volume 40 number 4 december 2018 the sydney law review articles Non-State Policing, Legal Pluralism and the Mundane Governance of “Crime” – Amanda Porter 445 The Liability of Australian Online Intermediaries – Kylie Pappalardo and Nicolas Suzor 469 Adolescent Family Violence: What is the Role for Legal Responses? – Heather Douglas and Tamara Walsh 499 Contracts against Public Policy: Contracts for Meretricious Sexual Services – Angus Macauley 527 before the high court Australian Securities and Investments Commission v Kobelt: Evaluating Statutory Unconscionability in the Cultural Context of an Indigenous Community – Sharmin Tania and Rachel Yates 557 corrigendum 571 EDITORIAL BOARD Elisa Arcioni (Editor) Celeste Black (Editor) Tanya Mitchell Emily Crawford Joellen Riley John Eldridge Wojciech Sadurski Emily Hammond Michael Sevel Sheelagh McCracken Cameron Stewart STUDENT EDITORIAL COMMITTEE Angus Brown Tim Morgan Courtney Raad Book Review Editor: John Eldridge Before the High Court Editor: Emily Hammond Publishing Manager: Cate Stewart Correspondence should be addressed to: Sydney Law Review Law Publishing Unit Sydney Law School Building F10, Eastern Avenue UNIVERSITY OF SYDNEY NSW 2006 AUSTRALIA Email: [email protected] Website and submissions: <https://sydney.edu.au/law/our-research/ publications/sydney-law-review.html> For subscriptions outside North America: <http://sydney.edu.au/sup/> For subscriptions in North America, contact Gaunt: [email protected] The Sydney Law Review is a refereed journal. © 2018 Sydney Law Review and authors. ISSN 0082–0512 (PRINT) ISSN 1444–9528 (ONLINE) Non-State Policing, Legal Pluralism and the Mundane Governance of “Crime” Amanda Porter Abstract Faced with the problem of rising incarceration rates, there has been an emerging discourse in recent years about the need to decolonise justice for Indigenous Australians. While much has been written on the need to embrace initiatives that reflect the Indigenous collective right to self-determination and self-governance, there has been little grounded examination of the everyday politics surrounding these processes. For example, what does self-determination look like in the criminal justice context? What forms of non-State governance constitute self- governance? What activities are considered ‘harmful’, ‘unsafe’ and ‘criminal’ behaviour within local settings, and who ultimately gets to decide what constitutes a ‘crime’? To examine these and related issues, this article presents the findings of an empirical study on Indigenous night patrols: locally-run justice initiatives with formal agendas that focus on improving safety within Aboriginal and Torres Strait Islander communities. This article examines the historic development and contemporary operation of this relatively neglected form of non-State policing. It argues for a greater appreciation of both the diversity and complexity of non-State governance structures in contemporary Australia, as well as how they might contribute to better understandings of self-determination and legal pluralism in the criminal justice context. I Introduction Policing is a political activity. This is especially true with respect to the policing of Aboriginal and Torres Strait Islander communities, where the State police represent gatekeepers of the criminal justice system — one of the most enduring and deeply entrenched legacies of British colonisation. This is true also where the routine activities of the State police occur in the absence of a formal treaty with Indigenous Australians, notwithstanding the legally pluralistic nature of contemporary Australian society.1 Unlike comparable Commonwealth colonies, Australia was not Scientia Fellow, Faculty of Law, University of New South Wales, Sydney, Australia. The author would like to thank the two anonymous peer reviewers as well as the Sydney Law Review Editors and Law Publishing Manager for their detailed feedback and suggestions. Finally, and most importantly, the author is indebted to the patrol workers, community leaders and Elders who generously participated in this study and who are the true experts on this topic. 1 Indigenous legal systems have been operating in Australia for 40 000 years and continue to operate in many locations across Australia, coexisting alongside the mainstream Australian legal system. While, in some cases, knowledge of local laws and customs has weakened or ruptured due to forced removal from country and family, the operation of local legal systems remains an integral part of © 2018 Sydney Law Review and author. 