends that governments focus their efforts on early intervention and diversionary programs and that further research be conducted to investigate the justice reinvestment approach in Australia
No reference, fortunately, to a magic bullet in the form of the national chaplaincy program, with Williams v. Commonwealth of Australia & Ors (noted earlier this year) scheduled for hearing before the Full Bench of the High Court over 9, 10 & 11 August .