Proceedings of the 2nd Australian & New Zealand Critical Criminology Conference 19 - 20 June 2008 Sydney, Australia Presented by the Crime & Justice Research Network and the Australian and New Zealand Critical Criminology Network Edited by Chris Cunneen & Michael Salter Published by The Crime and Justice research Newtork University of New South Wales December, 2008 http://www.cjrn.unsw.edu.au National Library of Australia Cataloguing‐in‐Publication data Proceedings of the 2008 Critical Criminology Conference [electronic resource]: conducted by the Crime and Justice Research Network and the Australian and New Zealand Critical Criminology Network / editors Chris Cunneen, Michael Salter. ISBN: 9780646507378 (pdf) Subjects: Criminology‐‐Congresses. Authors/Contributors: Cunneen, Chris. Salter, Michael. University of New South Wales. Crime and Justice Research Network. Australia and New Zealand Critical Criminology Network. Dewey Number: 364 TABLE OF CONTENTS FORWARD 1 CHRIS CUNNEEN MICHAEL SALTER LATE‐MODERN DEVELOPMENTS IN SENTENCING PRINCIPLES FOR INDIGENOUS OFFENDERS: BEYOND DAVID GARLAND’S FRAMEWORK 2 THALIA ANTHONY A CRITICAL PERSPECTIVE ON MENTAL HEALTH DISORDERS AND COGNITIVE DISABILITY IN THE CRIMINAL JUSTICE SYSTEM 30 EILEEN BALDRY, LEANNE DOWSE, PHILLIP SNOYMAN, MELISSA CLARENCE AND IAN WEBSTER WOMEN‐CENTRED CORRECTIONS: A NAIVE VIEW 46 LILLIAN M. BARRY THE EFFECT OF TERRORISM AND TERRORIST TRIALS ON AUSTRALIAN PRISON REGIMES 61 DAVID BROWN ISOLATION AS COUNTER‐INSURGENCY: SUPERMAX PRISONS AND THE WAR ON TERROR 77 BREE CARLTON COLONIAL GENOCIDE AND STATE CRIME 91 MICHAEL GREWCOCK EXTREME TRANSPORT: CUSTODIAL TRANSPORT IN WESTERN AUSTRALIA & BEYOND 107 CLIFF HOLDOM USING A FLASHPOINTS MODEL OF PUBLIC ORDER POLICING IN INDIGENOUS COMMUNITIES TO EXPLORE THE STRUCTURES AND PRACTICES OF INTERNAL COLONIAL POWER RELATIONS IN AUSTRALIA 124 CHRISTINE JENNETT VICTIMS AS SURVIVORS 141 JAN JORDAN THE GROWTH OF VICTIM AGENCY IN AUSTRALIAN JURISPRUDENCE: LIMITATIONS AND CHALLENGES 159 TYRONE KIRCHENGAST THE RISE OF A GLOBAL CARCERAL COMPLEX: FROM GARRISON STATE TO GARRISON PLANET 184 JUDE MCCULLOCH FROM CARE TO CRIME – CHILDREN IN STATE CARE AND THE DEVELOPMENT OF CRIMINALITY 207 KATHERINE MCFARLANE WOMEN’S BODIES, MORAL PANIC AND THE WORLD GAME: SEX TRAFFICKING, THE 2006 FOOTBALL WORLD CUP AND BEYOND 222 SANJA MILIVOJEVIC ORGANISED ABUSE AND THE POLITICS OF DISBELIEF 243 MICHAEL SALTER EXPLORING THE GROUP‐IDENTITY FUNCTION OF CRIMINAL LAW 285 MOLLY TOWNES O’BRIEN LOSING THE WAR ON DRUGS: PROHIBITION AND PROLIFERATION 311 MARGARET PEREIRA TRAFFICKING IN PERSONS AS LABOUR EXPLOITATION 322 MARIE SEGRAVE STUNNING DEVELOPMENTS : SOME IMPLICATIONS OF TASERS IN AUSTRALIA 341 EMMA RYAN PRISONERS, WORK AND RECIPROCAL REINTEGRATION 361 ROB WHITE AND GARRY COVENTRY RESEARCHING CCTV: SECURITY NETWORKS AND THE TRANSFORMATION OF PUBLIC SPACE 383 DEAN WILSON 1 Forward We are pleased to present the refereed proceedings of the 2008 Critical Criminology Conference on behalf of the Crime and Justice Research Network and the Australia and New Zealand Critical Criminology Network. These proceedings showcase the diverse criminological viewpoints presented at the conference this year. Forty five papers were delivered across two days by researchers from Australia and overseas, with over one hundred and fifty academics, policy‐makers and students in attendance. The 2008 conference was the second Critical Criminology conference. The proceedings of the first conference held at Sydney Law School is 2007 are currently published by Federation Press as “The Critical Criminology Reader”, edited by Chris Cunneen and Thalia Anthony. The annual conference is emerging as the key forum for critical criminology in the Australasian region We would like to thank the contributors to this collection and to acknowledge the referees who gave up their time to review these papers, including: Alex Steele, Gary Coventry, Eileen Baldry, Bree Carlton, David Brown, Sharon Pickering, Michael Grewcock, Julie Stubbs, Rob White, Jan Jordon, Caitlin Hughes and Jude McCulloch. Chris Cunneen Michael Salter Faculty of Law University of New South Wales Sydney 2 Late‐modern developments in Sentencing Principles for Indigenous Offenders: beyond David Garland’s framework Thalia Anthony Faculty of Law University of Sydney [email protected] This paper explores the late‐modern shifts in the characterisation of Indigenous offenders in sentencing judgments and legislation in New South Wales (NSW) and the Northern Territory (NT). It considers whether David Garland’s (2001) thesis (developed in relation to the United Kingdom and the United States) applies to judicial and political conceptualisations of Indigenous offenders. Garland identifies of a shift in criminal justice conceptualisations