446 SYDNEY LAW REVIEW [VOL 40:445 settled by formal cession, but under the doctrine of terra nullius — a doctrine that has been acknowledged by the High Court of Australia, the highest court of the non- Indigenous legal system, as a legal fiction.2 These contradictions and unresolved tensions in Australia’s history have consequences that go to the core of politics surrounding the everyday policing of Indigenous Australian communities. The history of colonial policing in Australia is now well documented, mapping out regimes that have largely consisted of efforts to contain, suppress and even attempt genocide upon Aboriginal and Torres Strait Islander peoples.3 In addition to frontier violence and paternalistic violence present in colonial forms of policing, neo-colonial violence continues today through expansions in police powers of arrest, over-surveillance, harassment, heavy-handed policing, under-policing of domestic and family violence, deaths in custody, and so on, as documented in various national reports.4 Over 25 years after the publication of the Royal Commission into Aboriginal Deaths in Custody, rates of incarceration for Indigenous Australians continue to rise5 and deaths continue to occur in circumstances that are everyday life in Aboriginal and Torres Strait Islander communities. See generally Australian Law Reform Commission (‘ALRC’), The Recognition of Aboriginal Customary Laws, Report No 31 (1986); Law Reform Commission of Western Australia (‘WA’), Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture, Final Report, Project No 94 (2006). Importantly, however, processes of nation (re)building, language revival and Indigenous resurgence are taking place across Aboriginal Australia: see generally D E Smith, ‘Researching Australian Indigenous Governance: A Methodological and Conceptual Framework’ (Working Paper No 29/2005, Centre for Aboriginal Economic Policy Research, October 2005); Janet Hunt et al (eds), Contested Governance: Culture, Power and Institutions in Indigenous Australia (ANU Press, 2008); Michael Dodson and Lisa Strelein, ‘Australia’s Nation Building: Renegotiating the Relationship between Indigenous Peoples and the State’ (2001) 24(3) University of New South Wales Law Journal 826; Larissa Behrendt, Miriam Jorgensen and Alison Vivian, Rebuilding Australia’s First Nations (Federation Press, forthcoming); Alison Vivian et al (2017) ‘Indigenous Self-Government in the Australian Federation’ 20 Australian Indigenous Law Review 215; Alexander Reilly, ‘A Constitutional Framework for Indigenous Governance’ (2006) 28(3) Sydney Law Review 403. Notwithstanding the reality of Aboriginal sovereignty, currently the Australian legal system affords recognition to the operation of Indigenous laws in extremely narrow circumstances; namely, in the context of native title, as a mitigating factor in sentencing and with respect to Torres Strait Islander traditional adoption: see generally Mabo v Queensland (No 2) (1992) 175 CLR 1. 2 Mabo v Queensland (No 2) (1992) 175 CLR 1. 3 See, eg, Mark Finnane, Police and Government: Histories of Policing in Australia (Oxford University Press, 1994); Jonathan Richards, The Secret War: A True History Of Queensland's Native Police (University of Queensland Press, 2008); Henry Reynolds, Frontier: Aborigines, Settlers and Land (Allen & Unwin, 1987); A Dirk Moses (ed), Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (Berghahn Books, 2004); Amanda Nettlebeck and Robert Foster, In the Name of the Law: William Willshire and the Policing of the Australian Frontier (Wakefield Press, 2007); Chris Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (Allen & Unwin, 2001); Harry Blagg, Crime, Aboriginality and the Decolonisaiton of Justice (Hawkins Press, 2008). 4 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991); Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (Australian Government Publishing Service, 1991); Boni Robertson, The Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report (Department of Aboriginal and Torres Strait Islander Policy and Development (Qld), 1999). 5 Research from the ALRC and NSW Bureau of Crime Statistics and Research suggests that the rate of Indigenous imprisonment is rising: see, eg, ALRC, Pathways to Justice — Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Report No 133 (2018); Margaret White and Mick Gooda, Report of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2017); Australian Institute of Health and Welfare, Family, 2018] NON-STATE POLICING, LEGAL PLURALISM AND CRIME 447 otherwise preventable.6 The publication of a recent suite of inquiries and royal commissions into Indigenous incarceration and detention