COPYRIGHT AND USE OF THIS THESIS This thesis must be used in accordance with the provisions of the Copyright Act 1968. Reproduction of material protected by copyright may be an infringement of copyright and copyright owners may be entitled to take legal action against persons who infringe their copyright. Section 51 (2) of the Copyright Act permits an authorized officer of a university library or archives to provide a copy (by communication or otherwise) of an unpublished thesis kept in the library or archives, to a person who satisfies the authorized officer that he or she requires the reproduction for the purposes of research or study. The Copyright Act grants the creator of a work a number of moral rights, specifically the right of attribution, the right against false attribution and the right of integrity. You may infringe the author’s moral rights if you: - fail to acknowledge the author of this thesis if you quote sections from the work - attribute this thesis to another author - subject this thesis to derogatory treatment which may prejudice the author’s reputation For further information contact the University’s Director of Copyright Services sydney.edu.au/copyright ‘When the stars align’: decision-making in the NSW juvenile justice system 1990-2005 Elaine Fishwick A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Faculty of Education and Social Work University of Sydney 2015 Faculty of Education and Social Work Office of Doctoral Studies AUTHOR’S DECLARATION This is to certify that: I. this thesis comprises only my original work towards the <insert Name of Degree> Degree II. due acknowledgement has been made in the text to all other material used III. the thesis does not exceed the word length for this degree. IV. no part of this work has been used for the award of another degree. V. this thesis meets the University of Sydney’s Human Research Ethics Committee (HREC) requirements for the conduct of research. Signature(s): Name: Elaine Fishwick Date: April 2015 i Abstract Abstract This thesis examines decision-making in the New South Wales juvenile justice system. It investigates what factors and which people influenced the setting of policy agendas and the choice of policy options during the period 1990 – 2005. Using data from in-depth interviews with key policy actors and from documentary analysis, it aims to identify the dynamic interplay of historical, institutional, legal, professional, pragmatic and political factors within wider economic, social and public policy contexts to explore how and why juvenile justice policy developed in the way that it did during this period. The time frame for the study begins with the publication of the report Kids In Justice: A Blueprint for the Nineties by the NSW Youth Justice Coalition, and continues to 2005, a year marked by the publication of the NSW Law Reform Commission’s Report on Young Offenders, public street disturbances in suburbs of Sydney and the resignation of the Labor Premier the Hon. Bob Carr on August 6th. This time frame is significant as it epitomizes what appears to be a gradual, although not complete shift in approaches to juvenile justice policy: from the promise of potentially progressive diversionary strategies envisaged in the Kids in Justice Report to an approach which increasingly appeared to be concerned with control and punishment and with appeasing media demands. The thesis is a trans disciplinary study. It draws on insights from law; policy studies, media studies and criminology, and pulls them together to develop a unique analytical approach to juvenile justice. It adopts a blended theoretical perspective by combining key elements of critical social sciences with complexity theory together, in an approach, which has been termed by Byrne (1998, 2011) as ‘complex realism’ and by Carroll (2009) as ‘critical complexity’. The thesis concludes that decision takes place within an historically contingent context of what can be termed ‘negotiated order’. There are elements of certainty in the decision-making process but it is also characterised by serendipity and change. Policy processes are dynamic and change can be at times minimal and incremental and at other times monumental. It is argued that people and their ambitions, ii Abstract emotions, skills and experiences are absolutely fundamental to any understanding of policy and this thesis emphasises their role in decision-making. It is anticipated that the insights gathered from looking at this moment in the history of juvenile justice and the influences on decision-making will not only contribute to a more detailed understanding of the policy process in criminology and related disciplines, but might also provide those engaged in advocacy and reform with some tools for even more effective action. iii Table of Contents Abstract ii Acknowledgments viii Chapter 1. Introduction 1 1.1 Overview 1 1.2 Background 2 1.3 Gaps in understanding 5 1.4 A trans disciplinary approach 8 1.5 Theoretical perspectives and methodology 10 1.6 Research design 17 1.7 Juvenile justice or youth justice, system or process? 