from ‘penal welfarism’ in the Post‐ WWII period – when offenders are contextualised in social relations – to ‘law and order’ in late modernity (1970s) – when offenders are decontextualised. This paper will argue that Garland’s framework does not fully explain rationalities in sentencing offenders in Indigenous communities. While judicial discourses in sentencing Indigenous offenders resonate with Garland’s observations about the re‐ emergence of emphasis on the victim’s interest, retribution and protection of the wider community protection, it does not account for a changing view about the functionality of Indigenous communities. A post‐colonial narrative of sentencing in ‘late modernity’ in the NT and NSW identifies the ongoing contextualisation of Indigenous offenders. However, this context is a dysfunctional community. The community is both condemned and in need of rescue, particularly through a bolder assertion of post‐colonial crime control. The scapegoat in these rescue efforts is the Indigenous offender. 3 Garland’s Culture of Control and the control Australian Indigenous culture In the Culture of Control, Garland (2001) claimed that in the post‐WWII period, offenders were conceived of and treated as products of social relationships. They were capable of reform and rehabilitation. In the 1970s, armed with a ‘nothing works’ attitude to penal‐welfarism as well as the broader welfare state, politicians, and eventually judges, began to view the offender as morally corrupt and beyond repair (also see: Melossi 2000). Punitive urges were given freer reign in public discourses on crime control, offenders were condemned and harsher sentences were handed down. Garland’s thesis that a ‘law and order’ discourse emerged in late‐modern policies is silent on crime policies as they relate to Indigenous people or racial minorities. In the Culture of Control, which compares the United Kingdom and the United States, the only mention of race is that the situation for ethnic minorities is worse because they are part of an ‘excluded underclass’ that has been intensively targeted by law enforcers in ‘late modernity’ (Garland 2001). Doubts have been raised about whether Australian Indigenous offenders experienced post‐War penal‐welfarism (Hogg 2001; Broadhurst 1987). Assimilation policies reigned in the Australian post‐War World II context. Indigenous people were decontextualised from their communities and aligned with the expectations of the non‐Indigenous community. Enforcement of Indigenous assimilation policies was far from liberal; there was forced unpaid labour, forced removal of children from their Indigenous families and restrictions on movement, marriage and the practice of culture (ALRC 1986). Nonetheless, as the protectionist aspects of assimilation policies withered away in the 1960s, and the liberal aspects seeped in, incarceration rates for Indigenous people soared. This was because Indigenous people were released from the stranglehold of government settlements and church missions, and allowed to live in 4 towns. In doing so, they moved into the ambit of the street police and into prisons (Hogg 2001). By the late‐twentieth century (which David Garland would regard as late‐modernity), incarceration rates had escalated. This was revealed by the 1991 report of the Royal Commission into Aboriginal Deaths in Custody. Indigenous people continue to be dramatically over‐represented in custody (Joudo & Curnow 2008, 3; ABS 2007, 6).1 While, the shift to Indigenous incarceration in prisons and policy custody (as opposed to government settlements and missions) was a matter of Indigenous policies rather than crime policies in the 1960s and 1970s, there have been in more recent times a hardening of judicial views and government sentencing policies towards Indigenous offenders. Since the late 1990s, sentences for Indigenous offenders have become harsher as courts and governments have sought to make an outcast of them. This culminated in Commonwealth legislation in 2007 that removed the capacity of courts to take into account Indigenous cultural and customary factors in sentencing Northern Territory Indigenous offenders (Northern Territory National Emergency Response Act 2007 (Cth) s 91). It is from the late 1990s for which this paper considers whether Garland’s law and order framework explains the tougher stance on sentencing towards Indigenous offenders. This paper suggests that Garland’s framework in the Culture of Control does not account for processes of colonial and post‐colonial control of Indigenous people in ‘settler societies’. While his schema is able to explain the condemnation of the offender, it is unable to account for the particular judicial and government rationalisation of harsh sentencing of Indigenous