18 1.8 Thesis Structure 20 Chapter 2. Understanding the policy process 22 2.1 Introduction 22 2.2 Defining policy 22 2.3 The policy process: opportunities for decision-making 24 2.4 Policy streams, agendas and alternatives 26 2.5 Policy decisions in a complex system 30 2.6 Concluding remarks: a complex dynamic policy approach 42 Chapter 3. Understanding juvenile/youth justice: models, discourses, strategies and rationales 44 3.1 Introduction 44 3.2 Models and governmentality 45 3.3 Welfare, justice and punishment 49 3.4 Corporatism – the ‘third model of juvenile justice’ 54 3.5 Radical critiques: A focus on the agents of social control 55 3.6 Risk management, actuarial justice and responsibilisation 58 3.7 Risk pre-crime, security and contractualism 60 3.8 Restorative justice 62 3.9 Human rights 64 3.10 A neo-colonial perspective 65 3.11 Conclusions 68 Chapter 4. The media and the policy process 71 4.1 Introduction 71 4.2 Defining media 72 4.3 The role of the media from a policy perspective 72 4.4 Media and policy in sociology and criminology 73 4.5 Media as a contested political and policy domain 82 4.6 A symbiotic relationship 83 4.7 Media management 84 4.8 Inside the media: setting the news and policy agendas 89 iv Contents 4.9 Concluding remarks 90 Chapter 5. The research 92 5.1 Introduction 92 5.2 Critical complexity and research 92 5.3 Research aims and questions 94 5.4 The research strategy 95 5.5 Research methods 96 5.6 Data collection and analysis 100 5.7 Ethical considerations 112 5.8 Concluding remarks 114 Chapter 6. A tale of two policy streams 115 6.1 Introduction 115 6.2 Historical context 116 6.3 The early impact of the Kids in Justice Report 120 6.4 Government initiatives 123 6.5 Bipartisan support for diversion and rights 130 6.6 Beyond the YOA 133 6.7 Whatever happened to human rights? 146 6.8 Discussion 147 Chapter 7. Knowledge, evidence and decision- making 149 7.1 Introduction 149 7.2 Setting the scene: patterns of NSW juvenile crime 1990 - 2005 150 7.3 Deliberative decision-making 153 7.4 Research and evidence and the public service 163 7.5 Academic research and writing 172 7.6 Research & evidence as a moderating influence 173 7.7 Discussion 174 Chapter 8. ‘In the court of Carr’: media, politics and policy 177 8.1 Introduction 177 8.2 NSW a PR state? 178 8.3 Shock jocks and tabloids 187 8.4 A journalist’s perspective 191 8.5 The public service and the media 192 8.6 Framing youth and crime in the news 195 8.7 Leaks to the media 197 8.8 Selling policies and politicians at elections 199 8.9 Playing the game: non-government organisations and media 202 8.10 Discussion 204 Chapter 9. The rules of the game: government, politics, administration and the work of non-government organisations 207 9.1 Introduction 207 9.2 Politics and governments 208 9.3 The electoral cycle 210 v Contents 9.4 The distinctions of politics and administration 212 9.5 Budgets, funding, resources 215 9.6 The administration of the Juvenile Justice Department 216 9.7 The police – gatekeepers and lobbyists 222 9.8 Investing in training and education to influence outcomes 226 9.9 Courts/Judicial officers 228 9.10. Networking and lobbying: the world of non-government organisations 229 9.11 Discussion 234 Chapter 10. Individuals, emotions and relationships 236 10.1 Introduction 236 10.2 Subjectivity and decision-making 237 10.3 Limits on decision-making 238 10.4 Individuals 238 10.5 Charisma, seniority and the NSW Police 253 10.6 Individual entrepreneurs and the non-government sector 257 10.7 Dynamics of individuals working together 260 10.8 Creating opportunities: ensuring serendipity happens 261 10.9 Discussion 262 Chapter 11. …when the stars align 264 11.1 Overview 264 11.2 Key chapter findings 265 11.3 Critical complexity, policy and decision-making 270 11.4 Implications for advocacy 271 11.5 Concluding thoughts 276 References 278 Appendices 307 Appendix 1: List of key legislative reforms 308 Appendix 2: Interview Guide 309 Appendix 3: Original permission letter from Sydney University Human Research Ethics Committee to proceed with research 312 Appendix 4: Participant information sheet 314 Appendix 5: Participant Consent Form 316 Appendix 6: Details of the Children’s Court Proceedings Act (NSW) 1987 318 Appendix 7: History of Kariong Detention Centre and administrative transfer to Adult Corrective Services 320 vi Dedication This thesis is dedicated to my mum Betty Fishwick and to the memory of my dad Frank Fishwick.